Shilpa Sailesh v. Varun Sreenivasan- 2023

Author: Subhadra S Nair, NALSAR University of Law, Hyderabad

Shilpa Sailesh v. Varun Sreenivasan (2023): The case represents a landmark judgement of the Supreme Court of India in which it ventured to test the limit of its discretionary powers upon the paper of Article 142 of the Constitution, more so in the domain of matrimonial cases. The case then continues to address to what extent the Court can exercise its authority to grant divorces in circumstances of irretrievable breakdown of marriage even if one party does not consent or statutory procedures have not been fully complied with. Specifically, it deals with whether the Supreme Court can dispense with the six-month waiting period as mandated by Section 13-B(2) of the Hindu Marriage Act, 1955. The latter is a waiting period that gives married couples time to reconsider their decision to divorce by mutual consent.

This judgment is specifically notable for its background of detailed analysis of Article 142, which grants the Supreme Court the power to pass orders it deems necessary for "complete justice" in any matter brought before it. The bench posed fundamental questions: "What could be the broad parameters for the exercise of powers under Article 142 of the Constitution to dissolve a marriage between the consenting parties without referring the parties to the Family Court to wait for the mandatory period prescribed under Section 13-B of the Hindu Marriage Act?" This case, of course, will set a precedent so that the alleged irretrievable breakdown of marriage can be judged as a valid ground to tangle someone into divorce. However, the statutory law does not provide this ground explicitly. In the name of exerting its constitutional authority, the Court strives to balance procedure with the more pragmatic necessity of relieving people from marriages that have effectively ended.

Shilpa Sailesh underlines the changing role of the Supreme Court in family law, where the Court increasingly sympathises with individual circumstances, considering welfare and mental well-being above the rules of procedure when dealing with parties.

The Shilpa Sailesh v. Varun Sreenivasan case arose from a series of transfer petitions filed by Shilpa Sailesh and Varun Sreenivasan. Initially, these petitions related to the transfer of ongoing matrimonial proceedings between the two parties. However, the case ultimately centred on broader issues concerning the Supreme Court’s power under Article 142 of the Indian Constitution to dissolve marriages, mainly when one party resists the divorce or procedural hurdles, like mandatory waiting periods, are present.

They were married but later proved unworkable, resulting in the ensuing litigation. The parties initiated divorce proceedings. Varun pleaded that his marriage had irretrievably broken down, whereas Shilpa opposed it. Indian law mandates a six-month "cooling-off" period under Section 13-B(2) of the Hindu Marriage Act, 1955, before a court can pass a decree for a mutual consent divorce. This interim gives couples a chance to change their minds about separation. In the case of Shilpa and Varun, there was a long-drawn-up litigation, and one of them would say that any more delay would prolong their hardship.

The Supreme Court decided to examine whether it could waive the statutory waiting period in the interest of "complete justice" under Article 142 or even grant a divorce when one spouse is unwilling. The case sparked arguments on the importance of personal autonomy and the need to modernise family law. The Attorney General and other counsel suggested that requiring the consent of both parties, especially in cases of irrevocable marital discord, could sometimes prolong suffering unnecessarily.

Critical issues raised by the petition are as follows:

1. The scope of Article 142 to bypass procedural requirements under the Hindu Marriage Act.

2. Whether the Court can grant a divorce on the grounds of “irretrievable breakdown of marriage,” a concept not yet formally recognised in Indian divorce law. It also raises the question of whether the Court can quash and dispose of related proceedings under the Protection of Women from Domestic Violence Act, Section 125 of the Criminal Procedure Code, or criminal cases, especially those under Section 498-A of the Penal Code. If the answer is affirmative, an additional question is under what circumstances the Court should use its extraordinary powers under Article 142(1) of the Constitution.

3. Whether this Court can grant a divorce in exercising power under Article 142 (1) of the Constitution of India when there is a complete and irretrievable marriage breakdown despite the other spouse opposing the prayer.

   
   

In Shilpa Sailesh v. Varun Sreenivasan (2023), the Supreme Court of India provided key clarifications on the scope of Article 142, particularly in matrimonial disputes. The court addressed significant questions on bypassing procedural norms, the concept of irretrievable breakdown, and the possibility of granting unilateral divorce despite one spouse’s opposition.

The court held that Article 142 would enable it to grant reliefs that may bypass the procedural requirements set out in the Hindu Marriage Act, this six-month waiting period being one stipulated under Section 13-B(2) for a mutual consent divorce. Underlining the peculiar constitutional mandate of Article 142, whereby it is entitled to render "complete justice" in individual cases, the Court observed that when a marriage has conclusively broken, further prolongation of the procedural waiting period would be demonstrably counterproductive and even harmful to the parties. The Court observed that bypassing procedural norms should be seen as a mechanism to address extraordinary situations, particularly where reconciliation could prove impossible. Extending the waiting period would only lead to further hardship.

The Court further held regarding the irretrievable breakdown of marriage that although this is not recognised within Indian divorce law, Article 142 enables the Court to use this concept in some instances to effectuate "complete justice." The Court has emphasised that irretrievable breakdowns should be considered an established factual reality when couples are in a long period of separation with no likelihood of reconciliation. The Court further held that it could quash or dismiss ancillary proceedings like those under the Protection of Women from Domestic Violence Act, Section 125 of the Criminal Procedure Code, or criminal charges under Section 498-A of the Penal Code, if these are based on the marital discord and both the parties, agree for such a settlement. This discretionary power allows the Court to avoid further continuing parallel proceedings, which may serve no useful purpose in circumstances where a comprehensive settlement can be reached.

Lastly, the Court deliberated on whether it could grant a divorce even if one spouse opposed it under Article 142(1). The Court reiterates that it may, upon its initiative, dissolve a marriage even if one spouse is opposed to it, upon proof of complete and irretrievable breakdown, if it is so convinced that the marriage cannot be saved anymore and that its continuation will only unjustly prolong the suffering of both. In arriving at this decision, the Court emphasised that, in describing the cases of irretrievable breakdown, great sensitivity will be needed to grant relief only where the marriage is beyond repair. Decisions under the new cause are always made with much caution and fairness to prevent abuse.

In Shilpa Sailesh, the Supreme Court judgement highlighted how Article 142 is discretionary and case-specific, moving beyond the usual facets of judicial intervention to settle individual hardships when strict adherence to the statutes would defeat justice. It is one of the important steps toward the recognition of irretrievable breakdown as one of the valid grounds on which divorce may be granted within the Indian judicial framework by invoking its extraordinary powers under Article 142 to change with the tide of social needs and individual circumstances.

In analysing this judgement, we shall first focus on how the court interpreted the scope of Article 142 of the Constitution. Here, the question was whether it could exclude procedural requirements of the Hindu Marriage Act, in this case, the six-month waiting period provided under Section 13-B(2) for divorces based on mutual consent. Traditionally, this cooling-off period is provided to allow the spouses some time to ponder and perhaps reconcile before allowing the divorce ultimately. In cases where marital discord appears irreparable, strict observance of the waiting period could be a considerable hardship.

The Court stressed that Article 142 is to be administered on an individualised basis, with a view to the cause of justice itself, so that it could not only make an exception but also alter the statutory requirements in extraordinary situations. It read this power as incidental to the adaptation of procedural statutes to the peculiar facts of each case so that justice may still be served even when procedural norms are relaxed. The court thus drew attention to the fact that Article 142 granted the Court an extraordinary discretion to consider the psychological and practical consequences protracted separation would entail for the parties in such a case, where further delay would be grossly prejudicial.

To this, the Court observed that the "irretrievable breakdown of marriage" is not explicitly recognised by the Hindu Marriage Act. However, it was held that Article 142 empowers it to introduce the said principle of law where reconciliation proved impossible. After all, the insistence on statutory procedure was seen to be futile: This interpretation of Article 142 shows a willingness to subordinate substantive justice not to be compressed into procedural rigidity so that the Court can dissolve marriages even when carrying them forward might exacerbate distress.

This judgment clarified the extent of such use to be cautious use, exercised only in compelling cases so that indiscriminate waiver of statutory requirements is not laid down as a precedent. The Supreme Court emphasised that “complete justice” under Article 142 empowers it to address unique case circumstances where statutory procedures fall short. The Court highlighted that "complete justice" involves applying the law and adapting it compassionately to prevent undue hardship. This interpretation allows the Court to prioritise the welfare of individuals in prolonged, irreparable marital conflicts, underscoring its constitutional mandate to provide equitable and tailored relief beyond rigid procedural confines.

Reference:  2023 SCC OnLine SC 544