Citation: Shilpa Sailesh v. Varun Sreenivasan, 2023 SCC OnLine SC 544, decided on 01-05-2023.
This case involves petitions filed before the Supreme Court of India under Article 142 of the Constitution seeking to waive the stipulated six-month waiting period for divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955. A two-judge bench doubted the correctness of previous SC judgments in Anjana Kishore and Manish Goel which held that the mandatory waiting period cannot be waived under Article 142. Thus, a reference was made to a larger bench to examine the scope of SC’s powers under Article 142 to do “complete justice” in matrimonial cases. The Constitution Bench, in this landmark ruling, extensively analyzed the scope and limitations of Article 142 powers. It held that Article 142 enables SC to deviate from procedural laws and also substantive law provisions based on considerations of fundamental public policy. However, it cannot disregard substantive statutory mandates based on core legislative policy. Applying this test, SC can invoke Article 142 powers to grant divorce decrees by mutual consent without the six-month waiting period under Section 13B, if it furthers the interests of justice. It can also simultaneously dispose other connected proceedings between parties.
Further, SC clarified that it can grant divorce on ground of irretrievable marriage breakdown under Article 142 despite opposition by one spouse. This discretion must be exercised with caution satisfying that the marriage is unviable and forcing parties to remain married would prolong agony. Parameters like failed mediation attempts, long period of separation etc. must be considered. The decision settles the debate on scope and applicability of Article 142 in matrimonial cases. It balances procedural law compliance with doing complete justice given the unique status of marriage. By providing clarity, it prevents fragmentation of opinion and ensures consistency in invoking inherent Article 142 powers in future.
The Supreme Court has time and again emphasized the sanctity of marriage as a sacrosanct societal institution. However, the stark realities of modern life with increasing interpersonal conflicts have made irreconcilable breakdown of marriage a frequent occurrence. The Hindu Marriage Act, 1955 provides detailed grounds for dissolution of marriage by a decree of divorce under Section 13. It also introduced divorce by mutual consent under Section 13B which requires the parties to wait for a stipulated period of 6-18 months between the first and second motions. The mandatory waiting period under Section 13B is based on sound public policy reasoning to provide time for reflection and reconciliation as divorce has permanent consequences. However, in exceptional cases of irreparable marital breakdown with no chances of reunion, the waiting period prolongs mutual agony without any purpose. Thus, a delicate balance needs to be maintained between the sanctity of marriage and recognising when prolonging it is futile.
The Supreme Court has often been approached under Article 142 to do “complete justice” in such exceptional situations by waiving the waiting period for mutual consent divorce. However, varying Benches took conflicting views on whether mandatory statutory procedures under Hindu Marriage Act can be overridden using inherent Article 142 powers. This resulted in conflicting opinions on whether the cooling-off period under Section 13B can be relaxed under Article 142, especially if all mediation attempts have failed and parties have been living separately for long periods. Related issues like simultaneously disposing connected criminal and civil proceedings between parties based on divorce settlements were also considered inconsistently by different Benches.
To settle these issues and lay down authoritative guidance for future, a Constitution Bench reference was made in the case of Shilpa Shailash v. Varun Sreenivasan. This Constitution Bench verdict comprehensively examines the contours and limitations of Supreme Court’s powers under Article 142. It balances the inherent power to do complete justice in exceptional situations with the sanctity of institutional marriage under Hindu law. The doctrinal clarity provided by revisiting diverse judicial opinions settles key issues plaguing matrimonial litigation and is a significant step in evolving Indian family law jurisprudence.
Facts Of The Case
The present case arises out of Transfer Petition (Civil) No. 1118 of 2014 filed before the Supreme Court of India along with connected transfer petitions. The petitioner, Ms. Shilpa Shailesh, had filed a transfer petition seeking transfer of divorce proceedings going on between her and her husband, Mr. Varun Sreenivasan, from the Family Court in Kerala to the Family Court in Mumbai. Ms. Shilpa and Mr. Varun had gotten married in 2007 in Mumbai as per Hindu rites and customs. After marriage, they shifted to Thiruvananthapuram in Kerala where Mr. Varun was employed. Differences arose between them and Mr. Varun filed a divorce petition in 2010 before the Family Court in Thiruvananthapuram on grounds of cruelty. Ms. Shilpa contested the divorce petition.
During the pendency of proceedings, the parties explored the possibility of dissolution of marriage by mutual consent under Section 13B of the Hindu Marriage Act. However, certain connected proceedings remained pending before courts in Kerala. These included domestic violence proceedings initiated by Ms. Shilpa against Mr. Varun and his family members, proceedings under Section 125 CrPC filed by Ms. Shilpa claiming maintenance from Mr. Varun, and criminal complaints filed by Mr. Varun and his family members against Ms. Shilpa alleging offences under Section 498A IPC.
To avoid multiplicity of proceedings and to dissolve the marriage by mutual consent, the parties entered into a settlement agreement in 2014. As per the settlement, Mr. Varun agreed to pay Rs. 50 lakhs to Ms. Shilpa towards full and final settlement of all her claims. Based on this settlement, Ms. Shilpa filed the present transfer petition before the Supreme Court seeking transfer of proceedings and dissolution of marriage by mutual consent under Article 142 of the Constitution of India.
During the pendency of the transfer petition, a two judge bench of the Supreme Court exercised its extraordinary jurisdiction under Article 142 and passed a decree dissolving the marriage between Ms. Shilpa and Mr. Varun by mutual consent vide order dated 06.05.2015. However, the Court did not finally decide the important legal issues regarding the scope and ambit of power of the Supreme Court under Article 142 of the Constitution to dissolve marriages by mutual consent under Section 13B of the Hindu Marriage Act. Therefore, while disposing of the transfer petitions filed by Ms. Shilpa, the two judge bench formulated certain substantial questions of law on the scope and exercise of power under Article 142 of the Constitution. These questions were referred to a larger bench of the Supreme Court for consideration.
The present case thus raises important issues regarding the scope and contours of the plenary power vested with the Supreme Court under Article 142 to do “complete justice” and the interplay between this power and the statutory scheme for divorce under the Hindu Marriage Act. The case offers the Supreme Court an opportunity to authoritatively lay down principles on whether and in what circumstances it may invoke Article 142 to pass decrees of divorce by mutual consent without strict adherence to the procedures under Section 13B of the Act.
In sum, the facts of the case centre around the matrimonial dispute between Ms. Shilpa and Mr. Varun, the multiplicity of proceedings between them before different courts, their settlement agreement to mutually dissolve the marriage, and the reference to the larger Constitutional bench on the scope of power under Article 142 to grant such divorces. The present case thus has wide ramifications on the exercise of extraordinary Constitutional powers by the Supreme Court to iron out creases in matrimonial disputes.
The key questions framed for consideration were:
- The scope and ambit of powers under Article 142 to do “complete justice”.
- Whether under Article 142, the Court can grant mutual consent divorce decree without Section 13B waiting period based on settlement between parties and dispose other connected proceedings.
- Whether divorce can be granted under Article 142 on ground of irretrievable breakdown despite opposition by one party.
The appellant, Ms. Shilpa Shailesh, had filed the present transfer petition seeking transfer of the divorce proceedings from the Family Court in Kerala to the Family Court in Mumbai.
The main arguments advanced on behalf of the appellant were as follows:
- It was submitted by the counsel for the appellant that the Supreme Court has wide powers under Article 142 of the Constitution to do complete justice in any cause or matter pending before it. Relying on previous judgments, it was argued that the Court can pass any decree or order as may be necessary to meet the ends of justice.
- It was contended that the statutory period of 6 months for moving the second motion under Section 13B(2) of the Hindu Marriage Act is only directory and not mandatory in nature. The Court has discretion to waive or reduce this period in deserving cases where parties have been litigating for long and reconciliation is impossible.
- The appellant argued that the object of the 6 months period is to provide time for reflection and reconsideration before divorce. However, in cases where the marriage has irretrievably broken down with no chances of reconciliation, this period only prolongs mental agony and trauma for parties.
- It was submitted that the Supreme Court, in exercise of powers under Article 142, can grant divorce decree by mutual consent without waiting for the statutory period under Section 13B(2), as continuation of marital ties would be unjust and inequitable in such cases.
- The appellant relied on previous Supreme Court judgments like Amardeep Singh v. Harveen Kaur and Amit Kumar v. Suman Beniwal to contend that the statutory cooling off period can be waived in deserving cases to do complete justice.
- It was argued that in the present case, the marriage between the parties had completely broken down with no chances of revival. The statutory period of 6 months would only extend the mental trauma and hardship already suffered by the parties during long drawn litigation.
- The appellant submitted that the settlement arrived at mutually dissolving the marriage may kindly be recorded by invoking extraordinary powers under Article 142 to do complete justice, especially since proceedings were pending in Supreme Court.
The present case involves interpretation of the following key legal provisions:
- Article 142 of the Constitution of India
Article 142(1) states that the Supreme Court in exercise of its jurisdiction may pass such decree or order as is necessary to do complete justice in any cause or matter pending before it. Further, any decree or order passed under this provision shall be enforceable throughout India. This provision vests wide powers in the Supreme Court to pass any order to do complete justice in matters before it. The Court can even pass decrees and orders which may be at variance with statutory provisions, if required in the interests of complete justice.
- Section 13B of the Hindu Marriage Act, 1955
Section 13B provides for divorce by mutual consent between parties on the ground that they have been living separately for atleast one year, have not been able to live together and have mutually agreed to dissolve the marriage. Section 13B(2) states that on a joint motion by both parties after 6 months but before 18 months of the initial motion, if the petition is not withdrawn, the Court shall pass a decree of divorce if satisfied regarding the averments. This in effect requires a ‘cooling off’ period of 6 months for divorce by mutual consent.
- Doctrine of Irretrievable Breakdown of Marriage
The doctrine of irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act. However, it has been applied by the Supreme Court in various cases using its extraordinary powers under Article 142 to dissolve marriages where reconciliation was impossible. The Court has in cases like Naveen Kohli v. Neelu Kohli granted divorce on the ground of irretrievable breakdown of marriage by invoking Article 142 even if one party opposes divorce, in deserving cases where marriage is beyond repair.
- Doctrine of Harmonious Construction
As per this doctrine, different statutory provisions should be construed harmoniously without creating any conflict. The Supreme Court must make an effort to read apparently conflicting provisions in a harmonious manner, giving effect to all provisions instead of striking down any provision or rendering it useless. This doctrine will be relevant in interpreting whether Section 13B can be harmoniously construed with the Court’s powers under Article 142.
- Principle of directories and mandatories
Procedural statutes may be directory where substantial compliance suffices and breach does not result in invalidity. Mandatory statutes are those which must be strictly observed and non-compliance leads to invalidity. Classification of Section 13B(2) as directory or mandatory will have bearing on whether cooling off period can be waived under Article 142.
- Principle of Severability
As per this principle, if a part of statute is inconsistent with the Constitution, only that part may be severed while retaining the Constitutional remainder. This principle may be relevant if the cooling off period under Section 13B(2) is held unconstitutional when applied strictly. Instead of striking down Section 13B(2) entirely, the period of 6 months could be ‘severed’ and read down under Article 142.
- Doctrine of Stare Decisis
As per this doctrine, a principle of law laid down by a competent court is binding and should be followed in subsequent cases involving identical matters. The Supreme Court’s previous judgments on scope of Article 142 like Manish Goel and conflicting views on waiving cooling off period under Section 13B will be relevant.
The Supreme Court undertakes a comprehensive examination of the scope and contours of its extraordinary power under Article 142(1) of the Constitution to do complete justice in any cause or matter pending before it. Tracing the evolution of Article 142(1) jurisprudence, the Court refers to previous Constitution Bench decisions like I.C. Golak Nath v. State of Punjab (1967) which had characterized this power as wide and elastic to deliver equitable relief by moulding remedies beyond the limits of statutory provisions. Relying on Union Carbide Corporation v. Union of India (1991), the Court holds that prohibitions in ordinary laws cannot act as restrictions on the constitutional powers under Article 142, unless they embody some fundamental public policy. Thereby, the Court asserts supremacy of its special powers under Article 142 over statutory restraints.
Analyzing the mandatory waiting period of 6 months under Section 13B(2) of the Hindu Marriage Act, 1955 for a decree of divorce by mutual consent, the Court concludes that this does not fetter its discretion under Article 142. Relying on Amardeep Singh v. Harveen Kaur (2017), the Court holds that it can waive the waiting period by invoking its equitable jurisdiction under Article 142(1), if the marriage has irretrievably broken down without chances of reconciliation.
On the issue of exercise of Article 142 powers to grant divorce decree despite non-compliance with process under Section 13B, the Court expressly overrules the conflicting views in Anjana Kishore v. Puneet Kishore (2002) and Manish Goel v. Rohini Goel (2010). Thereby, the Court dispels doubts around use of its special powers under Article 142(1) to decree divorce between consenting parties without procedural compliance under statutory law.
Citing precedents like Naveen Kohli v. Neelu Kohli (2006), Ashok Hurra v. Rupa Bipin Zaveri (1997) and exercising its extraordinary jurisdiction under Article 142(1), the Court grants legitimacy to the doctrine of irretrievable breakdown of marriage as a ground for divorce, despite absence of any such provision under the Hindu Marriage Act. Thereby, the Court adapts the law to social reality and contemporary jurisprudential thinking by expanding the grounds of divorce to encompass de facto spousal separation.
Relying on foreign precedents like Owens v. Owens (2018) which recognize the shortcomings of fault-based divorce law, the Court holds that assigning blame for marriage breakdown is often difficult and inequitable. In such cases, forcing an estranged couple to stay wedded forever constitutes injustice. Thereby, the Court moves away from archaic notions of matrimony by laying down progressive jurisprudence for dissolving marriages with irretrievable breakdown.
In conclusion, the Court decisively expands the horizon and scope of its special powers under Article 142(1) to cut through procedural fetters and deliver complete restorative justice in deserving cases. While exercising such powers, the Court shall adopt a cautious case-by-case approach based on facts and equities involved. Thereby, the Court bridges the gap between law and life by moulding reliefs to meet the ends of justice.
In conclusion, the Supreme Court has taken a progressive stand in this landmark judgment by expanding the horizons of its special remedial powers under Article 142(1) of the Constitution. While reaffirming the sanctity of marriage as an institution, the Court has also recognized the need for pragmatic legal solutions when faced with dead and estranged marriages. The Court has prudently laid down guiding principles and safeguards for exercise of its extraordinary powers under Article 142(1) to decree divorce in deserving cases involving irretrievable breakdown of marriage. Thereby, the Court aims to prevent undue prolonging of traumatic matrimonial litigation which serves no purpose but to exacerbate the misery of estranged couples.
At the same time, the Court has rightfully cautioned that powers under Article 142 must be invoked judiciously on a cautious case-by-case basis, weighing all facts and circumstances. Thereby, the Court has struck a balanced approach preserving the sanctity of the institution of marriage, while also expanding divorce grounds to include de facto separation under its equitable powers. Overall, this progressive decision marks a notable departure from archaic notions of matrimony by acknowledging the ground realities of broken marriages. The Court has adapted itself to changing social mores and jurisprudential thinking around the world. Thereby, this landmark verdict aims to remedy injustice inflicted on trapped couples through procedural fetters, while upholding constitutional morality and values of justice, liberty and dignity.