A five-judge Constitution bench comprising Justices Sanjay Kishan Kaul, Sanjiv Khanna, A.S. Oka, Vikram Nath, and J.K. Maheshwari, orally observed that two very good people may not be good partners, pointing out that in some cases, people have lived together for a considerable time, yet the marriage breaks down.

Senior advocate Indira Jaising, amicus curiae, contended that when a divorce petition is filed, there are allegations and counter-allegations.

The bench noted divorce is based on fault theory, under the Hindu Marriage Act, however irretrievable breakdown of the marriage could be a practical reality on ground – without getting into the issue of blaming each other.

On the aspect of fault theory, the bench said there could be allegations that the wife is not making morning tea for the parents and it is very subjective. It further added that social norms could be at the root of issues — distinction on the nature of work, what should be done by a woman or a man.

The bench queried as to where it could attribute fault, since the social norms are changing, which is the ground reality. It added that what is attributed as fault, may not be a fault but understanding of a social norm.

It will continue to hear arguments in the matter on Thursday.

The top court is examining what could be the broad parameters for the exercise of powers under Article 142 of the Constitution to dissolve a marriage between the consenting parties without referring them to the family court.

In the family court, the parties would have to wait for the mandatory period prescribed under section 13-B of the Hindu Marriage Act. Article 142 deals with the enforcement of decrees and orders of the apex court to provide complete justice in a case.