CASE REVIEW – SHILPA SAILESH V/S VARUN SREENIVASAN

Name of the court SUPREME COURT OF INDIA

Coram HON’BLE MR. JUSTICE SANJAY KISHAN KAUL

Judgment delivered by HON’BLE MR. JUSTICE SANJAY KISHAN KAUL

Date of judgment 1 May, 2023

Petitioner SHILPA SAILESH

Respondent VARUN SREENIVASAN

Sections involved ARTICLE 142 IN THE CONSTITUTION OF INDIA, 1949

Article 142 of the Indian Constitution permits the Supreme Court to exercise its inherent
power in the absence of any relevant legislation. The Supreme Court may issue an order if it
thinks fit that it is necessary to uphold equity, justice and good conscience. Section 13B of the
Hindu Marriage Act, 1955 prescribes the procedure to be followed in cases of mutual divorce,
where the parties mutually agree to separate from each other. 1 In the year of 2014, the
petitioner and respondent Shilpa Sailesh and Varun Sreenivasan approached the Supreme
Court to grant a divorce based on an ‘irrevocable breakdown of marriage’ which was not a
prescribed ground under the Hindu Marriage Act, 1955. In the year of 2015, the Supreme
Court granted them divorce by invoking their inherent power given under Article 142 of the
Constitution.

The Supreme Court while dealing with this case observed that many cases are pending in
various high courts and family courts, hence decided to lay down certain guidelines which
need to be followed while invoking Article 142. In the year of 2016, a 2-judge bench was
appointed to deal with this matter but later it was sent to a larger bench i.e., the constitutional
bench headed by Hon’ble Justice Sanjay Kishan Kaul and comprising of Justice J.K.
Maheshwari, Justice Sanjiv Khanna, Justice A.S. Oka, and Justice Vikram Nath heard the
matter on September 20, 2022 and judgment was pronounced on 1 May 2023.2

Issues Raised

1. What is the scope and extent of power of the Supreme Court to decide a matter under
consideration of Article 142 of the Constitution.
2. Whether the Supreme Court can waive the cooling period as mentioned in Section
13B of the Hindu Marriage Act, 1955 by using its inherent power as prescribed under
Article 142.
3. Whether the Supreme Court has the authority to grant a divorce under Section 13B of
the Hindu Marriage Act, 1955 even if one of the parties opposes the divorce and
marriage is completely broken down.

1
https://www.scobserver.in/reports/divorce-under-article-142-judgement-in-plain-english/
2
https://www.legalserviceindia.com/legal/article-13037-shilpa-sailesh-v-s-varun-sreenivasan-judgment-that-
padded-sc-s-divorce-granting-power-under-article-142.html
The Scope of Supreme Court’s Power under Article 142

The Supreme Court in this case has deal with one the most important issue i.e., the scope of
the Supreme court in using Article 142. While focusing on this issue the Supreme Court
heavily relied upon the case ‘M Siddiqui v. Mahant Suresh Das’. The Supreme court gave
wide interpretation to the phrase ‘as it is necessary for doing complete justice’, Since
numerous instances were submitted by the Supreme Court for the interpretation of Article
142, the honourable Supreme Court of India used its authority under Article 142 to provide a
comprehensive perspective in this issue. The word "is necessary for doing complete justice"
was broadly defined by the court since it is the goal of the court to deliver each judgement,
decision, or decree in the interest of justice and in accordance with the fundamental principles
of the Indian Constitution, namely to be fair, just, reasonable, and non-arbitrary.

The Supreme Court of India has the inherent authority to address the primary question of the
current case, which has been reaffirmed in numerous decisions, in accordance with Article
142 of the Indian Constitution. The irretrievable breakup of the marriage is not a legally
recognised basis for divorce because it is non-statutory. Every couple must go through the
divorce procedure, and there is a six-month cooling-off period to either reunite or amicably
settle their differences. This provides an opportunity for the parties to consider whether there
is still a chance that the marriage can be saved.3

Interpretation of Section 13B of Hindu Marriage Act, 1955

Hindu marriage is historically seen as a holy union, a devoted partnership that last forever.
The Hindu Marriage Act grants the right to get a divorce on the grounds listed in Section 13
and ask the court to dissolve a Hindu marriage. In addition, Section 13-B of the Hindu
Marriage Act was enacted to provide for divorce by consent of both parties.

Section 13-B (1) of the Hindu Marriage Act states that a decree of divorce may be granted on
a joint petition by the parties. The couple may file a second motion with the court after six
months, but no later than eighteen months, after the first motion is granted, according to
Section 13-B, subsection (2) of the Hindu Marriage Act. The parties are prohibited from
acting before six months have passed. When the second motion is submitted, the court will

3
https://www.reddyandreddy.org/shilpa-sailesh-v-varun-sreenivasan-on-1st-may-2023-transfer-petition-civil-no-
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investigate, and if it is satisfied that the allegations made in the petition are true, it may issue
a divorce order.

Arguments by the parties

Senior solicitors who were appointed as amici curiae in the current case submitted a variety
of suggestions that reflected a variety of viewpoints. It was argued that the Court should be
given the authority under Article 142 to dissolve marriages when they had irretrievably fallen
apart.

Another viewpoint was that the irreparable dissolution of a marriage could be viewed as a
form of cruelty, particularly mental abuse. As a result, even in the absence of a specific
justification for the irretrievable breakup of the marriage, the court may award a divorce on
the basis of cruelty. Last but not least, it was asserted that the Supreme Court, while
exercising its extraordinary power pursuant to Article 142, is not constrained by statutory law
and is free to act in accordance with justice, equity, and good conscience. This means that the
Court may nevertheless award divorce if it is required for the purposes of justice, even if
there is no clear legal provision for the irretrievable breakup of a marriage. The Honourable
Supreme Court has discussed all of these ideas and taken into account the subject of
irretrievable breakdown of marriage from a variety of angles. In the end, the Honourable
Supreme Court chose the choice that served justice the best.4

JUDGMENT

According to the ruling, the court has the authority to resolve disputes under Article 142 of
the constitution in order to render full justice. In addition, the court may waive or shorten the
six-month cooling-off period specified in Section 13(B) of the Hindu Marriage Act if it
determines that the marriage is emotionally dead, hopelessly unworkable, or beyond saving.
And the court decided that under Article 142(1) of the Indian Constitution, where there is no
chance of reconciliation and cohabitation, it is within the court's discretion to dissolve a
marriage on the grounds of irretrievable breakdown. Therefore, this power must be used with
extreme care and prudence. Therefore, the waiver cannot be granted simply by requesting;
rather, it must be determined by the court that the marriage has irreparably broken. The bench

4
https://www.reddyandreddy.org/shilpa-sailesh-v-varun-sreenivasan-on-1st-may-2023-transfer-petition-civil-no-
1118-of-2014/
further decided that, according to the established standards and conditions, which may vary
from case to case, the necessary six-month waiting time for divorce by mutual consent may
be waived. 5

Conclusion

The supreme court decided in this case that it has the authority to end a marriage if it has
irretrievably broken down. Even if one of the parties is unwilling, the Supreme Court may
ignore the Hindu Marriage Act of 1955's mandated six-month waiting period for divorce and
permit the dissolution of the marriage on the basis of an irretrievable breakdown. The
decision permits parties to file for divorce on the basis of irretrievable breakdown without
waiting the required time and to do so immediately before the Supreme Court. Dissolving
such a marriage, even if one of the parties’ consents, would offer a rapid resolution for both
parties who have jointly decided that the marriage should be dissolved if there is no chance of
reconciliation. The judgement is significant because under the Hindu Marriage Act of 1955,
irretrievable breakdown of marriage is not yet a basis for divorce. For irretrievable divorce,
there is still no codified law in place. The Law Commission advocated including irretrievable
breakdown as a third basis for divorce in its 71st report in 1978 and again in 2009. The
Supreme Court's clarification that a party cannot directly request a marriage dissolution under
Article 32 (or Article 226 of the Indian Constitution) through the filing of a writ petition is
another noteworthy aspect of the ruling.

5
https://main.sci.gov.in/supremecourt/2014/26304/26304_2014_2_1501_44203_Judgement_01-May-2023.pdf