Shilpa Sailesh v. Varun Sreenivasan
"Under Article 142(1) the Supreme Court may dissolve a marriage that has irretrievably broken down, even if one spouse objects, and may waive the waiting period for mutual-consent divorce and quash related proceedings, but only as a matter of discretion exercised with care on settled factors, not as of right or on a writ petition under Article 32."
Issues Before the Court
- (i)
What is the scope of the Supreme Court's power under Article 142(1) of the Constitution to do complete justice in matrimonial matters?
- (ii)
Whether, in exercise of that power, the Court can grant divorce by mutual consent without the waiting period and procedure under Section 13-B of the Hindu Marriage Act, 1955, and quash other proceedings between the parties?
- (iii)
Whether the Court can dissolve a marriage on the ground of irretrievable breakdown when one spouse opposes it?
Law & Rules Applicable
- (i)
Constitution of India, Article 142(1) (power to pass any decree or order necessary for doing complete justice in any cause or matter pending before the Supreme Court).
- (ii)
Hindu Marriage Act, 1955, Section 13-B (divorce by mutual consent, on a second motion made not earlier than six months after the presentation of the petition).
- (iii)
Code of Criminal Procedure, 1973, Section 482 and the decisions on quashing proceedings on the basis of a settlement.
Application to Facts & Circumstances
The questions arose in a transfer petition between spouses who settled their disputes while it was pending. A two-judge Bench referred questions on the reach of Article 142 in matrimonial matters to a larger Bench, and they came before a Constitution Bench, which also framed the question of dissolving a marriage on irretrievable breakdown without the consent of both parties.
Writing for the Constitution Bench, Sanjiv Khanna J. held that Article 142(1) may be used to grant divorce by mutual consent while dispensing with the six-month waiting period in Section 13-B, after weighing factors such as the period of separation, the litigation between the parties and the efforts at mediation. In doing so, the Court may also quash related civil and criminal proceedings between the parties.
Irretrievable breakdown is not a statutory ground of divorce, but the Court held that it may, under Article 142(1), dissolve a marriage that it is fully satisfied has broken down irretrievably, being totally unworkable, emotionally dead and beyond salvation, even if one spouse opposes. The relevant factors include the period of cohabitation and when the parties last lived together, the nature of the allegations and the litigation between them, the length of separation (six years or more being significant), and their economic and social status; the Court must also ensure adequate provision for the dependent spouse and children.
The power is discretionary and to be exercised with great care and caution; it cannot be claimed as of right. A party cannot file a writ petition under Article 32 seeking dissolution of marriage on the ground of irretrievable breakdown.
Conclusion & Ruling
- (i)
The Supreme Court may, under Article 142(1), grant divorce by mutual consent dispensing with the waiting period under Section 13-B, and may quash related proceedings between the parties.
- (ii)
It may dissolve a marriage on the ground of irretrievable breakdown, even against the wishes of one spouse, when fully satisfied on the relevant factors; the relief is discretionary, not a matter of right.
- (iii)
A writ petition under Article 32 seeking such relief is not maintainable; the power is exercised in matters otherwise before the Court, such as transfer petitions and appeals.