SHILPA SAILESH v. VARUN SREENIVASAN (2023)

SHILPA SAILESH v. VARUN SREENIVASAN (2023)

Court: Supreme Court of India 

Bench: J.K. Maheshwari, Vikram Nath, Abhay S. Oka, Sanjay Kishan Kaul 

Date of judgment: 01.05.2023 

Parties: 

Petitioner: Shilpa Sailesh 

Respondent: Varun Sreenivasan 

INTRODUCTION 

In the context of family law, this case is a critical milestone that represents a paradigm shift in the perspective of judiciary on marital conflicts and dissolution of marriage. The judgment thoroughly examines various provisions invoked including Section 13-B of the Hindu Marriage Act and Article 142(1) of the Constitution of India. The court ruled that under Article 142 of India Constitution which grants it power to do complete justice, it can dissolve a marriage on the ground of irretrievable breakdown without referring the parties to family court where they mandatorily wait for six to eighteen months for a decree of divorce by mutual consent under Section 13B of Hindu Marriage Act.  

FACTS 

In the case at hand, the married couple had been embroiled in a protracted legal battle to dissolve their marriage due to a long-standing marital disagreement. The pair had been living apart for over six years and their repeated attempts at reconciliation proved unsuccessful. It came to light that both parties had pursued a number of legal options, including criminal prosecutions under Section 498-A of Indian Penal Code and domestic violence actions. The couple had initially filed lawsuits under the Domestic Violence Act and Section 125 of Criminal Procedure Code, each of which represented an attempt to pursue justice through a separate legal channel. Reconciliation attempts at the lower court were inadequate and failed to deal with underlying marital issues that went unaddressed, including financial disagreements, miscommunication, accusations of wrongdoing, and irreconcilable differences. These on-going issues pressed the parties to take the matter to the higher court. In 2014 the parties moved to the Supreme Court to obtain divorce by mutual consent under Section 13-B of the Hindu Marriage Act stating that the marriage has irretrievably broken down. Conflicting testimony in later proceedings complicated the case which made it challenging for the lower court to reach a conclusive decision thus necessitating the Supreme Court to intervene to reach a final judgment.  

ISSUES 

1. What is the scope and extent of power of this court under Article 142 of the Constitution of India insofar as deviating from the procedural and substantive laws? 
2. Whether the court can dissolve a marriage by mutual consent by dispensing with the procedural requirements in Section 13-B of the Hindu Marriage Act? 
3. Whether the court can dissolve a marriage under Article 142(1) of the Constitution in cases of irretrievable breakdown, even if one spouse opposes? 

JUDGMENT 

1. 1) The Court noted with regard to Article 142 of Constitution that this Article is seemingly unique as it lacks an equivalent in most of the major written constitutions of the world. Additionally, it grants wide and capacious power to the Supreme Court to do ‘complete justice’ in any cause or matter’ which is significant. It gives legal authority to Supreme Court to give precedence to equity over law. This power, like all powers under the Constitution, must be controlled and regulated, as it has been established that relief based on equity should not disregard the substantive mandate of law based on underlying fundamental general and specific issues of public policy such as secularism, federalism, fundamental rights and other basic features of the Constitution. “Supreme Court is not a forum of restricted jurisdiction when it decides and settles the dispute in a ‘cause or matter’. While this Court cannot supplant the substantive law by building a new edifice where none existed earlier, or by ignoring express substantive statutory law provisions, it is a problem-solver in the nebulous areas. As long as ‘complete justice’ required by the ‘cause or matter’ is achieved without violating fundamental principles of general or specific public policy, the exercise of the power and discretion under Article 142(1) is valid and as per the Constitution of India.” 

Court mentioned that this is the rationale for the undefined and uncatalogued nature of the power under Article 142(1) of the Constitution which ensures elasticity to mould relief to suit a given situation. The Court reiterated that “This Court can depart from the procedure as well as the substantive laws and exercise its discretion under Article 142 for dissolving the marriage between the parties by balancing out the equities between the conflicting claims of the parties.” 

The Court thus answered in the affirmative holding that in view of settlement between the parties, the court has discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion. However, this power should be exercised with care and caution, keeping in mind the factors stated in Amardeep Singh v. Harveen Kaur (2017 SC) and Amit Kumar v. Suman Beniwal (2021 SC). Also, the Court can in exercise of power under Article 142(1) of Constitution of India, quash and set aside other proceedings and orders, including criminal proceedings. 

2. 2) Section 13B (2) of Hindu Marriage Act states that after the first motion is passed, the parties would have to move to the court with the second motion, if the petition is not withdrawn in the meanwhile, after six months and not later than eighteen months of the first motion. No action can be taken by the parties before the lapse of six months since the first motion. The legislative intent of Section 13B (2) of Hindu Marriage Act is to require that, prior to the second motion being filed, the parties have time to reflect and deliberate on the decision to separate. Nonetheless, there are instances of exceptional hardship in which the parties, desiring a new beginning, jointly plead to the court for the dissolution of marriage and request that the necessity of filing the second motion be waived after several years of contentious litigation and prolonged suffering. Due to irreconcilable differences, accusations and aspersions made against each other and the family members, and in certain cases several litigations including criminal cases, continuation of the marital relationship is impossible. The divorce is inevitable and the six months cooling off period only adds to the grief and suffering. In these circumstances, the procedural obligation to move the court with a second motion after a six-month interval operates as a barrier. Payment of alimony and permanent lump-sum maintenance are at times delayed while stress and suspicion remain. Here, the procedure should give way to a larger public and personal interest of the parties in ending the litigation(s), and the pain and sorrow effected, by passing a formal decree of divorce, as de-facto the marriage had ended much earlier. 

Court stated that the purpose of cooling off period is not to prolong the already disintegrated marriage or the agony and misery of the parties when there is no possibility of the marriage succeeding. Thus, once every attempt has been made to salvage the marriage and there remains no chance of reunion and cohabitation, the Court is not powerless in enabling the parties to avail a better option, which is to grant divorce. The waiver is not granted on mere asking, but on the Court being satisfied beyond doubt that the marriage has shattered beyond repair. 

Section 13B HMA does not impose any fetters on the powers of Supreme Court to grant a decree of divorce by mutual consent on a joint application, when the substantive requirements of the provision are fulfilled, and the Court is convinced and of the opinion that the decree of divorce should be granted. Thus, adopting a hyper-technical outlook can be counterproductive, as mere pendency causes agony, anguish and harassment and consequently, it is the duty of the Court to ensure that matrimonial matters are amicably resolved in order to end the suffering.  

3. 3) The Court pointed out the provisions 13(1)(i-a) and 23(1)(a) of Hindu Marriage Act and defined the term “cruelty” by citing its numerous judgments and concluded that “grant of divorce on the ground of irretrievable breakdown of marriage by Supreme Court is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors such as period of separation, period of cohabitation after marriage, the nature of allegation made by the parties, how many times the courts have intervened, etc. ensuring that ‘complete justice’ is done to both parties. Court must be completely satisfied and convinced that the marriage is totally unworkable, emotionally dead and beyond salvation and thus dissolution of marriage is the only way forward and that the marriage had irretrievably broken down was to be factually determined and firmly established.”  

The court clarified that these facts must be assessed in light of the social and economic standing of the parties, as well as their educational qualifications, whether the parties have any children, their age, educational qualification, and whether the other spouse and children are dependent, in which event how and in what manner the party seeking divorce intends to take care and provide for the spouse or children. 

A divorce can be granted even when one of the spouses opposes it. The bench said “However, in our opinion, one should not be oblivious to the fact that the institution of marriage occupies an important place and plays an important role in the society. So many other relationships stem from and thrive on the matrimonial relationships in the society. Therefore, it would not be desirable to accept the formula of irretrievable breakdown of marriage as a straight-jacket formula for the grant of relief.” 

Court opines that extraordinary care and caution must be exercised, and unless it is demonstrated that exceptional and special circumstances exist to establish that substantial and grave injustice has been rendered, Supreme Court should not review or interfere with the decision appealed against. The Court would not pass an order in contravention or ignorance of a statutory provision, or merely on sympathetic grounds. Thus, it was observed that the power to do ‘complete justice’ is not fettered by the doctrine of fault and blame, applicable to petitions for divorce under Section 13(1)(i-a) of Hindu Marriage Act. 

CONCLUSION 

This significant ruling provides much needed respite to those dealing with matrimonial conflict. The decision of this case was necessitated by the body of divergent and contradictory case laws on irretrievable breakdown as a ground for divorce. The constitutional bench extensively examined the scope of Supreme Court’s powers under Article 142 of Indian Constitution to do complete justice in matrimonial cases. It further ruled that the six months cooling off period for divorce by mutual consent can be waived under Hindu Marriage Act and that marriage can be dissolved on the ground of irretrievable breakdown even if one spouse was not willing.