IRRETRIEVABLE BREAKDOWN OF MARRIAGE CAN ALSO BE A GROUND FOR GRANTING DIVORCE

Case Title- SHILPA SAILESH v. VARUN SREENIVASAN

Court- Supreme Court of India

Bench: Justices S.K. Kaul, Vikram Nath, AS Oka, JK Maheshwari and Sanjiv Khanna

Judgement date- May 1, 2023

BRIEF INTRODUCTION

The Honourable Supreme Court of India delivered a landmark judgment in this case. It ruled that it has the jurisdiction to dissolve a marriage on the ground of irretrievable breakdown under the purview of Article 142 to do complete justice.

FACTS

1. Petitioners first approached the Apex court in 2014, where the partners sought divorce by mutual consent [1]on the grounds of irretrievable marriage breakdown, pursuing the court to use its power under Art. 142.

2. The SC granted the divorce as the marriage was deemed to be dead, and there were several other pending cases for the family court to look upon. The court used its inherent power under Art.142 to refer the case to the Apex court for adjudication.

3. In June 2016, a 2-judge bench of the Supreme Court assigned Senior Advocates Dushyant Dave, Indira Jaising, and Meenakshi Arora as amicus curiae to refer the case to a Constitution Bench.

4. On September 20, 2022, a Constitutional Bench headed by Justice Sanjay Kishan Kaul heard the case. Justice J.K. Maheshwari, Justice Sanjiv Khanna, Justice Vikram Nath and were also members of the Constitution Bench.

ISSUE RAISED

• What is the scope of the Supreme Court’s power to rule on the issue under Article 142, and can the court waive the cooling-off period of 6 months as provided in Sec.13-B (2) of the HMA?
• Whether “irretrievable breakdown of marriage,” which is not statutorily recognized by the Hindu Marriage Act, 1955 can be a ground for divorce, and whether the Supreme Court has the authority to hear the case under Article 142 of the Indian Constitution.
• Whether the Supreme Court can grant a divorce under Art.142(1) in cases of irretrievable marriage breakdown, even with the objection by one partner?

CONTENTIONS

The Court requested the assistance of Senior Attorneys V. Giri, Dushyant Dave, Indira Jaising, and Meenakshi Arora in the order of reference and appointed them as amicus curiae in the present case, which had diverse and reflected the range of opinion.

• It was suggested that the Court should allow the dissolving of marriages when they have irretrievably broken down using its power under Article 142. As a result, the court has the right to invoke any provision that is in conflict with delivering complete justice, in this case, the act’s cooling-off period.
• According to one opposing viewpoint, the court should not use its authority under Article 142 if Parliament hasn’t recognized IBM as a ground for divorce. It was stated that the judiciary should only act in accordance with the laws passed by the legislature and should not cross any lines.^[2]
• Another argument made was that cruelty, including mental cruelty, can take many forms, including the irretrievable breakdown of a marriage. As a result, the court may grant a divorce on the grounds of cruelty even if there is no explicit reason for the irretrievable breakdown of the marriage.
• It was contended that the court should avoid emphasizing the “fault theory,” in which one spouse is held more accountable for the dissolution of the marriage, in IBM cases. Instead, divorce should be granted in IBM cases regardless of who is at fault. If reconciliation between the parties is successful, only then should a divorce be denied.
• It was also suggested that the Supreme Court could embody justice, equity, and good conscience when exercising its extraordinary jurisdiction under Article 142 because it was not constrained by statutory law. This means that the Court may still grant divorce if it is required in the interests of justice, even if the law does not expressly provide for irretrievable marriage breakdown.
• All these suggestions have been discussed by the Supreme Court, which has also looked at the problem of irreversible marriage breakdown from several angles. The Honourable Supreme Court ultimately reached a just conclusion.

RATIONALE

The judgment led down by the constitutional bench has ruled that the mandatory six-month cooling-off period for divorce via mutual consent can be waived off with subject to the requirements and conditions laid down in Amardeep Singh v. Harveen Kaur^[3], (2017) and Amit Kumar v. Suman Beniwal, 2021^[4]. Further, it was held that the Court could dissolve the marriage on the ground of irretrievable breakdown of marriage.

• The power & jurisdiction of the court under Article 142.

It is concluded that the court has the authority to deviate from both procedural and substantive laws in order to uphold fundamental general and specific public policy. However, the court should take into account existing laws and act as a mediator by weighing competing claims.

• Exercise of SC power under Article 142(1) in the divorce settlement.

In light of the settlement, the court concludes that it has the authority to grant a divorce decree by mutual consent without following the procedures outlined in Section 13-B of the Hindu Marriage Act. The court may also dismiss or vacate related legal proceedings brought under laws such as the Domestic Violence Act, Section 125 of the Criminal Procedure Code, or criminal prosecutions brought under Section 498-A of the Indian Penal Code (IPC). This authority should be used with caution, considering any relevant factors mentioned in earlier rulings.

• The court can grant the divorce when there is an irretrievable marriage breakdown even if one of the partner objects.

Based on an irretrievable breakdown, the court can dissolve a marriage by Art. 142, ensuring complete justice if the marriage has broken irreparably and parties cannot live together. The opposing party’s circumstances and history should also be considered by the court.

DEFECTS OF LAW

• Article 142 is a powerful tool that empowers the courts to ensure justice is served. But it is crucial to understand that these powers don’t allow the courts to ignore the substantive rights of the parties involved in the case under consideration. This power cannot replace the existing law dealing with the issues involved in adjudication. Thus, despite its comprehensiveness, this inherent power cannot create something unique and contrary to the existing laws.
• One taking advantage of his/ her own wrong is inapplicable when the divorce is granted under IBM.
• The principle of the ‘parens patriae’ where the court acts as a parent and makes decisions for the welfare of the party. This can be justified in exercising its jurisdiction in can of a child who is incapable of making a decision for himself but not for the mature women or men. ^[5]

INFERENCE

In this case, the parties approach the Supreme Court to grant the divorce by their mutual consent under section 13B of the HMA, 1955 by using its jurisdiction and the power under Article 142 of the Indian Constitution. But the Court noted that it had numerous other petitions pending before it had a similar claim. So, the two-judge bench of the SC appointed the amicus Curia for guiding the court to take a decision in this matter and put forward their opinions in Favor as well as against in regard to granting the divorce on the ground of Irretrievable breakdown of marriage and also for waive the 6-month waiting period by exercising its power under Article 142. By taking into consideration all the arguments put forward and taken into account the facts and circumstances of the case, the SC held that divorce can be granted on grounds of IBM even in the absence of consent of one of the spouses and the court can also waive the waiting period of 6 months.

The Shilpa Sailesh decision was praised by the majority of people because it acknowledged the pointlessness of maintaining a marriage on paper when it has effectively ended. However, the potential repercussions for women of the decision to grant such a divorce despite the presence of only unilateral consent, however, was largely ignored. Clear errors in judgment are frequently criticized. However, seemingly “good” decisions are never carefully examined and analysed, necessitating a review and revision.

Mansi Pipal

National Law University, Jodhpur

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[1] Hindu Marriage Act, 1955, § 13B

[2] T. Narendran, SC’s power to Grant Divorce: Sr. Adv. Dushyant Dave Argued that SC cannot hear cases specifically allotted to other courts, SCO OBSERVER (last visited at 24 June, 2023) https://www.scobserver.in/reports/divorce-under-article-142-day-2-sr-adv-dushyant-dave-argues-that-supreme-court-cannot-hear-cases-specifically-allotted-to-other-courts/.

[3] Amardeep Singh v. Harveen Kaur 8 SCC 746.

[4] Amit Kumar v. Suman Beniwal, SCC OnLine SC 1270.

[5] Aditi Bhojnagarwala, A Critique of the Supreme Court’s “Irretrievable Breakdown of Marriage” Judgment, Indian Constitutional Law and Philosophy.