| PETITIONER | Shilpa Sailesh |
| RESPONDENT | Varun Sreenivasan |
| CITATION | 2023 SC 544 |
| DATE OF JUDGMENT | 01 May, 2023 |
| BENCH | Hon’ble Mr. Justice Kishan Kaul |
| COURT | Supreme Court of India |
FACTS OF THE CASE
The husband (31 years old) is a businessman based in Pune and the wife (27 years old) working as a director in her father’s business in Muscat, and at the time of proceeding was residing in Muscat (Sultanate of Oman). Because of the frequent dispute arising in the relationship, there was an irretrievable breakdown of marriage between them which ultimately led both parties to file a divorce petition in court.
So, in 2014, the case moved before the Hon’ble Supreme Court of India, under the provision of divorce by mutual consent i.e. Section 13-B of the Hindu Marriage Act, on the ground of irretrievable damage to the marriage. Here the court directed both parties to wait for the mandatory period of 6 months and try to settle the issues among themselves to find out a way to save the marriage.
In 2015 they filed a joint application before the court to resolve the matter. Henceforth, both parties jointly prayed to the court to invoke jurisdiction under Article 142 of the constitution to dissolve their marriage so that, firstly they can avoid the lengthy and time-consuming process of Family Courts because they are clogged with a huge volume of similar litigation and secondly to enable them to commence their respective life afresh. Considering all these factors, in 2015 the court dissolved the marriage by granting divorce to the parties by mutual consent. The two-judge bench of the Court deferred the transfer petition to remain pending for statistical purposes, as many other similar cases were pending before the family court with the same issue and therefore refer the issue to be decided by the constitutional bench of the Supreme Court. In 2016 the two-judge bench of the Supreme Court seeks the assistance of the learned senior counsel- Mr. V.V Giri, Mr. Dushyant Dave, Ms. Indira jaisingh, and Ms. Meenakshi Arora, and referred the matter to be interpreted by a larger constitutional bench.
On September 20,2022, the matter was heard by a Constitutional Bench led by Justice Kishan Kaul and comprising Justice J.K. Maheswari, Justice Sanjiv Khanna, Justice A.S. Oka, and Justice Vikram Nath.
ISSUES RAISED:
- What is the scope and extent of powers of the supreme court to decide the matter under article 142 of the constitution?
- Whether the six-month cooling-off period, as stipulated in section13-B (2) of the Hindu Marriage Act, could be waived or reduced by the court or not?
- Whether Supreme Court can grant divorce in exercise of power under Article 142(1) of the Constitution of India when there is a complete and irretrievable breakdown of marriage despite the other spouse opposing the prayer?
CONTENTIONS FROM BOTH SIDES:
- It wads submitted by the counsel for the appellant that the Supreme Court has wide powers under Article 142 of the constitution to do complete justice in any cause or matter pending before it. Relying on previous judgments, it was argued that the Court can pass any decree or order as may be necessary to meet the ends of justice.
- It was contended that the statutory period of 6 months for moving the second motion under section 13-B (2) of the Hindu Marriage Act is only directory and not mandatory in nature. The Court has discretion to waive or reduce this period in deserving case where parties have been litigating for long and reconciliation is impossible.
- The appellant argued that the object of the 6 months is to provide time for reflection and reconsideration before divorce. However, in cases where the marriage has irretrievably broken down with no chances of reconciliation, this period only prolongs mental agony and trauma for parties.
- It was submitted that Supreme Court, in exercise of powers under Article 142, can grant divorce decree by mutual consent without waiting for the statutory period under Section 13-B (2), as continuation of marital ties would be unjust and inequitable in such cases.
- The appellant relied on previous Supreme Court judgments like Amardeep Singh v. Harveen Kaur and Amit Kumar v. Suman Beniwal to contend that the statutory cooling off period can be waived in deserving cases to do complete justice.
- It was argued that in the present case, the marriage between the parties had completely broken down with no chances of revival. The statutory period of 6 months would only extend the mental trauma and hardship already suffered by the parties during long drawn litigation.
RATIONALE OF THE CASE
- Article 142(1) of the Constitution of India: Article 142(1) of the Constitution of India reads: 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.
In Ram Janambhumi Temple Case, while interpreting Article 142(1) of the Constitution of India, the Constitution Bench had summarized the contours of the power as: “The phrase ‘is necessary for doing complete justice’ is of wide amplitude and encompasses a power of equity which is employed when the strict application of the law is inadequate to produce a just outcome. And power under Article 142 empowers a court to pass an order which accords with justice”.
In I.C. Golaknath v State of Punjab, K. Subba Rao, CJ, While invoking the doctrine of prospective overruling, held that the power under Article 142(1) of the Constitution of India is wide and elastic, and enables the Supreme Court to formulate legal doctrines to meet the ends of justice and when this court exercises jurisdiction conferred by Article 142(1) of the Constitution of India to do ‘complete justice’ in a ‘cause or matter’, it acts within the four corners of the Constitution of India. The power specifically bestowed by the Constitution of India on the Apex Court of the country is with a purpose, and should be considered as integral to the decision in a ‘cause or matter’.In Union Carbide Corporation v Union of India, Court laid specific emphasis on the expression ‘cause or matter’ and held that it covers all types of legal proceedings in court, whether they are civil or criminal, interlocutory or final. Therefore, the court came to the conclusion that it has the authority to go beyond the limit of statutory laws and has precedence over them.
- Section 13-B of The Hindu Marriage Act, 1955: Section 13-B provides for divorce by mutual consent between parties on the ground that they have been living separately for atleast one year, have not been able to live together and have mutually agreed to dissolve the marriage. Section 13-B (2) states that on a joint motion by both parties after 6 months but before 18 months of the initial motion, if the petition is not withdrawn, the Court shall pass a decree of divorce if satisfied regarding the averments. This in effect requires a ‘cooling off’ period of 6 months for divorce by mutual consent.
Under section 13-B, there is a mandatory waiting period of 6 months for divorce by mutual consent. However, the court held that it has power to grant divorce by mutual consent without adhering to the procedures given in section 13-B. The Supreme Court in Amardeep Singh V Harveen Kaur discussed the question whether the cooling-off period of six months is mandatory or discretionary. It was held that the Cooling-off-period can be waived by the court where the proceedings have remained pending before the court for a long ,thus only in some exceptional situations. The court held that, in view of settlement between parties, Court has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement bound by the second motion. This power should be exercised with care and caution, keeping in mind the factors stated in Amardeep Singh and Amit Kumar case.
- Granting divorce under Article 142(1) where one-party objects the divorce petition: Referring to the foreign judgment in Owens v. Owens (2018) which recognized fault theory in divorce, the court held that apportioning blame for divorce is subjective and difficult task. Not granting divorce on ground that one party objects to the petition would force the parties to live a miserable life together for marriages with irretrievable breakdown. Hence, in deserving cases where one party opposes to the divorce petition, like Naveen Kohli v. Neelu Kohli (2006), the court granted divorce by exercising its power under Article 142 on grounds of irretrievable breakdown pf marriage, in the best interest of the parties in order to do complete justice. The Court held that, in exercise of power under Article 142(1) of the Constitution of India, Court has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be exercised to do ‘complete justice’ to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. The court, as a court of equity, is required to also balance the circumstances and background in which the party opposing the dissolution is placed.
DEFECTS OF LAW
The word ‘complete justice’ in Article 142 is not properly defined and is subjective creating ambiguity in the term. This means that it could allow misuse of its discretionary power by the Supreme Court. It must look into and weigh the facts and circumstances of the case. It must use its power under Article 142 without violating the fundamental rights of the parties. It must not ignore the existing statutory provision nor create provisions that contravene them. It can also be inferred that the case involved departure from statutory provisions under Hindu Marriage Act of 1955. It could be recognized as judicial overreach by the court.
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 allow the dissolution of the marriage on
grounds of an irretrievable breakdown even 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 unable to live together and have mutually agreed that the marriage should be dissolved.
The Supreme Court has taken a progressive stand in this landmark judgment by expanding the horizons of its special remedial powers under Article 142(1) of the Constitution. While reaffirming the sanctity of marriage as an institution, the Court has also recognized the need for pragmatic legal solutions when faced with dead and estranged marriages. The Court has prudently laid down guiding principles and safeguards for exercise of its extraordinary powers under Article 142(1) to decree divorce in deserving cases involving irretrievable breakdown of marriage. Thereby, the Court aims to prevent undue prolonging of traumatic matrimonial litigation which serves no purpose but to exacerbate the misery of estranged couples.
AUTHOR:
Nadeem
Law Centre-2, Faculty of Law, University of Delhi