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Aditya Sharma,
Institute of law, Nirma University
Case name | Shilpa Sailesh Vs. Varun Sreenivasan |
Citation | MANU/SC/0502/2023 |
Coram | Sanjay Kishan Kaul, Sanjiv Khanna, Abhay Shreeniwas Oka, Vikram Nath and J.K. Maheshwari, JJ. |
Court | Supreme court of India |
FACTS
The parties of the case, Mrs. Shilpa and Mr. Varun in 2014 filed motion before hon’ble supreme court for obtaining divorce by mutual consent under section 13-B of Hindu Marriage act, 1955 stating that their marriage has irretrievably broken and there are no chances for parties to get back together. The supreme court in 2015 invoked its power under article142(1) of the Indian constitution and granted divorce decree on the ground that marriage was irretrievably broken. The supreme court while disposing this case observed that thousands of cases are pending before family courts and High courts across the nation and felt a need to laydown guidelines for such cases and also decided to discuss about the ambit of power provided under article 142 of the Indian constitution. This case was sent to divisional bench of supreme court and appointed Senior Advocate Indira Jaisingh, Dushyant Dave, and Meenakshi Arora as amicus curiae to discuss upon the issues involved, Later on this case was referred to a constitutional bench comprising J. Sanjay Kishan Kaul, J. Sanjiv Khanna, J. Abhay Shreeniwas Oka, J.
Vikram Nath and J. J.K. Maheshwari to deliberate upon the involved issues.
ISSUES INVOLVED
The following issues and substantial questions were dealt by the supreme court in this case:
1.The scope and ambit of power and the jurisdiction of supreme court under article 142(1) of the Indian constitution.
2.Whether the supreme court has the power under Article 142(1) of the Indian constitution to dispense off with 6 months waiting period as mentioned in section 13B
of Hindu marriage act, 1955 and grant a decree of divorce by mutual consent and can it also quash the pending civil and criminal proceedings?
3.Whether the Supreme Court can grant a decree of divorce by using its power under Article 142(1) of Indian constitution when the marriage has irretrievably broken and the other spouse is opposing the prayer?[1]
DECISION BY THE SUPREME COURT
1. The Supreme court in dealing with the 1st issue referred to various judgements in deciding the scope and ambit of power under Article 142(1) of the Indian constitution and held that the power of supreme court under article 142 is bound by restraint and can be exercised taking into account the fundamental considerations of general and specific public policy. Fundamental consideration means fundamental rights, secularism and other basic features of the Indian constitution and specific public policies refers to the pre- eminent prohibition in any substantial law. The supreme court said that the power provided to the supreme court under Article 142 of the Indian constitution is unique and does not have any counterpart in mostly written constitution across the globe. The supreme court in further deciding upon the scope and power of the Article 142 referred to M Siddiqui v. Mahant Suresh Das and Ors. MANU/SC/1538/2019 which gave a wide interpretation to the phrase 'is necessary for doing complete justice' and includes cases where positive laws are silent in any case or the equitable power under Article 142 is needed to do the complete justice where any procedural law or any positive law is unable to dispense justice. The power under Article 142 is to be used to make decision which serves the “best interest of justice”.
The bench also referred to Union Carbide Corporation v. Union of India and Ors. MANU/SC/0058/1992 where the court make a distinction between the power of supreme court under Article 142 of the Indian constitution with that of High courts and civil courts under section 151 of Civil procedural code and 482 of criminal procedural code and said that the courts can make under decision under these law to meet the ends of justice but under Article 142 supreme court has the power to do complete justice in any cause or matter until or unless it is strictly barred by any statutory provision.
In I.C. Golak Nath and Ors. v. State of Punjab and Anr. MANU/SC/0029/1967 the chief justice at that time J. Subba Rao said that power of supreme court under Article 142 of the Indian constitution is wide and elastic and it enables the court to formulate the doctrines.
The hon’ble supreme court further referred to Supreme Court Bar Association v. Union of India MANU/SC/1183/2015 where it was held that any order passed by Supreme court under Article 142 of the Indian constitution against any statutory provision can only be passed to balance the equities in the conflicting parties and the court is satisfied that making a decision against the statute would serve the complete justice. Court is a problem solver in an unclear area where statutory provisions cannot dispense complete justice.
2. Supreme court answered this question in affirmation and goes on discussing about the objective 6 months cooling-off period provided in section 13B(2) of Hindu marriage act which is to make the parties rethink their decision and also allow the party to cool off their anger and preventing them from making an impulsive decision. The hon’ble supreme court goes on saying that the grant of divorce in case of irretrievable broken down of marriage cannot be claimed as a matter of right but rather it a discretion of court to grant divorce which is to be given with great caution and care, keeping in mind that it has to do complete justice to both the parties and also take into account the status of marriage whether it can be salvaged or not or are there any ways to save the marriage. The court can give decision after making sure that marriage is dead and there is not hope for retrieval of the marriage.
The court shall also see the factor given by supreme court in Amardeep Singh v. Harveen Kaur MANU/SC/1134/2017 in this case it was held that cooling off period of 6 months are discretionary in nature and can be waived off if the six conditions are satisfied:
(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 genuine settlement which takes care of alimony, custody of child or any other pending issues between the parties?2[2]
The hon’ble supreme court also referred Amit Kumar v. Suman Beniwal
MANU/SC/1293/2021 where the hon’ble supreme court said that if the six conditions mentioned by this hon’ble court in Amardeep Singh case are fulfilled then the court has to ascertain whether the parties have freely consented to all the settlement made by them.
Proceeding towards the second part of the 2nd issue the parties before coming to this court must have filed various cases in civil, criminal, family courts and the proceedings in those courts can be pending which will only prolong the suffering of the parties and prevent them from starting a fresh life, The hon’ble supreme court in order to serve the best interest to the parties can exercise its power under Article 142(1) and preserve the cause of justice by quashing both civil as well as criminal proceedings.
Hence, it was decided by the supreme court that the waiting period of 6 months can be waived off if the conditions set in Amit Kumar case (Supra) and Amardeep Singh case (Supra) are fulfilled and can quash civil and criminal proceeding under Article 142.
3. The hon’ble supreme court before answering this issue referred to various cases Ashok Hurra v. Rupa Bipin Zaveri MANU/SC/0283/1997 in this case the couple was living separately for 13 years but were still refusing to take divorce with mutual consent, The husband had remarried and also had child out of that wedlock, The court was of opinion that the marriage was completely dead and used its power under Article 142 of the Indian constitution and grant a decree of divorce.
In Munish Kakkar v. Nidhi Kakkar MANU/SC/1753/2019 parties were dealing with multifarious litigations including divorce proceedings but they were opposed to divorce by mutual consent, The hon’ble court used its power under Article 142 and granted divorce decree. There was no need for consent by both the parties for the hon’ble court to exercise its power under Article 142 while passing a decree of divorce.
In Sivasankaran v. Santhimeenal MANU/SC/0634/2021 the decree of divorce was passed Under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, The appellant had remarried within 7 days of passing the decree but the wife opposed the divorce decree
and appealed against it, All the efforts of mediations and reconciliations went futile and the case came to the hon’ble supreme court, The hon’ble relied upon the Munish Kakkar case (Supra) and dissolve the marriage on the ground of irretrievable breakdown of marriage by using its power under Article 142(1).
The court after relying upon these cases answers about this issue in affirmation and held that hon’ble supreme court has the power under Article 142(1) of the constitution of India to dissolve the marriage on the ground of irretrievable breakdown of marriage, This power shall be used at the discretion of the court, when the court is of opinion that it is necessary to do “complete justice” to the parties. The court is of opinion that there is no way party will cohabit together and marriage is dead and cannot be salvaged.
Hence, court can use its power under article 142 and can grant a divorce decree in irretrievable breakdown of marriage do to complete justice even if the other spouse opposed the prayer.
The court in this case also clarified that parties cannot file a writ petition under Article 32 or under Article 226 to seek divorce on the ground of irretrievable breakdown of marriage. Article 32 and Article 226 can only be invoked and seek remedy under them when a person’s rights under part III of the constitution are violated. Also order for decree for divorce are not appealable under Article 32.
REFERENCES
[1] MANU/SC/0502/2023
[2] Shilpa Sailesh v/s Varun Sreenivasan: Judgment That Padded SC’s Divorce Granting Power Under Article 142. (n.d.). Legal Service India
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