By Rhuthuja Koonumal
Court: The Supreme Court of India
Coram:
Hon'ble Justice Sanjay Kishan Kaul
Hon'ble Justice Sanjiv Khanna
Hon'ble Justice Abhay Oka
Hon'ble Justice Vikram Nath &
Hon'ble Justice J.K. Maheshwari
Date of Judgment: May 01, 2023
Citations: Transfer Petition (Civil) No. 1118 of 2014
Marriage is often considered as the foundation of social structure which is a complex mix of emotions, commitments, and legal intricacies. In the diverse cultural landscape of India, the institution of marriage is not only a celebration of love but also a web of legal obligations and rights. In a country which is known for its diversity, the legal framework governing marriages is equally diverse, with personal laws based on religion and community. However, not every marital journey is a lifelong odyssey, and as relationships face challenges, the legal process of divorce comes into play. In the recent case of Shilpa Sailesh v Varun Sreenivasan, a Constitution Bench comprising of Justices Sanjay Kaul, Sanjiv Khanna, Abhay Oka, Vikram Nath and J.K. Maheshwari held that under Article 142, the Supreme Court has the power to dissolve the marriage on the ground of Irretrievable Breakdown of Marriage. In addition, the court ruled that the six-month waiting period for divorce under the Hindu Marriage Act of 1955, known as the ‘cooling-off period’, is a challenge in cases of Irretrievable Breakdown of Marriage. As a result, if the marriage is irreparable, the cooling-off period can be waived.
An irretrievable breakdown of the marriage is a legal term used to describe a situation in which a marriage has broken down beyond repair. This means that the couple is no longer able to live together as husband and wife and that there is no hope of reconciliation.[1]
FACTS OF THE CASE:
Ms. Shilpa and Mr. Varun were married in 2007 in Mumbai according to Hindu rituals. After the wedding, they moved to Thiruvananthapuram in Kerala, where Mr. Varun was employed. Due to differences, Mr. Varun filed a divorce petition in 2010 in the Thiruvananthapuram Family Court, citing cruelty as grounds. Ms. Shilpa contested the 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.
Meanwhile, Ms. Shilpa filed a transfer petition, requesting the shift of divorce proceedings from the Kerala Family Court to the Mumbai Family Court. In 2014, to streamline the process and dissolve the marriage amicably, the parties reached a settlement. According to the settlement, Mr. Varun agreed to pay Rs. 50 lakhs to Ms. Shilpa to settle all claims. Based on this agreement, Ms. Shilpa filed a transfer petition before the Supreme Court under Article 142 of the Constitution, seeking the transfer of proceedings and mutual consent divorce.
During the transfer petition, a two-judge bench of the Supreme Court, invoking Article 142, granted a decree dissolving the marriage by mutual consent. However, the court did not conclusively address key legal issues related to the Supreme Court's authority under Article 142 to grant mutual consent divorce under Section 13B of the Hindu Marriage Act. Consequently, while disposing of Ms. Shilpa's transfer petitions, the bench referred specific legal questions on the scope and exercise of power under Article 142 to a larger Supreme Court bench for further consideration.
Thus, this case raises significant issues regarding the extent of the Supreme Court's plenary power under Article 142 for "complete justice" and its interaction with the statutory divorce framework outlined in the Hindu Marriage Act.
ISSUES RAISED:
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?
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.
Whether Supreme Court can grant divorce in exercise of power under Article 142(1) of the Constitution of India when there is a complete and irretrievable breakdown of marriage despite the other spouse opposing the prayer?
FINDINGS OF THE COURT:
In the present case, the Hon'ble Supreme Court held that under Article 142(1), the jurisdiction has the power to dissolve the marriage and grant a divorce directly on the grounds of an irretrievable breakdown of marriage despite the fact that it is not a recognized statutory provision of law. The court has made a point that the power to dissolve the marriage is only valid if it is irretrievably broken which means that the marriage has to be proven emotionally dead and there is no possibility of cohabitation or there is no reasonable chance of getting the married couple back together. Thus, while passing any order with regards to the dissolution of marriage and using the power, it should be exercised with proper caution and care.
Article 142(1) of the Constitution of India reads as
“The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.”
The court has also stated that it has the authority to waive the waiting period of 6 to 8 months prescribed for seeking divorce through mutual consent under Section 13B of the Hindu Marriage Act 1955.
Section 13B of the Hindu Marriage Act 1955 allows mutual consent divorce based on the condition that the parties have lived separately for a minimum of one year who have been unable to reconcile, and mutually agree to end the marriage. According to Section 13B (2), if both parties jointly move the court between 6 to 18 months after the initial motion, and the petition is not withdrawn, the court will grant a divorce decree upon being satisfied with the claims. Essentially, this necessitates a 'cooling off' period of 6 months for mutual consent divorce.
To waive off the cooling period, the court has provided some of the important questions which has to be taken in consideration. Those questions are:
How long parties have been married?
How long litigation is pending?
How long they have been staying apart?
Are there any other proceedings between the parties?
Have the parties attended mediation/conciliation?
Have the parties arrived at a genuine settlement that takes care of alimony, custody of the child, or any other pending issues between the parties?
While analysing this provision of Section 13B [2] of the Hindu Marriage Act, in Amardeep Singh vs Harveen Kaur2 discussed the question that whether the cooling-off period of six months is mandatory or discretionary. It was held that the cooling-off period can be waived by the court where the proceedings have remained pending before the court for a long, thus only in some exceptional situations.
It is stated that the separation period should be sufficient, and that anything above six years or more will be a relevant factor. The court also determined that the mandatory six-month waiting period for mutual consent divorce can be waived, if specific requirements are met. This implies that couples seeking mutual consent divorce can proceed without adhering to the mandatory waiting period, as long as they fulfill the specified conditions.
The justices stated that irretrievable marriage breakdown is not a matter of right, but rather a matter of discretion to be applied with great care and delicacy, taking into account many considerations to ensure that full justice is done to both the parties.
CONCLUSION:
This is an important judgment which would be a great relief for people suffering from matrimonial issues. The Apex Court has made it clear that the waiting period for mutual consent divorce can be waived invoking Article 142 of Constitution. The court has also made it clear that hat it is not permissible for a party to submit a written petition invoking Article 32 of the Indian Constitution directly to seek relief for the dissolution of marriage on the basis of irretrievable breakdown.
The author of this article is Rhuthuja Koonumal, a third-year LLB student at Agnel School of Law.
[1] Irretrievable Breakdown of Marriage (https://lawctopus.com/clatalogue/clat-pg/irretrievable-breakdown-of-marriage-as-a-ground-for-divorce/)
[2] (2017) 8 SCC 746
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