# SHILPA SAILESH v. VARUN SREENIVASAN

- **Citation:** [2023] 5 S.C.R. 165
- **Court:** Supreme Court of India
- **Decided:** 2023-05-01
- **Bench:** Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath, J.K. Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shilpa-sailesh-v-varun-sreenivasan-37159
- **Pages:** 50

## Headnote

Constitution of India - Art. 142 - Scope and ambit of - Held:
The power u/Art. 142(1) is undefined and uncatalogued, so as to
ensure elasticity to mould relief to suit a given situation - The Supreme
Court can depart from the procedure as well as the substantive laws,
as long as the decision is exercised based on considerations of
fundamental general and specific public policy - While deciding
whether to exercise discretion, the Court must consider the
substantive provisions as enacted and not ignore the same, albeit
the Court acts as a problem solver by balancing out equities between
the conflicting claims - This power is to be exercised in a 'cause or
matter'.
Constitution of India - Art. 142 - Hindu Marriage Act, 1955
- s.13-B - Grant of a decree of divorce by mutual consent - Whether
Supreme Court while hearing a transfer petition, or in any other
proceedings, can exercise power u/Art.142(1) to grant a decree of
divorce by mutual consent dispensing with the period and the
procedure prescribed u/s.13-B of the Act of 1956 and also quash
and dispose of other/connected proceedings and in which cases
and under what circumstances should Supreme Court exercise
jurisdiction u/Art. 142 - Held: In view of settlement between the
parties, the Supreme Court 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 case and Amit Kumar case
- This Court can also, in exercise of power u/Art. 142(1) can also
quash and set aside other proceedings and orders, including criminal
proceedings.
[2023] 5 S.C.R. 165
165
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SUPREME COURT REPORTS
[2023] 5 S.C.R.
Constitution of India - Art. 142 - Grant of divorce in case of
irretrievable breakdown of marriage - Whether Supreme Court can
grant divorce in exercise of power under Article 142(1), when there
is complete and irretrievable breakdown of marriage in spite of the
other spouses opposing the prayer - Held: The Court in exercise of
power under Art.142(1), has the discretion to dissolve the marriage
on the ground of its irretrievable breakdown - The Court's
discretionary power is to be exercised to do 'complete justice' to the
parties - The Court should be fully convinced and satisfied that the
marriage is totally unworkable, emotionally dead and beyond
salvation and, therefore, dissolution of marriage is the right solution
and the only way forward - The Supreme Court, as a court of equity,
is required to also balance the circumstances and the background
in which the party opposing the dissolution is placed.
Hindu Marriage Act, 1955 - Irretrievable breakdown of
marriage - Determination of - Held: 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. - The period of
separation should be sufficiently long, and anything above six years
or more will be a relevant factor - Question of custody and welfare
of minor children are also to be considered - Some of the factors
mentioned can be taken as illustrative, and worthy of consideration
- The factors are not codified - The exercise of jurisdiction u/Art.
142(1) is situation specific.
Constitution of India - Art.32 - Whether a party can directly
canvass before the Supreme Court on the ground of irretrievable
breakdown, by filing a writ petition under Art. 32 of the Const

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SHILPA SAILESH
v.
VARUN SREENIVASAN
(Transfer Petition (Civil) No. 1118 of 2014)
MAY 01, 2023
[SANJAY KISHAN KAUL, SANJIV KHANNA, ABHAY S.
OKA, VIKRAM NATH AND J.K. MAHESHWARI, JJ.]
Constitution of India - Art. 142 - Scope and ambit of - Held:
The power u/Art. 142(1) is undefined and uncatalogued, so as to
ensure elasticity to mould relief to suit a given situation - The Supreme
Court can depart from the procedure as well as the substantive laws,
as long as the decision is exercised based on considerations of
fundamental general and specific public policy - While deciding
whether to exercise discretion, the Court must consider the
substantive provisions as enacted and not ignore the same, albeit
the Court acts as a problem solver by balancing out equities between
the conflicting claims - This power is to be exercised in a 'cause or
matter'.
Constitution of India - Art. 142 - Hindu Marriage Act, 1955
- s.13-B - Grant of a decree of divorce by mutual consent - Whether
Supreme Court while hearing a transfer petition, or in any other
proceedings, can exercise power u/Art.142(1) to grant a decree of
divorce by mutual consent dispensing with the period and the
procedure prescribed u/s.13-B of the Act of 1956 and also quash
and dispose of other/connected proceedings and in which cases
and under what circumstances should Supreme Court exercise
jurisdiction u/Art. 142 - Held: In view of settlement between the
parties, the Supreme Court 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 case and Amit Kumar case
- This Court can also, in exercise of power u/Art. 142(1) can also
quash and set aside other proceedings and orders, including criminal
proceedings.
[2023] 5 S.C.R. 165
165
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SUPREME COURT REPORTS
[2023] 5 S.C.R.
Constitution of India - Art. 142 - Grant of divorce in case of
irretrievable breakdown of marriage - Whether Supreme Court can
grant divorce in exercise of power under Article 142(1), when there
is complete and irretrievable breakdown of marriage in spite of the
other spouses opposing the prayer - Held: The Court in exercise of
power under Art.142(1), has the discretion to dissolve the marriage
on the ground of its irretrievable breakdown - The Court's
discretionary power is to be exercised to do 'complete justice' to the
parties - The Court should be fully convinced and satisfied that the
marriage is totally unworkable, emotionally dead and beyond
salvation and, therefore, dissolution of marriage is the right solution
and the only way forward - The Supreme Court, as a court of equity,
is required to also balance the circumstances and the background
in which the party opposing the dissolution is placed.
Hindu Marriage Act, 1955 - Irretrievable breakdown of
marriage - Determination of - Held: 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. - The period of
separation should be sufficiently long, and anything above six years
or more will be a relevant factor - Question of custody and welfare
of minor children are also to be considered - Some of the factors
mentioned can be taken as illustrative, and worthy of consideration
- The factors are not codified - The exercise of jurisdiction u/Art.
142(1) is situation specific.
Constitution of India - Art.32 - Whether a party can directly
canvass before the Supreme Court on the ground of irretrievable
breakdown, by filing a writ petition under Art. 32 of the Constitution
- Held: The parties should not be permitted to circumvent the
procedure by resorting to the writ jurisdiction u/Art. 32 or 226 -
The remedy of a person aggrieved by the decision of the competent
judicial forum is to approach the superior forum for redressal of
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his grievance - Relief u/Art. 32 can be sought to enforce the rights
conferred by Part III of the Constitution of India, and on the proof
of infringement thereof - Judicial orders passed by the court in, or
in relation to, the proceedings pending before it, are not amenable
to correction u/Art. 32 of the Constitution of India - The view
regarding the same in Poonam v. Sumit Tanwar is accepted.
Judgment/Order - Clarification - Held: It is clarified that
reference in Poonam v. Sumit Tanwar and the observation that it is
questionable whether the period of six months for moving the second
motion can be waived has not been approved.
Answering the reference, the Court
HELD: The scope and ambit of power and jurisdiction of
this Court under Article 142(1) of the Constitution of India;
1. The plenary and conscientious power conferred on this
Court under Article 142(1) of the Constitution of India, seemingly
unhindered, is tempered or bounded by restraint, which must be
exercised based on fundamental considerations of general and
specific public policy. Fundamental general conditions of public
policy refer to the fundamental rights, secularism, federalism,
and other basic features of the Constitution of India. Specific public
policy should be understood as some express pre-eminent
prohibition in any substantive law, and not stipulations and
requirements to a particular statutory scheme. It should not
contravene a fundamental and non-derogable principle at the core
of the statute. Even in the strictest sense, it was never doubted
or debated that this Court is empowered under Article 142(1) of
the Constitution of India to do 'complete justice' without being
bound by the relevant provisions of procedure, if it is satisfied
that the departure from the said procedure is necessary to do
'complete justice' between the parties. Difference between
procedural and substantive law in jurisprudential terms is
contentious, albeit not necessary to be examined in depth in the
present decision, as in terms of the dictum enunciated by this
Court in Union Carbide Corporation and Supreme Court Bar
Association, exercise of power under Article 142(1) of the
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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 based on fundamental considerations of general or specific
public policy. As explained in Supreme Court Bar Association, the
exercise of power under Article 142(1) of the Constitution of India
being curative in nature, this Court would not ordinarily pass an
order ignoring or disregarding a statutory provision governing
the subject, except to balance the equities between conflicting
claims of the litigating parties by ironing out creases in a 'cause
or matter' before it. In this sense, this Court is not a forum of
restricted jurisdiction when it decides and settles the dispute in
a 'cause or matter'. While this Court cannot supplant the
substantive law by building a new edifice where none existed
earlier, or by ignoring express substantive statutory law
provisions, it is a problem-solver in the nebulous areas. As long
as 'complete justice' required by the 'cause or matter' is achieved
without violating fundamental principles of general or specific
public policy, the exercise of the power and discretion under
Article 142(1) is valid and as per the Constitution of India. This
is the reason why the power under Article 142(1) of the
Constitution of India is undefined and uncatalogued, so as to
ensure elasticity to mould relief to suit a given situation. The fact
that the power is conferred only on this Court is an assurance
that it will be used with due restraint and circumspection. [Para
13][188-F; 189-A-C; 190-A-F]
2. Question as to the power and jurisdiction of this Court
under Article 142(1) of the Constitution of India is answered
holding that this Court can depart from the procedure as well as
the substantive laws, as long as the decision is exercised based
on considerations of fundamental general and specific public
policy. While deciding whether to exercise discretion, this Court
must consider the substantive provisions as enacted and not
ignore the same, albeit this Court acts as a problem solver by
balancing out equities between the conflicting claims. This power
is to be exercised in a 'cause or matter'. [Para 42][212-D-E]
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Whether Court, while hearing a transfer petition, or in any
other proceedings, can exercise power under Article 142(1) of the
Constitution of India, in view of the settlement between the parties,
and grant a decree of divorce by mutual consent dispensing with
the period and the procedure prescribed under Section 13-B of the
Hindu Marriage Act, and also quash and dispose of other/connected
proceedings under the Protection of Women from Domestic Violence
Act, 2005, Section 125 of the Code of Criminal Procedure, 1973, or
criminal prosecution primarily under Section 498-A and other
provisions of the Indian Penal Code, 1860. If the answer to this
question is in the affirmative, in which cases and under what
circumstances should this Court exercise jurisdiction under Article
142(1) of the Constitution of India is an ancillary issue to be decided;
3.There is a difference between existence of a power, and
exercise of that power in a given case. Existence of power is
generally a matter of law, whereas exercise of power is a mixed
question of law and facts. Even when the power to pass a decree
of divorce by mutual consent exists and can be exercised by this
Court under Article 142(1) of the Constitution of India, when and
in which of the cases the power should be exercised to do
'complete justice' in a 'cause or matter' is an issue that has to be
determined independent of existence of the power. This
discretion has to be exercised on the basis of the factual matrix
in the particular case, evaluated on objective criteria and factors,
without ignoring the objective of the statutory provisions. [Para
20][196-C-D]
4. Section 13-B of the Hindu Marriage Act does not impose
any fetters on the powers of this Court to grant a decree of divorce
by mutual consent on a joint application, when the substantive
conditions of the Section are fulfilled and the Court, after referring
to the factors mentioned above, is convinced and of the opinion
that the decree of divorce should be granted. [Para 21][197-AB]
5. The legislature and the Courts treat matrimonial
litigations as a special, if not a unique category. Public policy
underlying the legislations dealing with family and matrimonial
matters is to encourage mutual settlement, as is clearly stated in
Section 89 of the C.P.C., Section 23(2) of the Hindu Marriage
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Act, and Section 9 of the Family Courts Act, 1984. Given that
there are multiple legislations governing different aspects, even
if the cause of dispute is identical or similar, most matrimonial
disputes lead to a miscellany of cases including criminal cases, at
times genuine, and on other occasions initiated because of
indignation, hurt, anger or even misguided advice to teach a
lesson. The multiplicity of litigations can restrict and block
solutions, as a settlement has to be holistic and comprehensive,
given that the objective and purpose is to enable the parties to
cohabit and live together, or if they decide to part ways, to have a
new beginning and settle down to live peacefully. The courts must
not encourage matrimonial litigation, and prolongation of such
litigation is detrimental to both the parties who lose their young
age in chasing multiple litigations. Thus, adopting a hyper-technical
view can be counter-productive as pendency itself causes pain,
suffering and harassment and, consequently, it is the duty of the
court to ensure that matrimonial matters are amicably resolved,
thereby bringing the agony, affliction, and torment to an end. In
this regard, the courts only have to enquire and ensure that the
settlement between the parties is achieved without pressure,
force, coercion, fraud, misrepresentation, or undue influence, and
that the consent is indeed sought by free will and choice, and the
autonomy of the parties is not compromised. In view of the above
legal position and discussion, Supreme Court, on the basis of
settlement between the parties, while passing a decree of divorce
by mutual consent, can set aside and quash other proceedings
and orders, including criminal cases and First Information
Report(s), provided the conditions, as specified in the various
judgments, are satisfied. [Para 22][197-B-D; 198-A, D]
6. 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 and Amit Kumar. This Court
can also, in exercise of power under Article 142(1) of the
Constitution of India, quash and set aside other proceedings and
orders, including criminal proceedings. [Para 42][213-C-D]
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Whether this Court can grant divorce in exercise of power
under Article 142(1) of the Constitution of India when there is
complete and irretrievable breakdown of marriage in spite of the
other spouse opposing the prayer.
7. This Court would not read the provisions of the Hindu
Marriage Act, their underlying intent, and any fundamental specific
issue of public policy, as barring this Court from dissolving a
broken and shattered marriage in exercise of the Constitutional
power under Article 142(1) of the Constitution of India. If at all,
the underlying fundamental issues of public policy, as explained
in the judgments of V. Bhagat, Ashok Hurra, and Naveen Kohli,
support the view that it would be in the best interest of all,
including the individuals involved, to give legality, in the form of
formal divorce, to a dead marriage, otherwise the litigation(s),
resultant sufferance, misery and torment shall continue.
Therefore, apportioning blame and greater fault may not be the
rule to resolve and adjudicate the dispute in rare and exceptional
matrimonial cases, as the rules of evidence under the Evidence
Act are rules of procedure. When the life-like situation is known
indubitably, the essence and objective behind section 13(1)(i-a)
of the Hindu Marriage Act that no spouse should be subjected to
mental cruelty and live in misery and pain is established. These
rules of procedure must give way to 'complete justice' in a 'cause
or matter'. Fault theory can be diluted by this Court to do
'complete justice' in a particular case, without breaching the selfimposed restraint applicable when this Court exercises power
under Article 142(1) of the Constitution of India. [Para 30][205C-F]
8. It is clearly stated that grant of divorce on the ground of
irretrievable breakdown of marriage by this Court is not a matter
of right, but a discretion which is to be exercised with great care
and caution, keeping in mind several factors ensuring that
'complete justice' is done to both parties. It is obvious that this
Court should be fully convinced and satisfied that the marriage is
totally unworkable, emotionally dead and beyond salvation and,
therefore, dissolution of marriage is the right solution and the
only way forward. That the marriage has irretrievably broken down
is to be factually determined and firmly established. For this,
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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. The period
of separation should be sufficiently long, and anything above six
years or more will be a relevant factor. But these facts have to be
evaluated keeping in view the economic and social status of the
parties, including their educational qualifications, whether the
parties have any children, their age, educational qualification, and
whether the other spouse and children are dependent, in which
event how and in what manner the party seeking divorce intends
to take care and provide for the spouse or the children. Question
of custody and welfare of minor children, provision for fair and
adequate alimony for the wife, and economic rights of the children
and other pending matters, if any, are relevant considerations.
This Court would not like to codify the factors so as to curtail
exercise of jurisdiction under Article 142(1) of the Constitution
of India, which is situation specific. Some of the factors mentioned
can be taken as illustrative, and worthy of consideration. [Para
33][207-C-G; 208-A]
9. 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. The
Court, as a court of equity, is required to also balance the
circumstances and the background in which the party opposing
the dissolution is placed. [Para 42][213-F-G]
10. This Court is of the opinion that the decisions of this
Court in Manish Goel , Neelam Kumar , Darshan Gupta , Hitesh
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Bhatnagar, Savitri Pandey and others have to be read down in
the context of the power of this Court given by the Constitution
of India to do 'complete justice' in exercise of the jurisdiction
under Article 142(1) of the Constitution of India. 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, this Court 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. As held above,
this Court's power to dissolve marriage on settlement by passing
a decree of divorce by mutual consent, as well as quash and set
aside other proceedings, including criminal proceedings, remains
and can be exercised. [Para 40][211-B-D]
11. Lastly, this Court must express its opinion on whether
a party can directly canvass before this Court the ground of
irretrievable breakdown by filing a writ petition under Article 32
of the Constitution. In Poonam v. Sumit Tanwar, a two judges'
bench of this Court has rightly held that any such attempt must
be spurned and not accepted, as the parties should not be
permitted to file a writ petition under Article 32 of the Constitution
of India, or for that matter under Article 226 of the Constitution
of India before the High Court, and seek divorce on the ground
of irretrievable breakdown of marriage. The reason is that the
remedy of a person aggrieved by the decision of the competent
judicial forum is to approach the superior tribunal/forum for
redressal of his/her grievance. The parties should not be
permitted to circumvent the procedure by resorting to the writ
jurisdiction under Article 32 or 226 of the Constitution of India,
as the case may be. Secondly, and more importantly, relief under
Article 32 of the Constitution of India can be sought to enforce
the rights conferred by Part III of the Constitution of India, and
on the proof of infringement thereof. Judicial orders passed by
the court in, or in relation to, the proceedings pending before it,
are not amenable to correction under Article 32 of the
Constitution of India. Therefore, a party cannot file a writ petition
under Article 32 of the Constitution of India and seek relief of
dissolution of marriage directly from this Court. [Para 41][211E-G; 212-A]
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M. Siddiq (Dead) Through Legal Representatives (Ram
Janmabhumi Temple Case) v. Mahant Suresh Das and
Others (2020) 1 SCC 1 : [2019] 18 SCR 1; Prem Chand
Garg and Another v. The Excise Commissioner, U.P. and
Others AIR 1963 SC 996 : [1963] Suppl. SCR 885;
Supreme Court Bar Association v. Union of India and
Another (1998) 4 SCC 409 : [1998] 2 SCR 795 -
followed.
Union Carbide Corporation and Others v. Union of
India and Others (1991) 4 SCC 584 : [1991] 1 Suppl.
SCR 251; Amardeep Singh v. Harveen Kaur (2017) 8
SCC 746 : [2017] 8 SCR 925; Amit Kumar v. Suman
Beniwal (2021) SCC Online SC 1270 - relied on.
Poonam v. Sumit Tanwar (2010) 4 SCC 460 : [2010] 3
SCR 557 - affirmed.
Manish Goel v. Rohini Goel (2010) 4 SCC 393 : [2010]
2 SCR 414; Anjana Kishore v. Puneet Kishore (2002)
10 SCC 194; Pradip Chandra Parija and Others v.
Pramod Chandra Patnaik and Others (2002) 1 SCC 1
: [2001] 5 Suppl. SCR 460; State (Through Central
Bureau of Investigation) v. Kalyan Singh (Former Chief
Minister of Uttar Pradesh) and Others (2017) 7 SCC
444 : [2017] 6 SCR 946; I. C. Golak Nath and Others
v. State of Punjab and Another AIR 1967 SC 1643 :
[1967] SCR 762; B.S. Joshi and Others v. State of
Haryana and Another (2003) 4 SCC 675 : [2003] 2
SCR 1104; Gian Singh v. State of Punjab and Another
(2012) 10 SCC 303 : [2012] 8 SCR 753; Jitendra
Raghuvanshi and Others v. Babita Raghuvanshi and
Another (2013) 4 SCC 58 : [2013] 2 SCR 921; State of
Madhya Pradesh v. Laxmi Narayan and Others (2019)
5 SCC 688 : [2019] 2 SCR 864; N.G. Dastane v. S.
Dastane (1975) 2 SCC 326 : [1975] 3 SCR 967;
V. Bhagat v. D. Bhagat (1994) 1 SCC 337 : [1993] 3
Suppl. SCR 796; Ashok Hurra v. Rupa Bipin Zaveri
(1997) 4 SCC 226 : [1997] 2 SCR 875; Naveen Kohli
v. Neelu Kohli (2006) 4 SCC 558 : [2006] 3 SCR 53;
Munish Kakkar v. Nidhi Kakkar (2020) 14 SCC 657 :
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[2019] 15 SCR 169; Sivasankaran v. Santhimeenal 2021
SCC OnLine SC 702; R. Srinivas Kumar v. R. Shametha
(2019) 9 SCC 409 : [2019] 12 SCR 873; Hitesh
Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234 :
[2011] 6 SCR 118; Sureshta Devi v. Om Prakash (1991)
2 SCC 25 : [1991] 1 SCR 274; Smruti Pahariya v.
Sanjay Pahariya (2009) 13 SCC 338 : [2009] 8 SCR
631; Shyam Sundar Kohli v. Sushma Kohli Alias Satya
Devi (2004) 7 SCC 747; Darshan Gupta v. Radhika
Gupta (2013) 9 SCC 1 : [2013] 10 SCR 937; Gurbux
Singh v. Harminder Kaur (2010) 14 SCC 301 : [2010]
12 SCR 275; Neelam Kumar v. Dayarani (2010) 13
SCC 298; Satish Sitole v. Ganga (2008) 7 SCC 734 :
[2008] 10 SCR 767; Vishnu Dutt Sharma v. Manju
Sharma (2009) 6 SCC 379 : [2009] 3 SCR 891; Savitri
Pandey v. Prem Chandra Pandey (2002) 2 SCC 73 :
[2002] 1 SCR 50; Jorden Diengdeh v. S.S. Chopra
(1985) 3 SCC 62 : [1985] 1 Suppl. SCR 704 - referred
to.
Horton v. Horton [1940] P.187; Owens v. Owens (2018)
UKSC 41 - referred to.
Case Law Reference
(2002) 10 SCC 194
referred to
Para 1
[2010] 2 SCR 414
referred to
Para 1
[2001] 5 Suppl. SCR 46
referred to
Para 5
[2019] 18 SCR 1
followed
Para 9
[2017] 6 SCR 946
referred to
Para 9
[1967] SCR 762
referred to
Para 9
[1991] 1 Suppl. SCR 251
relied on
Para 10
[1963] Suppl. SCR 885
followed
Para 11
[1998] 2 SCR 795
followed
Para 11
[2017] 8 SCR 925
relied on
Para 17
[2003] 2 SCR 1104
referred to
Para 22
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[2012] 8 SCR 753
referred to
Para 22
[2013] 2 SCR 921
referred to
Para 22
[2019] 2 SCR 864
referred to
Para 22
[1975] 3 SCR 967
referred to
Para 25
[1993] 3 Suppl. SCR 796
referred to
Para 26
[1997] 2 SCR 875
referred to
Para 27
[2006] 3 SCR 53
referred to
Para 28
[2019] 15 SCR 169
referred to
Para 31
[2019] 12 SCR 873
referred to
Para 32
[2011] 6 SCR 118
referred to
Para 35
[1991] 1 SCR 274
referred to
Para 35
[2009] 8 SCR 631
referred to
Para 35
(2004) 7 SCC 747
referred to
Para 36
[2013] 10 SCR 937
referred to
Para 37
[2010] 12 SCR 275
referred to
Para 37
(2010) 13 SCC 298
referred to
Para 38
[2008] 10 SCR 767
referred to
Para 38
[2009] 3 SCR 891
referred to
Para 38
[2002] 1 SCR 50
referred to
Para 39
[1985] 1 Suppl. SCR 704
referred to
Para 39
[2010] 3 SCR 557
affirmed
Para 41
CIVIL ORIGINAL JURISDICTION: Transfer Petition (Civil) No.
1118 of 2014.
Petition seeking transfer of P.A. No. 1148 of 2013 of the Family
Court, Pune at Pune, to Family Court Ernakulam, Kerala State.
With
Transfer Petition (Criminal) Nos. 96, 339, 382, 468 of 2014 and
Transfer Petition (Civil) Nos. 1481-1482 of 2014.
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Ms. Indira Jaising, V. Giri, Ms. Meenakshi Arora, Dushyant Dave,
Sr. Advs., (AC) Paras Nath Singh, Rohin Bhatt, Ms. Suveni Bhagat,
Ms. Ankita Gupta, Shrirang Varma, Arjun Ranganathan, Chandratanay
Chaube, Ms. Kiran Bhardwaj, Ms. Neha Sangwan, Advs.
V. Mohana, Sr. Adv., Ms. Hetu Arora Sethi, Ms. Saumya Tandon,
Ms. L.M. Bhat, Rahul Jain, Anirudh Bhat, Ms. Jyotika Kalra,
Ms. Annwesha Deb, Ms. Ayushi Chugh, Ms. Piyushi Malik, Aditya Jha,
Kartik Sundar, Amol Chitale, Nirnimesh Dube, Ankur S Kulkarni, Susheel
Joseph Cyriac, Ms. Sonia Dube, Subash Nair, Ms. Uditha Chakravarthy
for M/s. Lex Regis Law Offices, Roy Abraham, Ms. Reena Roy, Akhil
Abraham Roy, Mrs. Rajni Ohri Lal, Yaduinder Lal, Himinder Lal, Advs.
for the Petitioner.
Jay Savla, Sr. Advs., Kapil Sibal, Jasdeep Dhillon, Ms. Mohina
Anand, Anurag, Prabhat Chaurasia, Ms. Renuka Sahu, Sanjeev Agarwal,
Ms. P. Ankleshwari, Rohit Sharma, Shlok Chandra, Mukul Katyal, Rishabh
Parikh, Ms. Aparajita jamwal, Nimit Saigal, Ms. Malavika Rajkotia,
Ajunee Singh, Ms. Devina Malviya, Ms. Shrieya Maheshwari, Vikrant
Pachandra, Ms. Mansie Jain, Rohit Sharma, Ashok Kumar, Advs. for
the Respondent.
The Judgment of the Court was delivered by
SANJIV KHANNA, J.
Background.
The issues before this Constitution Bench, as adumbrated below,
arise primarily from the order dated 12.05.2010 passed in T.P. (C) No.
899 of 2007, Neeti Malviya v. Rakesh Malviya, wherein a bench of
two judges had doubted the view expressed in Anjana Kishore v. Puneet
Kishore1 and Manish Goel v. Rohini Goel2 that this Court, in exercise
of the power under Article 142 of the Constitution of India, cannot reduce
or waive the period of six months for moving the second motion as
stipulated in sub-section (2) to Section 13-B of the Hindu Marriage Act,
19563. Noticing that this Court, some High Courts and even family courts
in some States had been dispensing with or reducing the period of six
months for moving the second motion when there was no possibility
1 (2002) 10 SCC 194. This decision is rendered by a three judges' bench.
2 (2010) 4 SCC 393.
3 For Short, 'Hindu Marriage Act'.
SHILPA SAILESH v. VARUN SREENIVASAN
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SUPREME COURT REPORTS
[2023] 5 S.C.R.
whatsoever of the spouses cohabiting, the following question was referred
to a three judges' bench for a clear ruling and future guidance:
"(I) Whether the period prescribed in sub-section (2) of Section
13-B of the Hindu Marriage Act, 1955 can be waived or reduced
by this Court in exercise of its jurisdiction under Article 142 of the
Constitution?"
However, the question was never decided, since T.P. (C) No. 899
of 2007 was rendered infructuous as the parties, subsequent to the order
of reference, had dissolved their marriage by mutual consent.
2. In T.P. (C) No. 1118 of 20144, Shilpa Shailesh v. Varun
Sreenivasan, a bench of two judges, vide the order dated 06.04.20155,
issued notice to the Attorney General for India for addressing arguments
on the following issues:
"1. The scope and extent of power of this court under Article 142
of the Constitution of India insofar as dispensing with the period
of notice under Section 13-B of the Hindu Marriage Act, 1955 is
concerned.
2. The stand of the Government with regard to statutory
incorporation of irretrievable break-down of marriage as one of
the conditions for grant of divorce.
3. Any other incidental and ancillary issue that may arise may
also be addressed by the learned Attorney General."
3. The Attorney General for India, in paragraph 5 of his written
submissions, had suggested two additional questions of law, which read
thus:
"In view of the decisions of the Hon'ble Court in the above cases,
the view of the Hon'ble Court that divorce can be granted on the
ground of "irretrievable break-down of marriage" even in the
absence of such ground being contemplated by the Legislature
may require consideration by the Constitution Bench.
4 Tagged with T.P. (Crl) No. 96 of 2014, T.P. (Crl) No. 339 of 2014, T.P. (Crl.) No. 382
of 2014, T.P. (Crl.) No. 468 of 2014 and T.P. (C) No. 1481 - 1482 of 2014.
5 T.P. (C) No. 1118 of 2014 along with T.P. (Crl.) No. 382 of 2014, T.P. (Crl.) No. 468
of 2014 and T.P. (C) No. 1481 - 1482 of 2014.
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Similarly, the issue as to whether the period prescribed in subsection (2) of Section 13-B of the Hindu Marriage Act, 1955 can
be waived or reduced by this Court in exercise of its jurisdiction
under Article 142 of the Constitution also requires consideration
by the Constitution Bench."
4. T.P. (C) No. 1118 of 20146 was effectively disposed of vide the
order dated 06.05.2015 dissolving the marriage by grant of divorce by
mutual consent with the two judges' bench exercising jurisdiction under
Article 142 of the Constitution of India. However, in view the conflicting
ratio of the judgments of this Court on the applicability of the power and
jurisdiction of this Court under Article 142 of the Constitution of India,
the two judges' bench of this Court deferred the transfer petition to
remain pending for statistical purposes, and formulated the following
questions of law to be decided by a three judges' bench:
"4. Notwithstanding the above order passed by us, for the purposes
of statistics the present transfer petitions shall remain pending as
we are of the view that an issue of some importance needs to be
addressed by the Court in view of the huge number of requests
for exercise of power under Article 142 of the Constitution that
has confronted this Court consequent to settlement arrived at by
and between the husband and the wife to seek divorce by mutual
consent.
5. The questions are formulated herein below:
1. "What could be the broad parameters for exercise of powers
under Article 142 of the Constitution to dissolve a marriage
between the consenting parties without referring the parties to
the Family Court to wait for the mandatory period prescribed under
Section 13-B of the Hindu Marriage Act.
2. Whether the exercise of such jurisdiction under Article 142
should not be made at all or whether such exercise should be left
to be determined in the facts of every case."
5. Thereafter, vide the order dated 29.06.2016, another bench of
two judges of this Court, on examining the questions formulated in T.P.
(C) No. 1118 of 2014, referred to Article 145(3) of the Constitution of
6 Along with T.P.(Crl.) No. 382 of 2014, T.P.(Crl.) No. 468 of 2014 and T.P.(C) No.
1481 - 1482 of 2014.
SHILPA SAILESH v. VARUN SREENIVASAN
[SANJIV KHANNA, J.]
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[2023] 5 S.C.R.
India, and relying on Pradip Chandra Parija and Others v. Pramod
Chandra Patnaik and Others7, accepted the submission made by the
Attorney General for India to refer the questions formulated in T.P. (C)
No. 1118 of 2014 for consideration of the Constitution Bench8. It was
left to the discretion of the Constitution Bench to decide whether it would
be inclined to consider the two questions of law indicated by the Attorney
General for India.
6. This Constitution Bench, after hearing the parties, vide the order
dated 20.09.2022, had deemed it appropriate to formulate another question
of law, which reads thus:
"We do believe that another question which would require
consideration would be whether the power under Article 142 of
the Constitution of India is inhibited in any manner in a scenario
where there is an irretrievable breakdown of marriage in the opinion
of the Court but one of the parties is not consenting to the terms."
7. Accordingly, the following substantial questions of law arise for
consideration before us:
(i)
The scope and ambit of power and jurisdiction of this Court
under Article 142(1) of the Constitution of India;
(ii)
Secondly, in view of, and depending upon the findings of
this bench on the first question, whether this Court, while
hearing a transfer petition, or in any other proceedings, can
exercise power under Article 142(1) of the Constitution of
India, in view of the settlement between the parties, and
grant a decree of divorce by mutual consent dispensing with
the period and the procedure prescribed under Section 13B of the Hindu Marriage Act, and also quash and dispose
of other/connected proceedings under the Protection of
Women from Domestic Violence Act, 20059, Section 125
of the Code of Criminal Procedure, 197310, or criminal
prosecution primarily under Section 498-A and other
provisions of the Indian Penal Code, 186011. If the answer
7 (2002) 1 SCC 1.
8 We are not examining and commenting on the ratio expounded in Pradip Chandra
Parija & Others (supra).
9 For short, 'Domestic Violence Act'.
10 For short, 'Cr.P.C.'.
11 For short, 'I.P.C.'.
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to this question is in the affirmative, in which cases and
under what circumstances should this Court exercise
jurisdiction under Article 142(1) of the Constitution of India
is an ancillary issue to be decided; and
(iii)
The third issue, which is of considerable importance, is
whether this Court can grant divorce in exercise of power
under Article 142(1) of the Constitution of India when there
is complete and irretrievable breakdown of marriage in spite
of the other spouse opposing the prayer.
Article 142(1) of the Constitution of India.
8. Article 142(1) of the Constitution of India reads:
"142. Enforcement of decrees and orders of Supreme Court
and orders as to discovery, etc.-(1) 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."
This provision, apparently unique as it does not have any counterpart
in most of the major written constitutions of the world12, has its origin in
and is inspired from the age-old concepts of justice, equity, and good
conscience. Article 142(1) of the Constitution of India, which gives wide
and capacious power to the Supreme Court to do 'complete justice' in
any 'cause or matter' is significant, as the judgment delivered by this
Court ends the litigation between the parties. Given the expansive
amplitude of power under Article 142(1) of the Constitution of India, the
exercise of power must be legitimate, and clamours for caution, mindful
of the danger that arises from adopting an individualistic approach as to
the exercise of the Constitutional power.
9. Interpreting Article 142(1) of the Constitution of India, in
M. Siddiq (Dead) Through Legal Representatives (Ram
12 The Constitutions of Bangladesh and Nepal have provisions similar to Article 142 of
the Constitution of India, suggesting that they have drawn inspiration from Article 142
of the Constitution of India.
SHILPA SAILESH v. VARUN SREENIVASAN
[SANJIV KHANNA, J.]
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[2023] 5 S.C.R.
Janmabhumi Temple Case) v. Mahant Suresh Das and Others13,
the Constitution Bench of this Court has summarised the contours of the
power as:
"1023. ...The phrase 'is necessary for doing complete justice' is
of a 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. The demands of justice require a close
attention not just to positive law but also to the silences of positive
law to find within its interstices, a solution that is equitable and
just. The legal enterprise is premised on the application of generally
worded laws to the specifics of a case before courts. The
complexities of human history and activity inevitably lead to unique
contests "such as in this case, involving religion, history and the
law - which the law, by its general nature, is inadequate to deal
with. Even where positive law is clear, the deliberately wide
amplitude of the power under Article 142 empowers a court to
pass an order which accords with justice. For justice is the
foundation which brings home the purpose of any legal enterprise
and on which the legitimacy of the rule of law rests. The equitable
power under Article 142 of the Constitution brings to fore the
intersection between the general and specific. Courts may find
themselves in situations where the silences of the law need to be
infused with meaning or the rigours of its rough edges need to be
softened for law to retain its humane and compassionate face..."
Words in the above quotation that 'the equitable power under
Article 142 of the Constitution of India brings to fore the intersection
between the general and specific' laws, should be read as making a
reference to the classification of equity by Professor C.K. Allen14 in
two principle forms: (i) a liberal and humane interpretation of law in
general, so far as that is possible without actual antagonism to the law
itself - called equity in general; and (ii) a liberal and humane modification
of the law in exceptional cases, not coming within the ambit of the general
rule - called particular equity.15 The words 'cause or matter' in Article
142(1) of the Constitution of India, which particularise and empower
this Court to do 'complete justice' in that 'cause or matter', are relatable
13 (2020) 1 SCC 1.
14 'See - C.K. Allen, Law in the Making (Clarendon Press, Oxford, 1927).
15 See - Ninad Laud, Rationalising "Complete Justice" under Article 142, (2021) 1 SCC
J-30.
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to particular equity16. 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' on its head, as this Article in the Constitution of India gives legal
authority to this Court to give precedence to equity over law. This power,
like all powers under the Constitution of India, must be contained and
regulated, as it has been held that relief based on equity should not
disregard the substantive mandate of law based on underlying fundamental
general and specific issues of public policy.