Supreme Court Affirms Power to Grant Divorce by Mutual Consent Under Article 142, Even Dispensing with Statutory Waiting Period

Constitution Bench Rules Court Can Dissolve Marriage on Irretrievable Breakdown Despite Spouse’s Opposition; Sets Guidelines on Exercising Jurisdiction Under Article 142 of Constitution

In a landmark Constitution Bench judgment delivered on May 1, 2023, the Supreme Court of India has clarified and expanded its power under Article 142(1) of the Constitution to grant divorce by mutual consent, even waiving the statutory six-month waiting period prescribed under Section 13B(2) of the Hindu Marriage Act, 1955. The Court has also held that it can dissolve marriage on the ground of irretrievable breakdown despite the other spouse opposing such dissolution, thereby providing a new legal avenue for ending dead marriages that cannot be salvaged.

The judgment arose from a transfer petition involving parties Shilpa Sailesh and Varun Sreenivasan, but its scope is much wider, addressing important questions about the interplay between statutory provisions on divorce and the expansive constitutional powers of the Supreme Court. The Court emphasized that its power under Article 142(1) to do "complete justice" is plenary and can override procedural requirements or statutory provisions, subject to fundamental general or specific public policy considerations.

Key Highlights of the Judgment:

1. Article 142(1) Powers Explained:

 The Court underscored that Article 142(1) empowers it to pass any decree or make any order necessary to do "complete justice" in any cause or matter pending before it. This power is unique and has no exact parallel in many other constitutions. It is inspired by principles of equity, justice, and good conscience and is to be exercised with caution and restraint.

2. Waiver of Six-Month Cooling-Off Period:

 Section 13B(2) of the Hindu Marriage Act mandates a mandatory six-month waiting period between the first and second motion for divorce by mutual consent, intended as a cooling-off period to allow reconciliation. However, the Court held that this procedural requirement is not sacrosanct and can be waived by the Supreme Court in appropriate cases where the parties have genuinely settled their differences, and there is no possibility of reconciliation. The waiver should be exercised after carefully considering factors such as duration of marriage, separation period, efforts at mediation, and pending proceedings.

3. Divorce on Ground of Irretrievable Breakdown Despite Opposition:

 The Court decisively held that it can grant divorce on the ground of irretrievable breakdown of marriage even if one spouse opposes the dissolution. This power is discretionary and must be exercised only when the Court is satisfied that the marriage has completely failed and continuation of the marital relationship is unjustified. The Court must also ensure that the interests of the opposing spouse are fairly balanced, including considerations regarding alimony, custody, and welfare of children.

4. Scope to Quash Connected Proceedings:

 The Supreme Court can also, in exercise of Article 142(1), quash and set aside other connected proceedings, including criminal cases under Section 498A IPC and cases under the Protection of Women from Domestic Violence Act or Section 125 Cr.P.C., to ensure complete justice and avoid multiplicity of litigation.

5. No Direct Writ Petition for Divorce:

 The Court clarified that parties cannot directly seek divorce on the ground of irretrievable breakdown by filing writ petitions under Articles 32 or 226 of the Constitution. Divorce petitions must be filed under the appropriate statutory provisions in family courts or other competent forums, with the Supreme Court exercising its constitutional power only in transfer petitions or pending matters before it.

6. Guidelines for Exercising Article 142 Powers:

 The Court referred to earlier judgments such as Amardeep Singh v. Harveen Kaur and Amit Kumar v. Suman Beniwal to emphasize the factors courts should consider before granting waiver or exercising their power to grant divorce under Article 142. These include the length of separation, failure of mediation, existence of genuine settlement, and the balance of equities.

Background and Legal Context:

The Hindu Marriage Act, 1955, provides for divorce by mutual consent under Section 13B, which requires a mandatory six-month cooling-off period between the first and second motion. This period aims to prevent hasty decisions and encourage reconciliation. However, courts have often faced situations where marriages are irreparably broken, and prolonging litigation only causes hardship.

The Supreme Court has jurisdiction under Article 142(1) to do complete justice in any matter before it, including matrimonial disputes. Earlier decisions had left ambiguity on whether the Court could waive the statutory waiting period or grant divorce on irretrievable breakdown without consent of both spouses.

This judgment decisively settles these issues, recognizing that the constitutional power to do complete justice can override procedural rules where necessary but must be exercised with circumspection.

Implications:

The judgment provides relief to parties trapped in protracted matrimonial disputes and litigations, allowing the Supreme Court to provide a one-stop resolution by passing a decree of divorce by mutual consent, even waiving the six-month waiting period. It also empowers the Court to grant divorce on irretrievable breakdown, balancing the need to uphold marriage’s sanctity with the realities of broken relationships.

By permitting the quashing of related criminal and civil proceedings, the Court aims to reduce multiplicity of litigation and provide finality to parties.

This ruling reinforces the Supreme Court’s role as a problem solver and equity arbiter, capable of transcending procedural technicalities to deliver justice tailored to unique facts and circumstances.

The Court, however, cautions that such powers must be exercised sparingly and only when the facts clearly justify the relief, ensuring fairness to both parties and adherence to fundamental public policy.

Statutory provisions Article 142(1) of the Constitution of India, Section 13B of the Hindu Marriage Act, 1955, Section 125 of the Code of Criminal Procedure, 1973, Section 498A of the Indian Penal Code, 1860, Protection of Women from Domestic Violence Act, 2005

Shilpa Sailesh v. Varun Sreenivasan (SC)(Constitution Bench) : Law Finder Doc Id # 2211169