SHILPA SAILESH vs. VARUN SREENIVASAN 2023
Case Title and Citation
SHILPA SAILESH vs. VARUN SREENIVASAN TRANSFER PETITION (CIVIL) NO. 1118 OF 2014 AND OTHERS.
Factual Background
The case arose from previous judicial doubts regarding whether the Supreme Court could use its extraordinary power under Article 142 of the Constitution of India to waive or reduce the six-month period mandated for the second motion for divorce by mutual consent under Section 13-B(2) of the Hindu Marriage Act, 1956 (HMA). Although the specific matrimonial dispute in the lead case (Shilpa Shailesh v. Varun Sreenivasan) was resolved by a two-judge bench granting divorce using Article 142 on May 6, 2015, the court kept the matter pending to address the significant and conflicting legal issues surrounding the scope of Article 142 in matrimonial matters. This led to the formulation of substantial questions of law for consideration by a Constitution Bench.
Issue(s)
The substantial questions of law presented for consideration before the Constitution Bench were:
- What is the scope and ambit of the power and jurisdiction of the Supreme Court under Article 142(1) of the Constitution of India?
- Whether the Supreme Court, while hearing a transfer petition or other proceedings, can exercise power under Article 142(1) to grant a decree of divorce by mutual consent, dispensing with the mandatory period and procedure prescribed under Section 13-B of the HMA, and also quash and dispose of other connected proceedings (such as those under the Domestic Violence Act, Section 125 Cr.P.C., or Section 498-A IPC)?
- Whether the Supreme Court can grant divorce in exercise of power under Article 142(1) of the Constitution when there is a complete and irretrievable breakdown of marriage, despite the other spouse opposing the prayer?
Decision of the Supreme Court
The Constitution Bench decided the reference by answering all three substantial questions of law in the affirmative.
Reason for the Decision
- Scope of Article 142(1): Article 142(1) confers wide and capacious power on the Supreme Court to do ‘complete justice’ in any ‘cause or matter’ pending before it. This power of equity allows the Court to depart from procedural laws and even substantive laws, provided the decision is exercised based on fundamental considerations of general and specific public policy.
- Waiver of Section 13-B(2) and Quashing of Proceedings: The power to grant mutual consent divorce and waive the cooling-off period under Section 13-B(2) HMA is permissible under Article 142(1) to do ‘complete justice’. The legislative intent behind the cooling-off period is not to prolong the agony of a marriage that has already disintegrated and where all chances of reunion have failed. When there is a genuine settlement, continuing the litigation is incoherent, and the procedure must give way to the larger interest of ending the litigation. Furthermore, based on established legal positions regarding matrimonial settlements, the Court can set aside and quash related criminal cases (like those under Section 498-A IPC) and other proceedings when conditions are satisfied.
- Irretrievable Breakdown: The Supreme Court holds that its power under Article 142(1) is not fettered by the doctrine of fault and blame (applicable under Section 13(1)(i-a) HMA). When the Court is satisfied that the marriage is “totally unworkable, emotionally dead and beyond salvation,” it is in the best interest of all parties to grant formal divorce, even if one spouse opposes it. Continuation of a failed marriage is futile and a source of misery, and public interest lies in recognizing the reality of the wrecked relationship.
Conclusion
The Supreme Court has the inherent, discretionary power under Article 142(1) of the Constitution of India to:
- Grant divorce by mutual consent and waive the statutory six-month waiting period under Section 13-B(2) HMA, provided objective criteria (such as genuine settlement, failed conciliation efforts, and long-term separation) are met.
- Quash connected proceedings (civil and criminal) based on a comprehensive settlement between the parties.
- Grant divorce on the ground of irretrievable breakdown of marriage, even in the face of opposition from one spouse. This discretion must be exercised with great care and caution, ensuring ‘complete justice’ is done, particularly by considering factors like the length of separation (e.g., above six years being relevant) and providing fair and adequate financial security for the opposing spouse and children. The power to grant divorce on irretrievable breakdown is a discretion, not a matter of right.
Case Materials:
Day 1 of Arguments: 28 September 2022 (Video Recording)
Day 2 of Arguments: 29 September 2022 (Video Recording)
