INTRODUCTION
In the matrimonial alliance the couple are tend to be together and supporting each other till the end of their lives.Marriage in Indian system is told and believed to be a sacred code of conduct and its the union of minds and is often based on self respect ,love ,affection and harmony in the absence of such elements forcing the couple to continue the marital relationship only originates to mental agony and distresss among the parties .
According to Dave Meurer the quote goes by “A great marriage is not when the perfect couple comes together .it is when an imperfect couple learns to enjoy their differences” irrespective of of the differences arising in the alliance the couple are needed to sir and solve the differences .A marriage to become a successful one needs lot of grit ,determination and patience is the whole key factor .
A marriage which is emotionally ,mentally and physically dead can no longer be serve a legal or social purpose. In ancient times the concept of separation is absence irrespective of any fights and disputes arises between the parties they are tend to continue the ties without breaking ,because it is believed in the hide marriage system that once tied knot cannot be revoked once performed the rituals cannot be forgotten that is why hindu marriage is said to be so sacred .Apart from other marriages the hindu marriage has different ceremonies as mentioned under section 7 of the hindu marriage act both husband and wife are said to take saptapadi around the Agni to not leave each other side in any of the hurdles .they are bound to take seven steps by tieing a knot and holding each other hands .
In marriages , irretrievable breakdown refers to a case where a marriage is has deteriorated to such extent that it is beyond repair and the reconciliation of the parties is highly not possible. This case with the issue “Whether the cooling period prescribed in sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955 can be waived or bring down by the Court under the implication of the jurisdiction of the courts under Article 142 of the Constitution?” . This decision is delivered by a bench of three judges’.
BENCH
Hon’ble.justice JK Maheshwari ,Hon’ble Justice Vikram Nath,Hon’ble Justice Abhay S Oka ,Hon’ble Justice Sanjay Kishan Kaul .,Hon’ble Justice Sanjiv khanna
PARTIES
Shilpa sailesh and Varun Sreenivasan
LAWS AND ACTS INVOLVED
- Hindu marriage act 1955
- Article 142 of Indian constitution 1950
ISSUES INVOLVED
“Whether the supreme court using its extraordinary jurisdiction under article 142(1) of the constitution grant divorce when the marriage is irretrievably broken down?”
“Whether the irretrievable breakdown of marriage be a ground for dissolution of marriage under hindu marriage act 1956?”
Whether the mandatory cooling period mentioned under section 13 (B) waived off or not?
BACKGROUND OF THE CASE
The married couple in the case naming shilpa and varun lived separately after the several attempts of failed reconciliation and mutual allegations of cruelty and domestic violence. The marital couple applied for divorce but did not undergo the binding cooling period that is evidently prescribed under section 13 (B) of the hindu marriage act .It is also observed that they suffered from irretrievable breakdown of marriage which was not considered as a ground of divorce under the hindu marriage act .
This case came into existence due to the Arisal of the primary order dated on 12.05.2010 passed in T.P{c} No.899 of 2007 ,case Neeti malviya v Raskesh Malviya wherein bench of 2 judges doubted the view on exhibitred on the previous cases of Anjana Kishore v Puneet Kishore and Manish Noel v Rhini Noel with respect to the court authority scope. These deal with the interpretation that the court in exercise of its power under article 142 of Constitution cannot reduce the period of six months for moving the second motion as stipulated in subsection two of section 13 B of Hindu marriage act, 1956. Observing this done by the court, the lower courts and other high courts, including the family courts in some states had been reducing the period of six months for moving. The second motion where there was no possibility of the spouse cohabiting .
Subsequently in the shilpa shaliest v varun sreenivasan the bench of 2 judges on 06.04.2015 issued notice to attorney general for addressing arguments on the above mentioned issues
This section 13 of hindu marriage act states as follows :
Section “13-B. 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.”
In 2017 in the case of Amardeep Singh vs Harveen Kaur the two judge bench held that the cooling period of 6 months is not mandatory and can be waived by any other family courts in exceptional circumstances .THE constitutional court also referred to the other case which is Amit kumar vs Suman beniwal the two judge bench which held that the court should also ascertain whether the parties have freely ,without any coercion or pressure made the settlement which took care of the alimony ,maintenance and custody of the children etc.
Conflict continues due to different views of supreme court in Neeti malviya v Rakseh malviya 2010 ,Anjana kishore v punnet Kishore 2002,and manish goel v rohini goel 2010.This was the reason the issue finally came to the 5 judge bench for the final verdict in the case of shilpa sailesh v varun sreenivasan .
RATIONAL
Analysing all these verdicts the other cases had the supreme court finally held 2 main verdicts which are 1.the court can invoke the powers under article 142 of indian constitution of India to grant divorce under irretrievable breakdown of marriage which is still not a statutory recognised ground 2.also to waive down the cooling period which is 6 to 8 months prescribed under section 13-B of hindu marriage act for the irretrievable breakdown of marriage by the parties
The court also said that the mutual consent divorce should highly be encouraged . In the words of Hon’ble judge justice Sanjiv khan “the courts must not encourage any matrimonial litigation ,as prolongation of such litigation is determental to both the parties who lose their young age in chasing multiple litigations .thus ,adopting a hyper technical view can be counter productive as pendency itself causes pain, suffering and harassment and consequently it is the duty of the court to ensure that matrimonial matters are amicably resolved, thereby bringing the agony ,affliction ,and torment to an end”.
It was also held that court can break down the irretrievable marriage by adopting the article 142 of the Indian constitution .The court also held that a party cannot file a writ petition under article 32 of the Indian constitution of India for the dissolution of marriage on the ground of irretrievable breakdown of marriage directly from it.
Finally the supreme court focused on these points:
“Divorce can be granted on irretrievable breakdown of marriage under article 142 of constitution of india
- Cooling period of 6 months under section 13b of hindu marriage act can be waived off under article 142 of constitution of India.
- Irretrievable breakdown of marriage is also considered as a ground under divorce .
- Parties cannot file writs under article 31 or 226 for seeking divorce on ground of irretrievable breakdown of marriage
- Remedy of divorce on irretrievable breakdown of marriage under article 142 is discretionary remedy.”
My personal views on this case is that the mutual consent form of divorce should be encouraged and should not be dragging since there are many already pending cases that courts need to deal with .this makes the courts to focus on the other things apart from dragging this .I also felt that the 6 months cooling period should be given because any marriage needs time to reconcile ,and in many cases it has been observed that the parties again are willing to cohabit and remarry after the granting of divorce ,so it maybe better if the parties are given ample of time to decide thoroughly .the courts interference in the matters is also highly accepted
The hon’ble supreme court in the matter of shilpa shaliesh vs varun sreenivasan held that when the marriage is beyond repair and the disinterest or unwillingness of the Both parties to continue the marital ties it just simply paves the way to dead relationship ,by implementing the article 142 the court respectfully fills the gap and delivers the justice in the modern life and dignity of the parties .
Its also observed that the cost held that if the parties tried all the ways to maintain the ties but failed to maintain and mutually agreed to get separated keeping them and such proceedings wait defeats peace and justice in the country .
When the cooling period is not mandatory?
Cooling period in general states that when the parties are filing for divorce the hon’ble court gives them a chance to reconsider their decisions from first motion to second motion .during this period parties are said to reanalyse their taken decisions and can step back if they are not willing to perform so ..So is this cooling period mandatory ??This is the question of fact when the cooling period is not mandatory depends on the parties and its upon the discretion of the court whether to waive the cooling period or not MUTUAL DIVORCE is mandatory for the waiving of the cooling period also the condition of irretrievable breakdown of marriage too ,however the apex court held that the period can be waived off when :
-parties have been living separately over a long Period of time ,
-frequent attempts of reconciliation have been made but failed to perform so,
-the parties are mutually on the same page to get seperated and has no objecting party opposing the decision on the other part.
DEFECTS OF THE LAW
In the case of shilpa sailesh vs varun sreenivasan the court held that the cooling period which is 6 months to 8 months the period is not mandatory if the parties are mutually agreeing to get divorce .the defects of the law are null in the state of the case .
The judgement by the apex court marks a fundamental alteration in Indian matrimonial disputes .it also clarified the doubts raised by the lower courts and other family courts of the state whether to waive down the cooling period or not in the case of mutual divorce which is in the irretrievable breakdown of marriage and also stated that use of article 142 in the matrimonial disputes and how to clarify it with help of the article and passed comprehensible guidelines for its exercise.the use of article 142 is only accessible to supreme court not to any other lower court or family court .
If there is no irretrievably breakdown of marriage as a ground under hindu marriage act under divorce it is bound that couples be in a dead relationships which amounts to more mental agony and stress .if the striking down of cooling period is is mandatory then the parties experience delay in justice unnecessarily and have to sustain the marriage with pressure .
According to many couples it is right to waive the cooling period off as it makes the parties to survive the ties mandatorily which might affect them both mentally and physically ,during the heat of the time couple are entitled to fast breakdown of marriage due to the pressure and torture that they are going through and the grave impact lies on the children if they have any ,children often who witness their parents get separated and fight in front of them they are prone to mental agony and are also seen under depression .the child centric divorce laws also must be ensured making the child feel safe and comfortable .In the most of the cases its seen that parents stop from getting g divorced due to the children needs and forgive each other and go through the same troubles each and every single day only to take care of the child this needs to be challenged .
INFERENCE
Subjective to the cases and all the citations presented in the case commentary this paper argues that the cooling period of 6 to 8 months which is mentioned in the hindu marriage act under section 13 need not to be mandatory ,it totally lies upon the discretion of the court whether to waive down or not..it is also believed that the marriage once made irretrievable the couple find it hard to come back together so the only option left to the parties are to break the marital ties .
In my opinion I wholly agree to the verdict as already mentioned previously ,the marriage or the relationship that has no emotion ,love , mutual interest and respect is equivalent to dead marriage .rather than the couples staying in and suffering the tie its advised to mutually part ways ,such thing not only leads their peace of mind and absence of mental agony stress but also they live happily when the ways are parted ,move on in their life…there is another aspect in the analysis where the people might be focusing less which is the effect on the children after the divorce of the parents ,comparatively the other countries have the highest amount of divorce rate than to that of India ,however the statistics now complied shows that Indian divorce rate also is gradually rising due to many affecting factors such as independence, incompatibility ,lack of adjustment, financial crisis and unrealistic expectations…as per the Puranas the couple did not end the marital ties ,by hook or crook they are bound to live together till the death parts them ..
REFRENCE
-manu Sebastian ,article on Irretrievable break down of marriage visited on 24 July 2025 .https://www.livelaw.in/top-stories/irretrievable-breakdown-of-marriage-a-ground-to-dissolve-marriage-invoking-article-142-powers-supreme-court-227617
-Madras law journal visited on 23 July 2025
Likhitha munagala
Pendakanti law college Hyderabad