BACKGROUND
Case Name: Shilpa Sailesh v. Varun Sreenivasan
Acts Involved: Constitution of India; Hindu Marriage Act, 1955
Important Provisions: Article 142, Section 13B
Court: Supreme Court
Bench: Justices S.K. Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath, and J.K. Maheshwari.
Petitioner: Shilpa Sailesh
Respondent: Varun Sreenivasan
Case type: TRANSFER PETITION (CIVIL) / 1118/2014
Date of Judgement: 1 May 2023
INTRODUCTION
Shilpa Sailesh v. Varun Sreenivasan is a case that highlights the nuances of matrimonial disputes and the many legislations in place to ensure the deliverance of justice in cases of such nature. Here, the petitioner, Shilpa Sailesh filed for divorce from her husband Varun Sreenivasan on the grounds of “irretrievable breakdown of marriage”, which is not a statutory ground. However, the Supreme Court not only allowed the divorce by considering the grounds acceptable according to Article 142 of the Indian Constitution, but also waived off the cooling period of 6-18 months, as stated under section 13-B of the Hindu Marriage Act, 1955.
The judgement, being as poignant as it is in proving that judiciary in its discretion is progressing along with the realms of society, while being incredibly flexible in moulding and modifying itself to fit the new dichotomy of issues and disputes arising with newer generations, didn’t fail to garner widespread attention and opinions, both in favour and against the judgement, leading to the conclusion that despite this being a landmark case for the future jurisdiction in cases of such matrimonial dispute, it is still lacking in many aspects and should be thoroughly examined.
FACTS OF THE CASE
The petitioner, Shilpa Shailesh and her husband, the respondent, Varun Sreenivasan, had been living separately for 6 years citing intensive marital disputes, despite the many attempts of reconciliation made by both parties. During this time period, they resorted to (1)various legal avenues, including domestic violence proceedings under the Domestic Violence Act and section 125 of the Criminal Procedure Code (CrPC) and criminal prosecutions under Section 498-A of the Indian Penal Code, further cementing their resolve in ending the marriage.
(2)In 2014, the parties approached the Supreme Court to grant them divorce under article 142 citing delays by the Family Court, on the grounds of “irretrievable breakdown of marriage”, which is not a ground for divorce under the Hindu marriage Act, 1955. Their appeal was accepted and they were granted the divorce by the Apex Court in 2015. However, the case was kept pending citing the courts observation and need to further examine the issues faced during the many similar petitions filed prior to this.
(3)In June 2016, the case was referred by the supreme court to a 5-judge constitutional bench led by Justice S.K Kaul, including A.S. Oka J, Sanjiv Khanna J, Vikram Nath J, J.K. Maheshwari J, which delivered the judgement on the 1st of May 2023.
ISSUES RAISED
- Whether Article 142 of the Constitution should allow the court to waive or reduce the time period prescribed under section 13-B of the Hindu Marriage Act,1955 ?
- Whether the Court should exercise its power under article 142 to grant divorces on the grounds of “Irretrievable Breakdown” ?
- Whether the court should allow a divorce on the grounds of irretrievable breakdown of marriage, even if it is demanded by only one of the spouses ?
CONTENTION
PETITIONER:
The petitioner, Shilpa Sailesh raised the following arguments in favour of her appeal in court;
- Article 142 of the Indian Constitution empowers the court to pass any judgement or decree to ensure complete justice.
- Demanded divorce, by stating provisions not included in the Hindu Marriage Act by stating that the marriage has suffered an “irretrievably breakdown”.
- The court should allow divorce on the ground of irretrievable breakdown of marriage even when only one of the spouses demands of it, to maintain fairness and justice to ensure a party isn’t forced to stay in a marriage that is non-negotiably unsalvageable.
RESPONDENT:
The respondent, Varun Sreenivasan presented the following arguments in his defence;
- That the alteration and application of Article 142 of the constitution in place of usual regulations should not be applied.
- That he would like to dissolve the marriage by mutual consent.
- That “irretrievable breakdown” should not be applicable as the only ground for divorce and that fair and just judgement should be delivered by following strict rules and laws.
RATIONALE
Here, the Supreme court granted the divorce by waiving off the cooling period set under Section 13-B of the Hindu marriage act,1955 i.e. (4) “Divorce by Mutual Consent;
(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree”, instead the supreme court exercised its power under Article 142 i.e. (5) “Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.
(1)The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
(2)Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.”
(6 ) “The supreme court stated that this provision allows the it to do complete justice in any ‘cause or matter’, reiterating that the supreme court may go beyond the bounds of the procedural and substantive law to achieve the ends of justice.” The Court has power under Article 142 to dissolve the marriage on the ground of irretrievable breakdown. This discretionary power is exercised to ensure ‘complete justice’ for the parties, where the court is satisfied that there is no chance of reconciliation left between them, thus the court has the power to grant them divorce. And this also involves the theory of dissolving a marriage even at the demand of only one spouse in the case of “irretrievable breakdown”, as no spouse should be forced to continue in a wrecked marriage, especially if the judiciary is convinced that no reconciliation is possible.
The decision was passed after careful consideration over various other factors such as the nature of allegations made between the parties, any allegation regarding family and orders during proceedings, the time period for separation, the existence and custody of children, and how they will be supported, provided for and maintained.
(7) “Another fact to keep in mind is that, while the supreme court does hold “irretrievable breakdown of marriage’ as a ground to grant divorce by invoking its powers under Article 142 of the Constitution, it also needs to be clarified that a party cannot file a writ petition under Article 32 of the Constitution of India and seek relief of dissolution of marriage on the ground of ‘irretrievable breakdown of marriage’ directly from it.”
DEFECTS OF THE LAW
The Supreme Court allowed the divorce on grounds of “irretrievable breakdown” of marriage, such aground is not present in original statute which means it is completely dependent on the discretion of the court to grant divorce, despite there being no guidelines in place for it. Due to this it may be subject to many a complication down the line when it is applied to more and more such cases. No doubt the judgment can be beneficial for many, but that does not rule out the possible risk of complications in its applicability. Such as;
BURDEN ON JUDICIARY:
Given there is no specified law regarding this in statute, this creates issues regarding the comprehension of its applicability. This might burden the court as it has to look over all the situations and circumstances before determining the judgment and this might cause even more delay in our already struggling justice deliverance system.
JUDICIAL OVERREACH:
(8) “Judicial overreach occurs when a judicial body acts beyond its jurisdiction and interferes in areas which fall within the executive and/or legislature’s mandate.” This case is a clear example of Judicial Overreach as the Judiciary passed a judgment by interpreting and applying a law which is not originally present in the statute.
LACK OF SPECIFIED CRITERION:
There is a lack of clear classification and guidelines when it comes to its applicability, despite the courts efforts to ensure more stability here by setting some specific considerations for the judgement, it still does not completely negate the risk of comprehensive confusion in circumstances including other additional factors in cases such as the above.
MISUSE OF POWER:
Decisions made according to Section 142 are completely based on the discretionary power of the judiciary, this is concerning as there are no mechanisms yet in place for its review and thus are at risk of arbitrary decision making and external interference and manipulation of judgements.
INFERENCE
The Judgement delivered by the supreme court is invariably impactful in the regard that it proves and reiterates the judiciary’s ability to mould and modify according to the changing dynamics of the society and the many issues that such changes might bring forth, this judgement is also poignant in the fact that purely from a individualistic point of view it ensures that no party has to be forced into a marriage that has suffered an “irretrievable breakdown”, with no possibility of reconciliation at all.
But it also imperative that we shed light on the fact that there are no proper guidelines in place for its regulation and this might lead to interim chaos when its applicability is challenged as more and more such cases are brought forth before the judiciary.
Thus, it is incredibly imperative that the legislature brings about necessary considerations in place to ensure that “irretrievable breakdown’ works as a statute and put forth necessary guidelines in place to ensure that such conditions are followed for the proper use of the statute. A review mechanism should also be introduced to ensure no arbitrary or externally manipulated decision making happens and that the judiciary is left free to make fair and just decisions regarding all its issues.
CITATIONS
(1) Astitva Singh, Redefining divorce Dynamins and Decoding Judicial Boundaries: Unravelling the Impact of Shilpa Sailesh v. Varun Sreenivasan, 1, DNLU-SJ(Online), para 6, 2023.
(2) Advay Vora, SC’s Power to Directly Grant Divorce: Judgement in Plain English, (May.1, 2023), https://www.scobserver.in/reports/divorce-under-article-142-judgement-in-plain-english/.
(3) Advay Vora, SC’s Power to Directly Grant Divorce: Judgement in Plain English, (May.1, 2023), https://www.scobserver.in/reports/divorce-under-article-142-judgement-in-plain-english/.
(4) The Hindu Marriage Act, 1955, §13B(Ind.).
(5) INDIA CONST. art142 of 1949, (Ind.).
(6) Advay Vora, SC’s Power to Directly Grant Divorce: Judgement in Plain English, (May.1, 2023), https://www.scobserver.in/reports/divorce-under-article-142-judgement-in-plain-english/.
(7) Ashok KM, Parties Cannot Directly Approach Supreme Court Under Article 32 Seeking Divorce On Ground Of Irretrievable Breakdown Of Marriage : SC, LIVELAW.in( May.1, 2023), https://www.livelaw.in/supreme-court/supreme-court-writ-petition-dissolution-of-marriage-irretrievable-breakdown-227646
(8) R Suttner, “The Question of ‘Judicial Overreach’” Polity (May.22, 2017), http://www.polity.org.za/article/the-question-of-judicial-overreach-2017-05-22.
Manika Singh
Gautam Buddha University, Noida.