Section 13-B of Hindu Marriage Act provides for divorce by mutual consent and
requires parties to wait for 6 months before moving the second motion in the
Court. Whether or not, under Article 142 of the Indian Constitution, the Supreme
Court can waive off this 6-month statutory period, was a question of contention
since 2014, when Shilpa Sailesh and Varun Sreenivasan moved to the Hon'ble
Supreme Court for obtaining divorce by mutual consent, seeking waiver on ground
of irrevocable breakdown of marriage.
The parties asked for deciding upon the case for delivering 'complete justice'
as envisaged under Article 142 of the Constitution. On the 1st of May 2023, the
Constitutional Bench of the Supreme Court consisting of Justices S.K. Kaul,
Sanjiv Khanna, Abhay S. Oka, Vikram Nath, and J.K. Maheshwari, passed its
guidelines as were referred to them in the Shipla Sailesh v. Varun
This case raised three issues to be decided by the court, as would be elaborated
in this blog post. The decision of the Court would now be used as a guiding
stick in further cases brought before the Supreme Court under Article 13B of the
Hindu Marriage Act, 1955.
Facts Of The Case
In 2014, the parties, Mrs. Shilpa and Mr. Varun, moved to the Hon'ble Supreme
Court in order to obtain divorce by mutual consent under Section 13-B of Hindu
Marriage Act, 1955, citing that their marriage has broken down irretrievably. In
2015, the Supreme Court granted the divorce by using powers under Article 142 of
the constitution on the ground of irretrievable breakdown of marriage as the
marriage was a dead marriage.
While disposing of this case, the Supreme Court observed that thousands of such
cases have been pending before various Family Courts and High Courts. Hence, a
need was felt to lay down certain guidelines and also to specify scope of
Supreme Court's power under Article 142 of the Constitution.
The case was sent to a two-judge bench of the Supreme Court and amicus curae
were appointed to decide upon the issue. The case was again referred to a larger
bench of the Supreme Court for better consideration. On 20th September, 2022,
bench headed by Justice Sanjay Kishan Kaul heard the matter and on 1st May 2023,
the bench finally passed its landmark judgment laying down the scope of Supreme
Court's power under Article 142 and other related points of contention were
clarified by the Constitutional Bench.
The following three issues were raised and brought before the hon'ble Supreme
Court for adjudication:
- What is the scope and ambit of power and jurisdiction of the Hon'ble
Supreme Court under Article 142(1) of the Constitution of India?
- While exercising its inherent power under this Article, can the Supreme
Court waive off 6 months statutory period prescribed under Section 13-B of
the Hindu Marriage Act, 1955? Also, whether or not can it quash other
related proceedings under CrPC, IPC, Domestic Violence Act, etc, and if yes,
in what circumstances can the Supreme Court do so?
- When one of the parties to the divorce stands in opposition to the
divorce petition, can the Supreme Court grant divorce on the ground of
irrevocable breakdown of marriage while exercising its power under Article
The issues have been discussed in respective order in the subsequent headings
The Scope And Ambit Of Supreme Court's Power Under Article 142
The first issue raised before the Hon'ble Supreme Court was regarding the scope
of Article 142(1) and the jurisdiction of the Supreme Court under it. While
deliberating upon it, the Supreme Court first referred to the case of M Siddiqui
v. Mahant Suresh Das . The Court gave wide scope to the phrase 'as is necessary
for doing complete justice', to include such power of equity to answer the
problems where the strict application of the procedural law would not yield a
'just outcome', and also in such cases where the positive law is silent or has
left some void.
Further, the power is wide enough to pass an order in modification or alteration
of a proposition regarding which the positive law is specific and clear,
provided that order is in the interest of justice. Hence, 'to do complete
justice' is the guiding principle of Article 142(1).
Further, the Hon'ble Court referred to the Union Carbide Corporation v. Union of
India , to distinguish the power of the Supreme Court under Article 142, with
that Civil Courts and High Courts as under Section 151 of CPC and Section 482 of
CrPC respectively, providing these Courts with power to make and pass such
orders as may be necessary to meet the 'ends of justice' and to prevent abuse of
procedure of court.
Such power is exercisable in such areas where CPC and CrPC are sub silentio,
hence, the Court can devise such procedure as necessary to regulate future
proceedings. But, the power conferred under Article 142(1) on High Court is not
a replication of this power, as the court is not bound by the rules of procedure
and can interfere in such areas where provisions have already been laid down, if
satisfied that departure from the said provisions would be necessary to do
'complete justice', but this power is fettered by restraint of consideration of
'general and specific public policy'.
The Court additionally referred to Supreme Court Bar Association v. Union of
, where it was held that order, as opposed to the statutory provisions,
can be passed only to 'balance the equities' between the claims of parties
concerned by 'ironing out the creases in cause of matter' brought before the
court, hence, conferring unfettered jurisdiction in 'cause of matter', which
covers almost every kind of proceeding including civil, criminal, final or
interlocutory proceedings. The only fetter is that the judgment should not
violate 'specific and general provisions of public policy'.
Hence, the powers under Article 142(1) are wide enough for the Court to act per
its discretion to meet the 'ends of justice', the power being much wider than
Civil Courts and the High Courts under relevant sections of CPC and CrPC.
Supreme Court's Power Regarding Waiver Of Statutory Provision And Quashing Of Related Proceedings
The issue raised before the Hon'ble Supreme Court was whether while exercising
power under Article 142(1), can the Court set aside the prescribed period of 6
months under Section 13 B of the Hindu Marriage Act, 1955, and can the Court
alongside quash other proceedings in connection to the divorce and settlement.
The Court also had to decide that in which circumstances the Court can exercise
Concerning the 6 months cooling period under 13 B of Hindu Marriage Act, 1955,
which has been provided to prevent 'impulsive and heedless dissolution of
marriage, allows tempers to cool down, anger to dissipate, and gives the spouses
time to forgive and forget', the Court reiterated with approval, the guidelines
laid in Amardeep Singh v. Harveen Kaur case
, holding that the said
cooling period was discretionary and could be waived off as was not mandatory in
But such waiver has to be granted if there is no chance of reconciliation, the
parties have been living separately for long enough, all efforts to salvage the
dead marriage have failed, and after considering the following circumstances and
- If the required period of 1 year under sub-clause (1) and six months before presenting the second motion under sub-clause (2) of Section 13B has already been completed before the first motion is presented.
- If the efforts under CPC concerning mediation or conciliation or under Family Courts Act for parties to reunite have proved to be futile and further no chances are there of success in the same direction.
- If the parties have already settled issues like alimony, custody of children, etc.
- If the waiting periods, if not waived, would prolong the agony.
Hence, if the above conditions have been analysed and the Court deems fit, as
per its discretion, the waiver can be granted, and an application regarding the
same can be presented before the Hon'ble Court a week after the first motion has
been presented. Hence, in such cases where the marriage has proved to be
'completely unworkable, emotionally dead, beyond repair, and irreversibly broken
down' , there is no use in stretching it for 6 more months.
Next, considering whether the Court can quash other proceedings related to the
one pending before the Supreme Court, the Court held that power under Article
136 and Article 142(1) provides that a decree passed by the Court is executable
throughout the territory of India, and it is obvious that before approaching the
Supreme Court, the parties must have filed suits and attended proceeding in
various Civil Courts, High Courts, Family Courts, trial courts and judicial
forums seeking appropriate relief, there must have been closure and disposal of
multiple cases, which makes the pleas cumbersome by adding to the list of legal
formalities. Considering the 'cause of justice', the multiplicity of litigations
blocks the way of settlement, after which the parties could start their life
afresh either separately or together.
Hence, to preserve the cause of justice, the Supreme Court has been endowed with
a duty to ensure that the matrimonial disputes are settled timely and amicably
without undue delays which add to the suffering and prolong the agony of the
parties, for such reasons the Supreme Court is empowered to quash the other
proceedings concerned with the divorce proceedings, which are pending in other
courts and judicial forums.
Supreme Court's Power To Grant Divorce With Consent Of Just One Spouse
The third issue raised the Hon'ble Supreme Court was whether while exercising
power under Article 142(1), can the court grant divorce, when there is a
complete breakdown of marriage, inspite of the other spouse opposing the prayer.
The court isn't fettered by the provisions of Section 13-B of HMA to grant a
decree of divorce by mutual consent on a joint application, on fulfilment of the
conditions of the Section, and if the court is convinced that the decree of
divorce should be granted.
The Court referred to Ashok Hurra v. Rupa Bipin Zaveri case, where it was held
that if no useful purpose, both emotional and practical, would be served in
postponing the agony of the parties or their marriage, then the same should be
put to a halt. The court, therefore, exercised the power under Article 142(1) to
grant a decree of divorce.
The judges opined that too much reliance on fault as a ground of divorce
encourages matrimonial offenses, and aggravates the ongoing rift between the
parties. After strenuous efforts for reconciliation being made, if the court
finds the separation inevitable, divorce should be granted. The court should
take decision conducive to the interests of both parties.
The basic essence of Section 13(1) (i-a) of the Hindu Marriage Act is that no
spouse should be subjected to mental cruelty, which can make their life a
misery. These rules of procedure must give way to 'complete justice in a cause
of matter'. The Fault Theory can be relaxed to a certain degree by the court to
do complete justice while exercising power under Article 142(1), as expounded in
the aforementioned judgments.
Now referring to the Munish Kakkar v. Nidhi Kakkar case
, where the parties had
been engaged in multifarious litigations, including divorce proceedings, for
almost two decades, yet opposed divorce by mutual consent. On recognizing the
futility of the broken-down marriage, the court exercised power under Article
142(1) to do 'complete justice' to the parties and granted divorce even when no
such divorce was asked for.
The court held that grant of divorce on the ground of 'irretrievable breakdown
of marriage' is a discretionary power of the court which has to be used
sparingly with care and caution, and can't be claimed as a 'matter of right'.
While granting divorce on this ground, the court should be fully satisfied that
marriage is unworkable and beyond reconciliation.
The parties should not be permitted to file a writ petition under Article 32, or
for that matter under Article 226 before the High Court, and seek divorce on the
ground of irretrievable breakdown of marriage. The reason for the same is that
the parties shouldn't be allowed to circumvent the procedure of approaching the
superior tribunal/forum for redressal, by resorting to writ jurisdiction.
Secondly, relief under Article 32 is sought for the enforcement of fundamental
rights. Also, the judicial orders passed by the courts aren't amenable to
correction under Article 32. Therefore, a party cannot file a writ petition
under Article 32 of the Constitution of India and seek relief of dissolution of
marriage directly from this Court.
Hence, the Hon'ble Supreme Court under Article 142(1) is empowered to dissolve
the marriage on the ground of Irretrievable Breakdown, and to do 'complete
justice' it can do so even when the other spouse does not consent to the same.
Case Comment: Value Proposition Of The Judgement
Firstly, before the arrival of the judgement of Shilpa Sailesh V. Varun
Sreenivasan, the scope and ambit of power of the Hon'ble SC under Article 142(1)
wasn't very clear. Although, the same issue had been talked about in various
earlier judgements still there were many lacunas in the same. In Shilpa Sailesh
V. Varun Sreenivasan
, the Hon'ble SC considered various other judgements such as
that of M. Siddiq (Dead) Through Legal Representatives (Ram Janmabhumi Temple
Case) v. Mahant Suresh Das, I.C. Golak Nath v. State of Punjab, Union Carbide
Corporation v. Union of India,
etc. and held that this court can depart from
the procedure as well as substantive laws, as long as the decision laid down is
in consonance with the general and specific public policy. While deciding
whether to exercise discretion, the court must consider the substantive
provisions enacted rather than ignoring them altogether. This power is to be
exercised in a 'cause or matter'.
Secondly, before the coming of this judgement, the position in law wasn't clear
that whether a party can directly approach the honourable Supreme Court on the
ground of irretrievable breakdown of marriage by filing a writ petition under
Article 32 of the Constitution. The SC reiterated it's view laid down in the
case of Poonam v. Sumit Tanwar, that such an attempt of approaching the apex
court directly should be spurned.
The Hon'ble SC said that the remedy of a
person aggrieved by the decision of a competent judicial forum is to approach
the superior tribunal/forum for redressal of his/her grievance. The parties
shouldn't be permitted to circumvent the procedure by resorting to writ
jurisdiction under Article 32 or Article 226. More importantly, the Hon'ble SC
said that the relief under Article 32 of the Constitution of India can be sought
to enforce the rights conferred by Part III of the Constitution of India, and on
the proof of infringement thereof. Judicial orders passed by the court in, or in
relation to, the proceedings pending before it, are not amenable to correction
under Article 32 of the Constitution of India.
Therefore, a party cannot file a
writ petition under Article 32 of the Constitution of India and seek relief of
dissolution of marriage directly from this Court. Due to this decision, the Apex
Court would be saved from multifarious litigations which eventually leads to
wastage of it's valuable time.
Thirdly, the Hon'ble SC held that, in view of settlement between the parties, it
has the 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. This power should be exercised with care and caution, keeping in
mind the factors stated in Amardeep Singh (supra) and Amit Kumar (supra).
multiplicity of litigations can restrict and block solutions, as a settlement
has to be holistic and comprehensive, given that the objective and purpose is to
enable the parties to cohabit and live together, or if they decide to part ways,
to have a new beginning and settle down to live peacefully. Therefore, the Apex
Court can also, in exercise of power under Article 142(1) of the Constitution of
India, quash and set aside other proceedings and orders, including criminal
Lastly, as far as the question that whether this Court can grant divorce in
exercise of power under Article 142(1) when there is complete and irretrievable
breakdown of marriage in spite of the other spouses opposing the prayer is
concerned, the SC answered in affirmative. This power is discretionary in nature
which is exercised to do 'complete justice' to the parties wherein this Court is
satisfied that the facts established show that the marriage has completely
failed and there is no possibility that the parties will cohabit together, and
continuation of the formal legal relationship is unjustified. This provision has
enabled the Apex Court to put end to the suffering of the parties without giving
due consideration to further futile attempts for reconciliation.
Case Comment 2.0: Potentially Problematic Points Of The Pronouncement
The Supreme Court has been conferred an honourable standing over the other
courts of justice and is a beacon for how justice is administered. The ruling of
the Supreme Court is acknowledged by all lower courts as well as by the citizen
of the country, and the informed citizens nonetheless critically examine the
rulings to identify such provisions that could cause repercussions in the
One of the possible issues in Shipla Sailesh v. Varun Sreenivasan
was that the
court's interpretation of the 'cause of matter' included a multitude of
instances to be included within its purview. This would possibly result in
plenty of cases being interpreted as 'causes of matter' requiring complete
justice, encouraging people to file more and more appeals and thus, overly
burdening the Supreme Court.
The second point of consideration is the power to quash other proceedings. The
Supreme Court may quash other proceedings relating to settlement, child custody,
and alimony that may require separate consideration through a variety of
proceedings, considering the number of technicalities involved in such matters.
The Supreme Court while quashing such decisions, may not be able to decide upon
these cases with intricacy as the separate proceedings by various courts
Moreover, the Fault Theory of Divorce, which has been holding relevance in
matrimonial cases from the very beginning, and provisions of Section 13B of HMA,
1955 have been side-lined by the Supreme Court. They have been referred to as
mere formalities that have been introduced by the legislature with certain
motives behind them and ignoring them all together merely in the name of
'complete justice' would lead to disrespect of the statutory provisions.
The Supreme Court through this pronouncement has crystallized and organized the
cases dealing with divorce by mutual consent under Hindu Marriage Act that are
brought before the Supreme Court and has also specified the extent to which it
can exercise its power under Article 142(1) of the Indian Constitution.
Hence, the decision of the Court can be summarised as follows:
Regarding the scope and ambit of power of the Supreme Court under Article 142(1)
of the Constitution, the Supreme Court has unlimited jurisdiction as to do
complete justice in coat of matter brought before it, the only fetter being that
such exercise should not be opposed to the provisions of 'general and specific
Then comes the question of waiver of 6-months statutory periods under Section
13-B of HMA, 1955, and the Court said that it can waive off the period if the
marriage is completely dead and has broken down irrevocably and, regarding the
question of quashing other proceedings pending before various courts, for which
the Court said that it has power to quash such other proceeding in the interest
of justice and to put to and end the suffering of the parties.
Similar decisions was passed regarding the question whether or not can the
Supreme Court grant divorce if the other party opposes the divorce petition as
the Court said that if the marriage has been broken down irrevocably, the Court
can grant divorce even after such opposition as through exercise of its power
under Article 142(1) of the Indian Constitution.