Supreme Court Clarifies Powers Under Article 142 in Divorce Cases: Shilpa Sailesh vs. Varun Sreenivasan (2023)

Date of the Judgment: 1 May 2023

Citation: (2023) INSC 427

Judges: Sanjay Kishan Kaul, J., Sanjiv Khanna, J., Abhay S. Oka, J., Vikram Nath, J., and J.K. Maheshwari, J.

Can the Supreme Court use its special powers to grant a divorce when a marriage has irretrievably broken down, even if one spouse doesn’t agree? This question was at the heart of a recent case before the Supreme Court of India, which examined the extent of its powers under Article 142 of the Constitution. This judgment clarifies when the Court can waive the mandatory waiting period for mutual consent divorce and grant divorce in cases of irretrievable breakdown of marriage. The five-judge bench, led by Justice Sanjay Kishan Kaul, delivered a landmark judgment clarifying the scope of Article 142 of the Constitution in the context of matrimonial disputes.

Case Background

The case began with a transfer petition (T.P. (C) No. 1118 of 2014) filed by Shilpa Sailesh against Varun Sreenivasan. A two-judge bench, while hearing the transfer petition, noted conflicting views on the applicability of Article 142 of the Constitution in divorce cases. This led to the formulation of questions of law to be decided by a larger bench. The core issue was whether the Supreme Court could use its powers under Article 142 to bypass the mandatory six-month waiting period for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955, and also whether it could grant divorce in cases of irretrievable breakdown of marriage even when one party opposes it.

The Attorney General for India suggested additional questions of law, including the consideration of whether divorce can be granted on the ground of “irretrievable break-down of marriage” even if it is not explicitly mentioned in the Hindu Marriage Act. The case was referred to a Constitution Bench to settle these issues.

Timeline

Course of Proceedings

The matter was initially referred to a three-judge bench, but it was later referred to a Constitution Bench due to the importance of the constitutional issues involved. The Supreme Court had previously passed orders dissolving marriages by mutual consent under Article 142, but the legal basis of such orders was questioned, leading to the present reference. The Attorney General’s submissions also played a crucial role in shaping the issues before the Constitution Bench.

Legal Framework

The judgment primarily revolves around Article 142(1) of the Constitution of India, which empowers the Supreme Court to pass orders necessary for doing complete justice in any matter pending before it. The Court also examined Section 13-B of the Hindu Marriage Act, 1955, which deals with divorce by mutual consent. Section 13-B(2) stipulates a mandatory waiting period of six months between the first and second motions for divorce.

Article 142(1) of the Constitution of India states:

“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.”

Section 13-B of the Hindu Marriage Act, 1955 states:

“13-B. Divorce by mutual consent .—(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.”

The Court also considered Section 13(1)(i-a) of the Hindu Marriage Act, which allows for divorce on the ground of cruelty, and Section 23(1)(a), which states that the petitioner should not be taking advantage of his or her own wrong or disability for the purpose of such relief.

Arguments

The arguments presented before the court can be summarized as follows:

Submissions on behalf of the Petitioners:

• Article 142 Powers: The petitioners argued that the Supreme Court has wide powers under Article 142 of the Constitution to do complete justice. This power should allow the Court to waive the six-month waiting period in cases of mutual consent divorce and grant divorce in cases of irretrievable breakdown of marriage.
• Practical Considerations: They emphasized that in many cases, the mandatory waiting period is a mere formality that prolongs the agony of the parties, especially when the marriage has irretrievably broken down. They argued that the court should prioritize the practical realities of broken marriages.
• Settlement: The petitioners submitted that the Court should recognize settlements between parties and use its power to give effect to such settlements, including the dissolution of marriage.

Submissions on behalf of the Respondents:

• Statutory Compliance: The respondents argued that the Supreme Court should not bypass the statutory provisions of the Hindu Marriage Act, particularly the mandatory waiting period under Section 13-B. They emphasized that the legislature has prescribed this period for a reason, to allow the parties to reconsider their decision.
• Fault Theory: Some respondents argued that divorce should be based on the fault of one party, not merely on the breakdown of the marriage. They contended that the Court should not grant divorce if the petitioner is at fault.
• Limitations on Article 142: The respondents argued that the powers under Article 142 are not unlimited and should not be used to override explicit statutory provisions.

Submissions of the Attorney General for India:

• Additional Questions: The Attorney General suggested additional questions of law, including whether divorce can be granted on the ground of “irretrievable break-down of marriage” even if it is not explicitly mentioned in the Hindu Marriage Act.
• Constitutional Bench Consideration: The Attorney General submitted that the questions formulated in T.P. (C) No. 1118 of 2014 required consideration by the Constitution Bench.

Issues Framed by the Supreme Court

The Supreme Court framed the following substantial questions of law:

1. What is the scope and ambit of the power and jurisdiction of the Supreme Court under Article 142(1) of the Constitution of India?
2. Can the Supreme Court, while hearing a transfer petition or in any other proceedings, exercise power under Article 142(1) to grant a decree of divorce by mutual consent, dispensing with the period and procedure prescribed under Section 13-B of the Hindu Marriage Act, and also quash other connected proceedings? If so, in which cases and under what circumstances?
3. Can the Supreme Court grant divorce in exercise of power under Article 142(1) when there is a complete and irretrievable breakdown of marriage, despite one spouse opposing the prayer?

Treatment of the Issue by the Court

The following table demonstrates how the Court decided the issues:

Authorities

The Court considered several cases and legal provisions in its judgment:

Cases:

Legal Provisions:

• Article 142(1) of the Constitution of India: Empowers the Supreme Court to pass orders necessary for doing complete justice.
• Section 13-B of the Hindu Marriage Act, 1955: Deals with divorce by mutual consent, including the mandatory waiting period.
• Section 13(1)(i-a) of the Hindu Marriage Act, 1955: Provides for divorce on the ground of cruelty.
• Section 23(1)(a) of the Hindu Marriage Act, 1955: States that the petitioner should not be taking advantage of his or her own wrong.
• Section 89 of the Code of Civil Procedure, 1908: Encourages mutual settlement in civil cases.
• Section 9 of the Family Courts Act, 1984: Encourages settlement in family disputes.

Judgment

The Supreme Court made the following observations and decisions:

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

The Court relied on several authorities to reach its conclusions. Some of the key authorities and how they were viewed are as follows:

• Union Carbide Corporation [CITATION]: The Court reiterated that the power under Article 142 is at a different level and of a different quality, and prohibitions or limitations in ordinary laws cannot act as prohibitions on the constitutional powers under Article 142.
• Supreme Court Bar Association [CITATION]: The Court emphasized that while Article 142 powers are wide, they cannot be used to supplant substantive law or ignore express statutory provisions.
• Amardeep Singh [CITATION]: The Court relied on this case to outline the factors to be considered while waiving the waiting period under Section 13-B of the Hindu Marriage Act.
• N.G. Dastane [CITATION]: The Court referred to this case to understand the meaning of ‘cruelty’ in matrimonial disputes.
• V. Bhagat [CITATION]: The Court used this case to expand the definition of ‘cruelty’ and to show how the fault theory can be diluted.
• Ashok Hurra [CITATION]: The Court relied on this case to show that the Court can exercise Article 142 powers to grant divorce in a dead marriage.
• Naveen Kohli [CITATION]: The Court referred to this case to highlight the changing concept of cruelty and the futility of continuing a dead marriage.
• Munish Kakkar [CITATION] and Sivasankaran [CITATION]: The Court relied on these cases to show how Article 142 can be used to grant divorce even when one party opposes it.
• The Court read down the decisions in Manish Goel [CITATION], Neelam Kumar [CITATION], Darshan Gupta [CITATION], Hitesh Bhatnagar [CITATION] and Savitri Pandey [CITATION] to the extent that they limited the power of the Supreme Court under Article 142 to do complete justice.

What weighed in the mind of the Court?

The Court’s decision was influenced by several factors:

• The need to do complete justice in matrimonial disputes.
• The practical realities of broken marriages and the futility of prolonging litigation.
• The changing concept of cruelty and the limitations of the fault theory.
• The importance of recognizing settlements between parties.
• The need to protect the interests of both parties, including financial security for the wife and welfare of children.
• The need to avoid multiplicity of litigation and to bring an end to the agony of the parties.

Logical Reasoning

Ratio Decidendi

The ratio decidendi of the judgment can be summarized as follows:

• The Supreme Court has wide powers under Article 142 of the Constitution to do complete justice in any matter pending before it, including matrimonial disputes.
• This power allows the Court to depart from procedural and substantive laws to address unique circumstances, based on public policy.
• The Court can waive the mandatory six-month waiting period for mutual consent divorce under Section 13-B of the Hindu Marriage Act, 1955, when the marriage has irretrievably broken down and the parties have settled all disputes.
• The Court can grant divorce on the ground of irretrievable breakdown of marriage, even when one party opposes it, if the marriage is beyond repair and continuing it would be futile.
• The Court’s power under Article 142 is not unlimited and must be exercised judiciously, keeping in mind the interests of both parties and the welfare of children.
• The Court’s power is to be used as a problem solver by balancing equities.

Obiter Dicta

The obiter dicta of the judgment include:

• The Court noted that the concept of ‘cruelty’ in matrimonial disputes has evolved and that the fault theory is not always relevant in cases of irretrievable breakdown of marriage.
• The Court emphasized the importance of recognizing settlements between parties and using its power to give effect to such settlements.
• The Court highlighted the need to protect the financial interests of the wife and the welfare of children in matrimonial disputes.
• The Court observed that the mandatory waiting period under Section 13-B is often a mere formality that prolongs the agony of the parties, and that the Court should prioritize the practical realities of broken marriages.
• The Court noted that the power under Article 142 is a unique power, and that it should be used to do complete justice and to avoid multiplicity of litigation.
• The Court observed that it is important to consider the circumstances of the parties and to balance the equities while exercising the power under Article 142.

Conclusion

The Supreme Court’s judgment in Shilpa Sailesh vs. Varun Sreenivasan is a landmark decision that clarifies the scope and extent of the Court’s powers under Article 142 of the Constitution in matrimonial disputes. The Court has affirmed its power to waive the mandatory waiting period for mutual consent divorce and to grant divorce in cases of irretrievable breakdown of marriage, even when one party opposes it. This decision is a significant step towards addressing the practical realities of broken marriages and ensuring that justice is done in such cases. The judgment provides a flexible approach to resolving matrimonial disputes, allowing the Court to consider the unique circumstances of each case and to do complete justice.

The judgment emphasizes the importance of settlements between parties and the need to protect the interests of both parties, particularly the financial security of the wife and the welfare of children. It also highlights the need to avoid multiplicity of litigation and to bring an end to the agony of the parties. The Court’s decision is a welcome relief for many couples who find themselves in dead marriages and are unable to obtain a divorce due to the rigid provisions of the Hindu Marriage Act.

In conclusion, the Supreme Court’s judgment in Shilpa Sailesh vs. Varun Sreenivasan marks a significant shift in the approach to matrimonial disputes, emphasizing the need for flexibility and pragmatism in the application of law. It reiterates the power of the Supreme Court to do complete justice and to address the practical realities of broken marriages, while also ensuring that the interests of all parties are protected.