The case of Shilpa Sailesh v. Varun Sreenivasan is a watershed moment in Indian Family Law, introducing in a unused worldview in the judiciary’s approach to conjugal issues and separate. This case bargains with critical lawful questions with respect to the scope of the Supreme Court’s powers beneath Article 142 of the Indian Constitution.
The Supreme Court examined whether it might utilize its specialist to provide a divorce by mutual consent, circumventing the six-month waiting time required beneath Section 13B (2) of the Hindu Marriage Act. This waiting period is implied to give life partners time to consider and perhaps accommodate some time recently finishing their divorce.
The Bench ruled that the Hindu Marriage Act’s six-month cooling-off period might be waived in certain situations. Notably, the Court suggested that a divorce might be issued in this manner even if one of the parties did not agree to the order.
However, the Bench reaffirmed a rule that states that parties cannot seek dissolution of their marriage directly from the High Courts or the Supreme Court.
About the Case:
SCR Citation: [2023] 5 S.C.R. 165
Date of Judgement: 01 May 2023
Petitioner: Shilpa Sailesh
Respondent: Varun Sreenivasan
Bench of Justices: 5 Justices
Judgement Delivered by: Hon’ble Mr. Justice Sanjiv Khanna
Court: The Supreme Court of India
Case Type: TRANSFER PETITION (CIVIL) No. 1118 of 2014
Facts:
Varun Sreenivasan (31 years old) is a businessman based in Pune and Shilpa Sailesh (27 years old) working as an executive in her father’s commerce in Muscat, and at the time of the proceedings, was dwelling in Muscat. Due to frequent disagreements, there was an irretrievable breakdown of their marriage and both parties filed for divorce in court.
Lower court reconciliation attempts failed to address marital issues like communication breakdowns, wrongdoing claims, and irreconcilable differences. The case was taken to higher courts, where the Supreme Court intervened due to the complexities and legal issues. The Supreme Court’s intervention allowed for a final judgement.
In 2014, the case moved some time recently the honorable Supreme Court of India, beneath the arrangement of Divorce by Mutual Consent beneath Section 13B of the Hindu Marriage Act, on the ground of irretrievable damage to the marriage. Here, the court directed them six-months waiting time for them to settle their marital issues to save the marriage.
In 2015, they filed a joint application with the court to resolve the issue. Both the parties requested that the court dissolve their marriage under Article 142 of the Constitution to avoid the lengthy and time-consuming process of Family Courts, which are overburdened with similar litigation. This would permit them to begin over. Finally, the court dissolved the marriage based on mutual consent. The Court’s two-judge bench deferred the transfer petition for statistical reasons, citing multiple pending cases in the family court with the same issue. The issue was then referred to the Supreme Court’s constitutional bench for decision.
In 2016, the two-judge bench of the Supreme Court look for the help of the learned senior counsel- Mr. V. Giri, Mr. Dushyant Dave, Ms. Indira Jaising, And Ms. Meenakshi Arora, and alluded the matter to be deciphered by a bigger constitutional bench.
On September 20, 2022, the matter was heard by a Constitutional Bench which was led by Justice Sanjay Kishan Kaul and comprises of other four-judge bench – Justice J.K. Maheshwari, Justice Sanjiv Khanna, Justice A.S. Oka, and Justice Vikram Nath.
The allegations in the case included mutual claims of cruelty, domestic violence, and the irretrievable breakdown of the marriage. Key legal provisions in this case included Article 142(1) of the Constitution of India, Section 13-B of the Hindu Marriage Act, the Domestic Violence Act, Section 125 of the Cr.P.C., and Section 498A of the IPC.
Issues Raised:
- What is the scope and degree of powers of the Supreme Court to choose the matter beneath Article 142 of the Constitution and whether the six-month cooling-off period, as stipulated in Section 13-B (2) of the Hindu Marriage Act, could be deferred or decreased by the court or not?
- Whether ‘Irretrievable breakdown of marriage’ can be a ground for the disintegration of the marriage as this ground is not statutorily recognized by the Hindu Marriage Act and does Supreme Court have the capacity beneath Article 142 of the Constitution of India to deal with the matter?
- Whether Supreme Court can grant divorce in exercise of power beneath Article 142(1) of the Constitution of India when there is a total and irretrievable breakdown of marriage in spite of the other spouse contradicting the supplication?
Petitioner’s Contentions
The petitioner, Shilpa Sailesh, in the case contended for a divorce based on few fundamental points.
- According to the respondent, Article 142 of the Indian Constitution empowers the court to modify existing regulations as needed.
- The petitioner requested the court to grant a divorce, even if it violated Section 13B of the Hindu Marriage Act, to provide a fair judgement.
- She suggested that the court to grant a divorce if the marriage is entirely broken down, even if one party objects as waiting for both to agree may just only exacerbate the matter.
The petitioner argued that the court should focus on doing what is fair and reasonable, even if it means deviating from traditional procedures. She also requested that the court evaluate the emotional and practical issues in the marriage. This manner, she hoped for a divorce that took into account the specific issues in her case, resulting in a more rational and sympathetic judgement.
Respondent’s Contentions
Varun Sreenivasan, the respondent in the case, had distinctive thoughts regarding the divorce. He contended against a few of Shilpa’s points.
- He contended that Article 142, ought to be, utilized to keep the regular rules the same. He believed in following the steps set by the law.
- The respondent disagreed with the idea of ending a marriage without the mutual agreement of both parties, which is outlined in Section 13-B of the Hindu Marriage Act. He felt that this was essential to ensure that both parties were in agreement about the divorce.
- The respondent’s belief was that divorce should not be solely based on irretrievable breakdown. He preferred that the court adhere closely to the rules specified in the law and avoid significant deviations from them.
The main argument of the respondent was that it was crucial to adhere to the existing norms and procedures with minimal changes. He believed in a method that would ensure fairness and justice in divorce proceedings. His perspective was to adhere to the legal framework and processes as they are written, even if it meant implementing a more stringent procedure.
Rationale
- Scope and Ambit of Supreme Court’s Power under Article 142
The Supreme Court addressed the scope of Article 142(1) and its jurisdiction. The Court alluded to the case of M Siddiq v. Mahant Suresh Das, which given a wide scope for the express ‘as is necessary for doing complete justice’. This control permits the court to make and pass orders in the intrigued of equity, as long as the positive law is particular and clear. Thus, ‘to do complete justice’ is the directing rule of Article 142(1).
The Court also referred to the case of Union Carbide Corporation v. Union of India, to distinguished the power of the Supreme Court under Article 142 from that of Civil Courts and High Courts under Section 151 of CPC and Section 482 of CrPC, providing these Courts with power to make and pass such orders as may be necessary to meet the ‘ends of justice’ and to prevent abuse of procedure of court.
The Supreme Court Bar Association v. Union of India established that orders can only be passed to balance claims by addressing creases in cause of matter. This grants unfettered jurisdiction in various proceedings, including civil, criminal, final, and interlocutory. The Court’s powers under Article 142(1) are wide enough to meet the ends of justice, surpassing those of Civil Courts and High Courts under relevant sections of CPC and CrPC.
- Supreme’s Court Power Regarding Waiver of Statutory Provision and Quashing of Related Proceedings
The Supreme Court debated whether it could set aside a 6 months period under Section 13 B of the Hindu Marriage Act, 1955, and quash other divorce and settlement proceedings, while also determining the circumstances under which such powers could be exercised.
The Court endorsed the rules in Amardeep Singh v. Harveen Kaur case with respect to the six-months cooling period under 13 B of the Hindu Marriage Act, 1955, holding that the said cooling period was discretionary and may be deferred off as it was not obligatory in nature.
If reconciliation is impossible, the parties have been living separately for a long time, and attempts to salvage the marriage have failed, a waiver must be granted. This can be done if the required period of one year and six months before presenting the second motion has already been completed, mediation or conciliation efforts have been worthless, the parties have settled issues like alimony and custody, or if the waiting periods would prolong the misery.
Next, the Supreme Court can quash other proceedings related to a matrimonial dispute pending before it, as a decree passed by the court is executable throughout India. This is because parties must have filed suits in various courts and judicial forums, making the pleas cumbersome. The court has a duty to ensure timely and amicable settlement of matrimonial disputes without undue delays, thus quashing other proceedings related to divorce.
- Supreme Court’s Power to Grant Divorce with Consent of Just One Spouse
The third issue raised the Hon’ble Supreme Court was whether, whereas exercising power beneath Article 142(1), can the court give divorce, when there is a total breakdown of marriage, in show disdain toward of the other spouse restricting the prayer.
The Court alluded to Ashok Hurra v. Rupa Bipin Zaveri case, where it was held that if no valuable reason, both passionate and down to earth, would be served in putting off the misery of the parties or their marriage, at that point the same ought to be put to a stop. The court, in this manner, exercised the control beneath Article 142(1) to allow a decree of divorce.
The judges argued that excessive fault-based divorce encourages offenses and exacerbates rifts, and if separation is inevitable, the court should grant divorce in the best interests of both parties.
The Munish Kakkar v. Nidhi Kakkar case involved a two-decade-long dispute over divorce. The court recognized the futility of the broken-down marriage and granted divorce even without a request. The court ruled that granting divorce on the grounds of irretrievable breakdown is discretionary and should be used cautiously, and the court must be satisfied that the marriage is unworkable and beyond reconciliation.
Defects of Law:
Firstly, the scope and ambit of the Supreme Court’s control beneath Article 142(1) was hazy some time recently the Shilpa Sailesh v. Varun Sreenivasan judgement. The court considered previous judgments and held that it can depart from procedure and substantive laws as long as the decision aligns with general public policy. The court must consider substantive provisions enacted, not ignore them, and exercise discretion in a ‘cause or matter’ manner. This case clarified the existing ambiguity in the law.
Secondly, the Supreme Court of India has clarified that a party cannot directly approach the Supreme Court for relief of irretrievable breakdown of marriage by filing a writ petition under Article 32 of the Constitution. The court reiterated its previous ruling in Poonam v. Sumit Tanwar, stating that the remedy for grievances should be to seek redress from a superior tribunal. The court also stated that relief under Article 32 can only be sought to enforce rights conferred by Part III of the Constitution of India, and not to correct judicial orders. Therefore, a party cannot file a writ petition under Article 32 and seek relief of dissolution of marriage directly from the court. This decision would save the Apex Court from numerous litigations and time wastage.
Thirdly, The Hon’ble Supreme Court has the watchfulness to break down a marriage by passing a decree of divorce by mutual consent, without being bound by procedural necessities. This power should be exercised cautiously, considering factors in Amardeep Singh (supra) and Amit Kumar (supra). A holistic and comprehensive settlement is essential for cohabitation or a peaceful resolution. The Apex Court can also quash and set aside other proceedings and orders under Article 142(1) of the Constitution of India.
Lastly, The Supreme Court can grant divorce under Article 142(1) when a marriage has completely broken down, despite opposing spouses’ prayers. This optional control is exercised to give total equity to the parties, guaranteeing that the marriage has fizzled and the continuation of the formal relationship is unjustified. This provision allows the court to end suffering without considering further reconciliation attempts.
Inference:
In this case, the apex court ruled that it has the power to dissolve a marriage if it is irretrievably broken down. The Supreme Court can waive the mandatory six-month waiting period for divorce under the Hindu Marriage Act, 1955, and permit the disintegration of the marriage on grounds of an irretrievable breakdown indeed if one of the parties is not willing. The ruling allows parties to bypass the waiting period and approach the Supreme Court directly for a divorce on grounds of irretrievable breakdown. If there is no possibility of reconciliation dissolving such a marriage, even if one of the parties agrees, would provide a speedy solution for both parties who are incapable of living together and having a mutual agreement that the marriage ought to be dissolved.
The judgment is significant as irretrievable breakdown of marriage is not yet a ground for divorce under the Hindu Marriage Act, of 1955. To date, there is still no codified law for irretrievable breakdown of marriage. The Law Commission in its 71st report in 1978 and once more in 2009 recommended the inclusion of unrecoverable breakdown as an extra ground for divorce.
The judgment is moreover exceptional as Supreme Court clarified that a party cannot file a writ petition beneath Article 32 (or Article 226) of the Constitution of India and look for alleviation of disintegration of marriage on the ground of unrecoverable breakdown of marriage specifically from it.
Lalruatfeli Varte
Dr. B. R. Ambedkar National Law University, Sonepat, Haryana