Court: Supreme Court of India
Bench: Justices S.K. Kaul, Vikram Nath, AS Oka, JK Maheshwari and Sanjiv Khanna
Judgement: May 1, 2023
Citation: Shilpa Sailesh v. Varun Sreenivasan, 2023 SCC Online SC 544
FACTS OF THE CASE:
The couple Ms. Shilpa Shailesh and Mr. Varun Sreenivasan tied knot on February 17, 2002, in Mumbai, following the Hindu rites and customs. After marriage they shifted to Thiruvatnapuram in Kerela. Differences arose between them and they started living separately from January 2007, according to the husband, and from May 2007, according to the wife. It was found that the reconciliation between the parties was not possible.
Later on, before the Family Court in Thiruvatnapuram, Mr. Varun filed a divorce petition in 2010 seeking divorce from her wife on the grounds of cruelty, alleging that Shilpa pressured him to leave his family and live at her matrimonial house that is with her family. According to him, she also neglected and disrespected his family and behaved badly towards guests and elders and also created disturbances at night.
On the other hand, there were various other pending proceedings before the Courts in Kerela. Ms. Shilpa initiated domestic violence proceeding under section 125 CrPC against Mr. Varun and his family members, claiming maintenance from Mr. Varun. Whereas, Mr. Vaun along with his family members filed a criminal complaint against Ms. Shilpa committing offences under Section 498A IPC. While the proceeding was pending, both the parties found that they can dissolve their marriage by mutual consent under Section 13B of the Hindu Marriage Act, 1955.
They entered into a settlement in 2014 to avoid complexity. According to which, Mr. Varun agreed to pay maintenance of Rs. 50 lakhs to Ms. Shilpa for all her claim. For her part of the settlement, Ms. Shilpa filed the present transfer petition before the Supreme Court seeking transfer of the divorce proceeding and dissolution of marriage by mutual consent under Section 13B of Hindu Marriage Act, 1955.
In 2015, the Supreme Court while exercising its extraordinary jurisdiction under Article 142 of the Indian Constitution, granted divorce by mutual consent to the parties on the ground of ‘irretrievable breakdown of marriage.’ The court also found it necessary to define the extent of powers of the Supreme Court under Article 142 of the Indian constitution.
In 2016, a two-judge bench of the Supreme Court entertained the petition and amicus curae were appointed to decide upon the scope and ambit of Article 142 to grant divorce and other related issues. The bench headed by Justice Sanjay Kishan Kaul heard the matter on 20th September, 2022. On 1st May 2023, the Constitutional bench passed its judgement citing the scope of Supreme Court’s power under Article 142 of the Constitution of India, while resolving other related issues highlighted in the case.
ISSUE RAISED:
- To identify the scope of Supreme Court’s power and jurisdiction under article 142 of the Indian constitution.
- Whether the Hon’able Court can waive off the 6- months cooling off period stated under section 13B of the Hindu Marriage Act, 1955?
- On grounds of irretrievable breakdown of marriage, whether the supreme court can grant divorce under article 142(1) where one party objects the divorce petition?
CONTENTIONS:
The arguments of the parties were advanced as below:
- It was stated that the Supreme Court consists power to allow dissolution of marriage under article 142 where it can be reasoned that the case involved irretrievable break down of marriage. The council referred to its previous judgement such as Amardeep Singh v. Harveen Kaur and Amit Kumar v. Suman Beniwal to argue that the Hon’able court has power to pass any decree or order like waiving the cooling off period to do complete justice.
- It was put forward before the court that the court has discretion to waive or reduce the 6-month statutory period under Section 13B (2) in deserving cases where marriage has been irretrievably broken down and the case has been drawn for long and reconciliation is impossible. It was contended that the 6-month period will only lead to mental trauma and hardship for the parties.
- It was also argued that cruelty including mental and physical cruelty (V. Bhagat v. D. Bhagat) can lead of irretrievable breakdown of marriage and even if there is no explicit reason for the irretrievable breakdown of marriage, it is in discretion of the court to grant divorce on grounds of cruelty based on specific circumstances, background and temperament of the parties
- It was also put forward that the court should grant divorce irrespective of who is at fault or where one party is held more accountable for situations leading to divorce. It was also contended that the divorce should be denied only in case where reconciliation between the parties involved is possible.
- It was further submitted that in the present case, there were no chances of revival of marriage between the parties. The counsel asserted that in the interest of justice, equity and good conscience, the supreme court may grant divorce while exercising its extraordinary jurisdiction under Article 142, even if there is no provision for irretrievable breakdown of marriage.
RATIONALE:
The present case involved the following rationale:
- Article 142 of the Indian Constitution
According to this article the SC has wide powers to pass any order or decree while exercising its jurisdiction as it deems necessary to do complete justice in any cause or matter pending before it and such a decree or order passed shall be enforceable throughout India and can be subject to variance with statutory provisions, in order to do complete justice.
The court referred to its previous judgement of I.C. Golak Nath v. State of Punjab (1967), stating that it has wide and flexible powers to provide relief beyond the scope of statutory provisions. In the case of Union Carbide Corporation v. Union of India (1991), it was held that the powers granted by the Constitution of India under Article 142 cannot be limited by statutory laws unless they involve crucial public policy.
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.
Under Hindu Marriage act, irretrievable breakdown of marriage is not a ground for filing a divorce petition. However, referring to its judgment in Naveen Kohli v. Neelu Kohli (2006), Ashok Hurra v. Rupa Bipin Zaveri (1997), the court held that irretrievable breakdown of marriage can be a legitimate ground for divorce under Article 142(1).
- Section 13B of the Hindu Marriage Act, 1955
According to this section, divorce can be granted to parties on mutual consent providing they have been living separately for at least one year, have not been able to live together and mutually agreed to dissolve the marriage. However, the court held that it has the power to grant divorce by mutual consent without adhering to the procedures given in section 13B. Additionally, the court has discretion to dismiss related legal proceeding filed under Domestic Violence Act, Section 125 of the Criminal Procedure Code, or criminal charges under Section 498-A of the IPC.
Under section 13B (2), there is a mandatory waiting period of 6 month for divorce by mutual consent. The court referred to Amardeep Singh v. Harveen Kaur (2017), the court held that it can waive this waiting period under article 142, in cases where marriage has been broken down and there is no chance of reconciliation.
- Granting divorce under article 142(1) where one party objects the divorce petition:
Referring to the foreign judgement in Owens v. Owens (2018) which recognized fault theory in divorce, the court held that apportioning blame for divorce is subjective and a 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 of marriage, in the best interest of the parties in order to do complete justice.
DEFECTS OF LAW:
The words ‘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 powers under article 142 without violating the fundamental rights of the parties. It must not ignore the existing statutory provisions 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 landmark case brought before the Supreme Court of India, the bench addressed issues related to divorce by mutual consent under section 13B of Hindu Marriage Act, 1955, and the scope and ambit of powers and jurisdiction vested in it under article 142 of the Indian constitution, to grant divorce on the grounds of irretrievable breakdown of marriage. The court emphasized that it has the authority to pass any order or decree beyond the statutory provisions, meaning it can depart from the procedural and substantive laws. The court relied on previous judgements, such as I.C. Golak Nath v. State of Punjab (1967), Union Carbide Corporation v. Union of India (1991), stating that this power cannot be limited by statutory laws unless they involve crucial public policy.
The court held that under Article 142, it has the discretion to waive the mandatory 6-month cooling off period for divorce by mutual consent where the marriage has been irretrievably broken down, and reconciliation is impossible.
The court recognized that putting blame for divorce on one party could be subjective and is a complex task. Denying divorce because one party opposes it would cause the parties to live in a miserable marriage in such cases.
Thus, in essence, this landmark judgment expanded the horizon of granting divorce in India by recognizing the concept of irretrievable breakdown as a legitimate ground for divorce under Article 142 Constitution of India. This judgement underscores the court’s commitment to serving justice, equity, and good conscience, especially in cases where statutory provisions may fall short in addressing the complexities of marital disputes. This case sets a precedent for the court’s proactive role in ensuring fair and just outcomes in divorce proceedings while recognizing the evolving societal dynamics surrounding marriage and family disputes.
-Noorain Iqbal
-Delhi Metropolitan Education