Judicial Discretion and Article 142: Dissolving Marriages on Grounds of Irretrievable Breakdown
On May 1, 2023, the Hon’ble Supreme Court of India ruled in Shilpa Shailesh v. Varun Srineevasan that it can grant divorce on the grounds of “irretrievable breakdown of marriage” under Article 142 of the Indian Constitution, even though it is not recognized as a statutory ground. The Court emphasized that Article 142 allows it to achieve “complete justice” in exceptional cases, going beyond the procedural and substantive law. The Hon’ble Bench also stated that the six month waiting period for divorce under the Hindu Marriage Act, 1955, can be waived if the marriage is beyond repair. This ruling acknowledges the need to consider irretrievable breakdown in certain cases to unfold justice.
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 unresolved state of proceedings, the parties probed 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 hisfamily 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 resolve 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 definite legal questions on the scope and exercise of power under Article 142 to a larger Supreme Court Bench for further consideration. Henceforth, this case raises considerable issues in respect to 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 OF THE CASE
1. What is the scope and extent of the 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 Sec 13(B) of the Hindu Marriage Act could be waived off or reduced by the court?
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. 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?
SCOPE OF ARTICLE
142(1) OF THE CONSTITUTION OF INDIA Article 142(1) of the Indian Constitution 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”1 This is a unique provision enshrined in the Constitution of India which is galvanized and arose from the old- age concepts of equity, justice and good conscience. Article 142(1) of the Indian Constitution is exceptionally critical because it gives an awfully wide and capacious control to the Court to do “complete justice” in any “cause or matter” since the judgement delivered by this Court ends the case between the parties. Article 142(1) has been interpreted by the Hon’ble Court in many landmark judgements. In Ram Janmabhoomi Temple Case2 , while interpreting the Article 142(1), the Court stated and summarized the contours of power as: “The phrase ‘is necessary for doing complete justice’ is of wide amplitude and encompasses a power of equity which is employed when the strict application of the law is inadequate to produce a just outcome. And power under Article 142 empowers a court to pass an order which accords with justice”. Further, the word ‘cause or matter’ in Article 142(1) of the Constitution of India, 1 INDIA CONST. Art 142(1) 2 M. Siddiq (Dead) Through Legal Representatives (Ram Janmabhumi Temple Case) v Mahant Suresh Das and Others (2020) 1 SCC 1 which particularises and empowers the Court to do ‘complete justice’ in any ‘cause or matter’, is relatable to particular equity. This is the reason that it has been held that Article 142(1) of the Constitution of India turns the maxim ‘equity follows the law’3on its head, as this Article in the Constitution of India gives legal authority to the Supreme Court of India to give equity over law. In I.C Golaknath v. State of Punjab4 , the Court stated that while invoking the doctrine of prospective overruling, held that the power under Article 142(1) of the Constitution of India is broad and flexible, and enables the Supreme Court to formulate legal doctrines to make ends meet of justice and when this Court exercises jurisdiction conferred by Article 142(1) of the Constitution of India to do ‘complete justice’ in a ‘cause or matter’, it stays within the bounds of the Constitution of India. The power specifically bestowed by the Constitution of India on the apex court of the country is with a purpose, and should be considered as integral to the decision in a ‘cause or matter’. Subsequently in Union Carbide Corporation v. Union of India5 , the Hon’ble Bench stated and laid distinct emphasis on the phrase ‘cause or matter’ and held that it covers all kinds of legal proceedings in Court, whether they are civil or criminal or interlocutory or final. Therefore, from the above cases, it can be explicited that the Supreme Court under Article 142(1) has the authority to ensure complete justice in any cases presented before it. These inherent and plenary powers complement the those granted by statutes and existed independently to achieve fairness. These 3 As the Court interprets the law and adjudicates specific cases, in many cases, it exercises and applies both equity in general and particular equity 4 I.C. Golak Nath v State of Punjab, AIR 1967 SC 1643 5 Union Carbide Corporation v Union of India (1991) 4 SCC 584 residual powers allow the Court to interpret and apply the law, guaranteeing due process and justice between the parties.
JUDGEMENT OF THE COURT
It was held that the court has the power to decide matters under Article – 142 of the constitution to do complete justice and further, the court can waive or reduce the six months cooling period as stipulated in section – 13(B) of The Hindu Marriage Act, after being satisfied that the marriage is emotionally dead, unworkable and beyond salvation. And while dealing with the rest of the issues the court ruled that it is a discretionary power to dissolve a marriage on the ground of irretrievable breakdown under Article 142(1) of the Indian Constitution, where there is no possibility of reunion and cohabitation17. Thus this power must be exercised with great caution and care. It was concluded that the court will consider the following questions while waiving off the cooling period:
I. How long parties have been married?
II. How long litigation is pending?
III. How long they have been staying apart?
IV. Are there any other proceedings between the parties?
V. Have the parties attended mediation/conciliation?
VI. 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?
Therefore, the waiver is not to be given on mere asking but on the court being satisfied beyond doubt that the marriage has shattered beyond repair. The bench also ruled that the mandatory waiting period of six months for divorce by mutual consent can be dispensed, subject to the requirements and conditions laid down, 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.
