The Honorable Supreme Court of India delivered a significant judgment on 1st May, 2023 in the case of Shilpa Sailesh v. Varun Sreenivasan, wherein it was discussed whether ‘irretrievable breakdown of marriage’ can be a ground for the dissolution of the marriage, though it is not a statutorily recognized ground and also discussed whether the six months cooling off period can be waived off under the powers given under Article 142 of the Constitution of India?
The issue had previously been raised and discussed under various judgments and decided by two-judges bench of the Supreme Court, where the court had expressed the view that the six-month period could not be waived or reduced in exercise of its powers under Article 142 of the Constitution of India.
Timeline of the case:
In 2014, the case was moved before the Supreme Court under the provisions of divorce by mutual consent i.e. Section 13-B of the Hindu Marriage Act, citing irretrievable damage to the marriage.
In 2015, the Supreme Court granted the divorce as it was considered to be the dead marriage and it was also observed that there are many other similar cases pending before the family court with the same issue so, the Supreme Court by using inherent power under Article 142 taken over the issue to be decided by a Constitutional bench of the Supreme Court.
In June 2016, a two-judge bench of the Supreme Court appointed Senior Advocate Indira Jaisingh, Dushyant Dave, and Meenakshi Arora as amicus curiae and referred the matter to a Constitution Bench and again the matter got referred to the larger bench for better interpretation of the provisions involved
On September 20, 2022, the matter was heard by a Constitutional Bench led by Justice Sanjay Kishan Kaul.The other judges that made up the Constitution Bench were, Justice J.K. Maheshwari, Justice Sanjiv Khanna, Justice A.S. Oka, and Justice Vikram Nath.
Issues of the case:
The following are some of the issues framed in the said case:
1. What is the scope and extent of powers of the supreme court to decide the matter under Article 142 of the Constitution and whether the six-month cooling-off period, as stipulated in Section 13-B(2) of the Hindu Marriage Act, could be waived or reduced by the court or not.
2. Whether ‘Irretrievable breakdown of marriage’ can be a ground for dissolution of the marriage as this ground is not statutorily recognized by the Hindu Marriage Act and does Supreme Court have the capacity under Article 142 of the Constitution of India to deal with the matter.
3. The third issue that was being considered in the case was whether the Supreme Court can grant a divorce using its power under Article 142(1) of the Constitution of India, even if one of the spouses opposes the divorce, in cases where the marriage is completely and irretrievably broken down.
Interpretation of Article 142 of the Constitution of India
Article 142 of the Constitution of India basically states the powers of the Honorable Supreme Court to exercise its jurisdiction for doing complete justice in any pending cause or matter and pass any decree or order in the interest of the justice which shall be enforceable throughout the territory of India as prescribed by the Parliament until any provision is made regarding the same.
In this case the honorable supreme court of India by using the power under Article 142 gave the broad prospective, as various cases were referred by the Supreme Court for the interpretation of Article 142. The phrase ‘is necessary for doing complete justice’ was widely interpreted by the court, as the aim of the court is to deliver every judgment or order or decree in the interest of the justice, and follow the essence of the Constitution of India viz. to be fair, just, reasonable, and non-arbitrary.
According to Article 142 of the Constitution of India, the Supreme Court has inherent power to deal with the issue central to the present case, which has been reiterated in various cases. The Irretrievable breakdown of the marriage being non-statutory i.e. it is not a validly prescribed ground to get the divorce. To get through the divorce proceedings every couple has to go through the process and there is six months cooling-off period to either reconcile or amicably settle down. This gives the parties a chance to ponder whether there is any possibility left that the marriage can be saved.
Interpretation of section 13-B Hindu Marriage Act, 1955
Section 13-B of the Hindu Marriage Act, 1955 deals with the provision of divorce by mutual consent. It provides for a way for the parties to a marriage to seek a divorce by mutual agreement and without the need for a long drawn out court process.
The conditions are as follows:
1. Both parties to the marriage must have mutually agreed to the divorce.
2. They must have been living separately for a period of at least one year or more immediately preceding the presentation of the petition.
3. They must have been unable to live together as husband and wife during this period.
4. They must jointly file a petition for divorce before the family court with a joint statement that they have mutually agreed to dissolve the marriage.
5. After the filing of the petition, the court will examine the parties and verify their consent to the divorce.
6. The court will also try to reconcile the parties and provide an opportunity for them to reconsider their decision.
7. If the court is satisfied that the consent for divorce was not obtained by force, fraud or undue influence, and the parties have mutually agreed to dissolve the marriage, it may pass a decree of divorce.
The suggestion made by senior advocates who were appointed as amici curiae in the present case were diverse and reflected a range of opinions.
It was suggested that the Court should be allowed to dissolve marriages when they have irretrievably broken down using its powers under Article 142. Accordingly, the court has the power to invoke any provision which is in conflict with the complete justice, and in this case it is the cooling-off period prescribed under the act.
Further, a contrarian perspective was suggested that the court should not exercise its powers under article 142 if Parliament has not recognized it as a ground for divorce. It was mentioned that the judiciary should not overstep its bounds and should only act in accordance with the laws passed by the legislature.
Another perspective presented was that irretrievable breakdown of marriage can be seen as a type of cruelty, including mental cruelty. Therefore, the court can grant divorce on the grounds of cruelty even if there is no explicit ground for irretrievable breakdown of marriage.
Finally, it was suggested that when the Supreme Court activates its extraordinary jurisdiction under Article 142, it is not bound by statutory law and can embody justice, equity, and good conscience. This means that even if there is no explicit provision in the law for irretrievable breakdown of marriage, the Court can still grant divorce if it is necessary for the interests of justice.
The Hon’ble Supreme Court has deliberated all these suggestions and considered the matter from a range of perspectives on the issue of irretrievable breakdown of marriage. Ultimately, the Honorable Supreme Court made the decision which is in the best interests of justice.
The court has the discretionary power to dissolve a marriage on the ground of irretrievable breakdown under Article 142(1) of the Indian Constitution. However, this power must be exercised with great caution and care.
“Given the expansive amplitude of power under Article 142(1) of the Constitution of India, the exercise of power must be legitimate, and clamours for caution, mindful of the danger that arises from adopting an individualistic approach as to the exercise of the Constitutional power.”
The court must be convinced that the marriage is emotionally dead, unworkable, and beyond salvation. The court should consider various factors such as the period of separation, social and economic status of parties, welfare of minor children, provision for fair and adequate alimony, economic rights of children, etc. The court clarified that it does not want to codify these factors as they are situation-specific and that these are just illustrative. It is in the best interest of all to give legality to a dead marriage in the form of a formal divorce, provided:
Where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B (2), it can do so after considering the following:
(i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the first motion itself;
(ii) all efforts for mediation/conciliation including efforts in terms of Order 32-A Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts;
(iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties;
(iv) the waiting period will only prolong their agony. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the court concerned.
The bench also held that the mandatory waiting period of six months for divorce by mutual consent can be dispensed with subject to the requirements and conditions laid down hereinabove, which can be unique on a case-to-case basis. This means that couples who wish to obtain a divorce by mutual consent can do so without waiting for the mandatory waiting period, provided the above-mentioned conditions are satisfied.