Shilpa Sailesh v. Varun Sreenivasan

Supreme Court of India · 1 May 2023 · 5 judges

The Supreme Court can, under Article 142(1), waive the six-month period under Section 13-B(2) of the Hindu Marriage Act on a settlement, and can dissolve a marriage that has irretrievably broken down even if one spouse opposes.

Facts

In Neeti Malviya v. Rakesh Malviya (2010) a two-judge bench doubted earlier rulings that the Court cannot, under Article 142, waive the six-month period for the second motion under Section 13-B(2) of the Hindu Marriage Act, but that case became infructuous. In this transfer petition, a two-judge bench on 06.05.2015 dissolved the marriage by mutual consent under Article 142(1) but kept the petition pending and framed questions on the parameters for such orders, given the many requests for them. On 29.06.2016 the questions were referred to a Constitution Bench at the Attorney General's suggestion. On 20.09.2022 the Constitution Bench added the question whether the Article 142 power is limited where the marriage has irretrievably broken down but one party does not consent.

Questions before the Court

What is the scope of the power under Article 142(1) to do complete justice, and how far may it depart from statutory law?
Can the Court, on a settlement, grant divorce by mutual consent dispensing with the period and procedure under Section 13-B, and quash connected proceedings under the Domestic Violence Act, Section 125 CrPC and Section 498-A IPC?
Can the Court grant divorce on the ground of irretrievable breakdown of marriage when the other spouse opposes it?

What the Court held

Under Article 142(1) the Court can depart from procedural and substantive law, so long as it acts on considerations of fundamental general and specific public policy. It must consider and not ignore the substantive provisions, acting as a problem solver balancing equities. The ratio of Union Carbide on this point holds good.
On a settlement, the Court has the discretion to grant divorce by mutual consent without requiring the second motion under Section 13-B(2), exercised with care and with regard to the factors in Amardeep Singh and Amit Kumar. It can also quash other proceedings, including criminal cases and FIRs, where the conditions in the decided cases are met.
The Court has the discretion under Article 142(1) to dissolve a marriage on the ground of irretrievable breakdown even when one spouse opposes. The power to do complete justice is not fettered by the fault theory applied to divorce petitions under Section 13(1)(i-a).
Divorce on irretrievable breakdown is not a matter of right. The breakdown must be factually established, considering the period of cohabitation and separation (above six years is relevant), the allegations and proceedings, attempts at settlement, the parties' status, children, and provision for the spouse. These factors are illustrative, not codified.
A party cannot file a writ petition under Article 32 or Article 226 seeking divorce on the ground of irretrievable breakdown, as Poonam v. Sumit Tanwar held.

Why it matters

The judgment settles that the Supreme Court may dissolve a Hindu marriage under Article 142(1) on irretrievable breakdown, which is not a statutory ground, and may waive the cooling off period under Section 13-B(2). It states that earlier decisions such as Manish Goel, Neelam Kumar, Darshan Gupta, Hitesh Bhatnagar and Savitri Pandey have to be read down in light of this power, and lists factors for deciding whether a marriage has irretrievably broken down.

In the Court's words

Copied from the official judgment; each passage links to its page.

“In view of our findings on the first question, this question has to be answered in the affirmative, inter alia, holding that this Court, in view of settlement between the parties, 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).”

Sanjiv Khanna, J.Page 59 of the judgment

“This question is also answered in the affirmative, inter alia, holding that this Court, in exercise of power under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be 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.”

Sanjiv Khanna, J.Page 60 of the judgment

“In consonance with our findings on the scope and ambit of the power under Article 142(1) of the Constitution of India, in the context of matrimonial disputes arising out of the Hindu Marriage Act, we hold that the power to do ‘complete justice’ is not fettered by the doctrine of fault and blame, applicable to petitions for divorce under Section 13(1)(i-a) of the Hindu Marriage Act.”

Sanjiv Khanna, J.Page 56 of the judgment

“That the marriage has irretrievably broken down is to be factually determined and firmly established. For this, several factors are to be considered such as the period of time the parties had cohabited after marriage; when the parties had last cohabited; the nature of allegations made by the parties against each other and their family members; the orders passed in the legal proceedings from time to time, cumulative impact on the personal relationship; whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation, and when the last attempt was made, etc.”

Sanjiv Khanna, J.Page 49 of the judgment

Provisions interpreted

Related judgments

Follows Union Carbide Corporation v. Union of India (1991)“As observed by us, the ratio as expounded in Union Carbide Corporation (supra) holds good and applies.” (page 19)
Follows Supreme Court Bar Association v. Union of India (1998)“in terms of the dictum enunciated by this Court in Union Carbide Corporation (supra) and Supreme Court Bar Association (supra), exercise of power under Article 142(1) of the Constitution of India to do ‘complete justice’ in a ‘cause or matter’ is prohibited only when the exercise is to pass an order which is plainly and expressly barred by statutory provisions of substantive law” (page 19)
Follows Amardeep Singh v. Harveen Kaur (2017)“This power should be exercised with care and caution, keeping in mind the factors stated in Amardeep Singh (supra) and Amit Kumar (supra).” (page 59)
Distinguished in In Re: Interplay between Arbitration Agreements under the Arbitration and Conciliation Act 1996 and the Indian Stamp Act 1899 (2023)
Followed in Gayatri Balasamy v. ISG Novasoft Technologies Ltd. (2025)

Case and bench

Parties: Shilpa Sailesh v. Varun Sreenivasan
Case: Transfer Petition (Civil) No. 1118 of 2014
Decided: 1 May 2023
Bench: Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath, J.K. Maheshwari
Opinions: Unanimous. Judgment of the Constitution Bench written by Sanjiv Khanna, J.

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