Shilpa sailesh vs Varun Sreenivasan

Citation: MANU/SC/0502/2023

Decided on : 1st May 2023

Parties: Shilpa Sailesh Vs. Varun Sreenivasan

Coram: Justices S.K. Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath, and J.K. Maheshwari,


In this case the husband filed for a divorce from his wife Mrs Shilpa on the grounds of cruelty in 2010 before a family court in Thiruvananthapuram. Even though the parties gave chance to the possibility of dissolution of marriage by mutual consent under section 13B of Hindu Marriage Act but  there were connected matters pending in courts.

The two parties later in 2014 entered into a settlement and mutually decided to dissolve the marriage. 

Based on the aforementioned agreement, Shilpa, the wife, filed a transfer petition with the Supreme Court, requesting the transfer of proceedings and mutual consent dissolution of the marriage under Article 142 of the Indian Constitution. In 2015, the Supreme Court granted a divorce under Article 142 of the Constitution, citing an irretrievable breakdown of the marriage as the reason for the marriage’s death.
The supreme court also observed that thousands of such cases have been filed in various family courts across the country and are pending which laid to the Honble Supreme court to specify its power Article 142 of the Constitution and also gave certain guidelines. 


The key questions framed for consideration were:

  1. The scope and ambit of powers under Article 142 to do “complete justice”.
  2. If the parties reach a settlement, the court may, in accordance with Article 142, grant a mutual consent divorce decree without imposing the section 13b waiting period and handle any related proceedings. 
  3. If one party objects, can a divorce be granted under Article 142 on the grounds of irretrievable breakdown? 


Regarding the first issue,  the court while explaining the scope of Article 142 of the Indian Constitution, said that care must be taken to weigh the risk that is involved in adopting a individualistic approach  since it is an extensive authority. The court  , referred to M. Siddiq (Dead) Through Legal Representatives (Ram Janmabhumi Temple Case) v. Mahant Suresh Das and Others. which gave a wide interpretation to the phrase ‘is necessary for doing complete justice’ and includes cases where positive laws are silent in any case or the equitable power under Article 142  is needed to do the complete justice where any procedural law or any positive law is unable to dispense justice. The power under Article 142 is to be used to make decision which serves the “best interest of justice”. 

IC. Golak Nath and Others v. State of Punjab and Another 18 , K. Subba Rao, CJ., the power of the court under the Indian constitution is the most important in doing complete justice and integral to decision in cause and matter  

The bench also referred to Union Carbide Corporation v. Union of India and Ors explaining how under Article 142 supreme court has the power to do complete justice  unless barred by any statutory provision the court can do complete justice. 

The Supreme Court further cited Supreme Court Bar Association v. Union of India, in which it was decided that an order under Article 142 of the Indian Constitution challenging a statutory provision could only be issued if the court was certain that doing so would fully uphold the law. 

Supreme Court while answering the second question  discussed that the objective behind section 13 (b) of Hindu Marriage Act is to give time for  introspection before filing the second motion, the decision to separate . However, the court also recognises when the procedural requirement comes as an impediment in the settlement which may cause  misery and pain to both parties. 

The court also referred to Amardeep Singh v. Harveen Kaur, and said that certain questions must be considered before cooling off the 6-month period as the power is discretionary, the questions are:

(i)the time period for which they were married?

(ii)the time period for which litigation was pending?

(iii)the time frame for staying apart ?

(iv)any other proceeding between the parties?

(v)any mediation and conciliation between the parties ?

(vi)any settlement that parties have arrived at including alimony ,custody of child or any other pending issues between the parties?,

In granting a waiver of the statutory waiting period, the court shall take into account the following considerations:

(i) Whether the statutory periods of six months (Section 13-B2) and one year (Section 13-B1) of separation have elapsed before the filing of the first motion;

(ii) Whether all attempts at reconciliation, pursuant to Order 32-A Rule 3 CPC, Section 23(2) of the Act, and Section 9 of the Family Courts Act, have been unsuccessful, with no prospect of further success;

(iii) Whether any outstanding disputes, such as alimony or child custody, have been resolved;

(iv) Whether prolonging the waiting period would exacerbate the suffering of the parties.

The court’s decision to waive the waiting period for the second motion hinges upon satisfying these requirements.

In reference to Amit Kumar v. Suman Beniwal, the court must ascertain whether the parties have entered into the settlement of their own volition, free from coercion or pressure, after considering the six conditions outlined in the aforementioned case.

Addressing the third question, the Honorable Court referred to Ashok Hurra v. Rupa Bipin Zaveri, where it was opined that delaying an inevitable outcome only serves to prolong the suffering of the parties. Consequently, the court granted a decree of divorce, notwithstanding the husband’s remarriage and child during the pendency of the proceedings.

Similarly, in Naveen Kohli v. Neelu Kohli, the court emphasized the necessity of granting divorce, accompanied by a permanent maintenance payment, due to the irretrievable breakdown of the marriage.

In Munish Kakkar v. Nidhi Kakkar, divorce was granted despite the absence of mutual consent, as there was evident unwillingness on the part of the wife to continue the marriage, leading to its irretrievable breakdown.

Likewise, in Sivasankaran v. Santhimeenal, the court, invoking its authority under Article 142(1) of the Indian Constitution, dissolved the marriage on the grounds of irretrievable breakdown, following unsuccessful attempts at mediation and reconciliation.

In light of these precedents, the court reaffirmed its authority under Article 142(1) to dissolve marriages due to irretrievable breakdown, as necessary to ensure complete justice.