Case: Shilpa Sailesh V. Varun Sreenivasan (2023 Insc 468)

CONSTITUTION BENCH- Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice Abhay S. Oka, Justice Vikram Nath, Justice J.K. Maheshwari

Facts

Shilpa Sailesh and Varun Sreenivasan were a married couple. Their marriage was performed under the Hindu Marriage Act, 1955. However, soon after their marriage, they started facing serious personal and emotional problems. These issues caused a lot of stress and unhappiness between them. As time passed, the couple could not live together peacefully. They separated and started living apart. Despite efforts from both sides to settle their differences, they could not resolve their problems. They tried various ways to reconcile, including discussions and attempts by family members to mediate, but nothing worked.

Eventually, both Shilpa and Varun came to the conclusion that their marriage had broken down completely. They felt that there was no chance of saving it. They also believed that continuing the marriage would only cause more harm and emotional pain to both of them. Since the marriage had become emotionally dead, they wanted to end it. However, under the Hindu Marriage Act, there is no specific provision that allows a couple to divorce just because their marriage has broken down.

There is a provision under Section 13B of the Act for divorce by mutual consent, but it has certain conditions- Both parties must agree to the divorce and they must wait for a ‘cooling-off period’ of 6 months after filing the first petition. However, this provision comes with its own challenges- in some situations, one party may refuse to give consent, or the cooling-off period may seem unnecessary if the couple has already been separated for many years.

In this case, the couple directly approached the Supreme Court by way of a Transfer Petition and eventually moved a motion to dissolve the marriage on the ground of irretrievable breakdown. They asked the Court to dissolve their marriage immediately on the ground that it had irretrievably broken down, without going through the long process mentioned in the law.

The Supreme Court, while deciding this case, noted that thousands of similar cases are still pending in family courts and High Courts across the country. Recognizing the seriousness of the situation, the Court felt it was necessary to establish clear guidelines for handling such matters and referred the matter to a Constitution Bench.

Issues:

i. Whether the Supreme Court can exercise its powers under Article 142 of the Constitution to grant a decree of divorce on the ground of irretrievable breakdown of marriage, even when one party does not consent?

ii. Whether the Supreme Court, using its powers under Article 142, can waive the mandatory six-month waiting period required under Section 13B of the Hindu Marriage Act for mutual consent divorce?

Analysis

• Purpose and Power of Article 142- The Court began by examining Article 142(1) of the Constitution, which allows it to pass any order necessary to do ‘complete justice’ in any matter before it. This is a broad and discretionary power—unique to the Supreme Court—and meant to ensure that justice is not defeated by procedural technicalities. The Court clarified that this power is not meant to override laws, but rather to supplement them in exceptional cases where the law does not provide an adequate remedy or when strictly following the law would lead to injustice. In the context of broken marriages, especially where litigation has dragged on for years with no hope of reconciliation, the Court recognized that applying the standard procedures under the Hindu Marriage Act may sometimes do more harm than good.

• Why Irretrievable Breakdown Should Be Considered a Ground- The Court acknowledged that irretrievable breakdown of marriage is not a statutory ground for divorce under the Hindu Marriage Act. However, it is a widely accepted ground in other jurisdictions like the UK and the US. The Law Commission of India had also recommended (in its 71st and 217th reports) that irretrievable breakdown should be recognized as a valid reason for divorce. The Court stated that forcing a couple to stay legally married when they have been mentally, emotionally, and physically separated for many years is both unfair and unproductive. In such cases, keeping the marriage alive in name only serves no meaningful purpose and can actually amount to cruelty. Therefore, in the absence of a clear legal provision, the Court saw Article 142 as a necessary tool to provide relief in these exceptional situations.

• Balance Between Law and Equity- The Court was careful to stress that this power should be used sparingly and with caution. Article 142 is not a shortcut to bypass the legal process. It is meant for situations where the strict application of law results in undue hardship or denial of justice. For example, in cases where the couple has been living apart for a long time, there is no hope of reconciliation, multiple cases (civil and criminal) have been filed against each other, one party is simply refusing to cooperate or is using the law to harass or prolong the dispute —then the Supreme Court can use Article 142 to put an end to the litigation and dissolve the marriage in the interest of justice.

• Waiver of Statutory Cooling-off Period and Quashing of Proceedings- Another key aspect the Court addressed was whether it can use Article 142 to waive the six-month waiting period required under Section 13B (2) of the Hindu Marriage Act for mutual consent divorce. The Court held that when both parties clearly want a divorce and have been living apart for a long time, there is no point in making them wait further. In such cases, the waiting period can be waived under Article 142. Additionally, if there are civil or criminal cases pending between the couple, especially those arising from the marital dispute (like domestic violence complaints or property cases), the Court can also quash those proceedings to bring about a clean and complete separation.

• Even When One Party Opposes- Perhaps the most significant part of the ruling was that the Court clarified it can grant a divorce under Article 142 even if one spouse is unwilling, as long as it is convinced that the marriage has completely and irretrievably broken down and there is no scope for repair. This is important because in many cases, one spouse may refuse consent simply to delay the process or out of spite, even though the marriage is clearly over. The Court recognized that the right to dignity and freedom of the other spouse should not be held hostage in such cases.

Judgment

In its landmark judgment, the Supreme Court unanimously held that it does possess the authority under Article 142(1) of the Indian Constitution to grant a decree of divorce on the ground of irretrievable breakdown of marriage, even if such a ground is not expressly mentioned in the Hindu Marriage Act, 1955, and even if one party opposes the divorce. The Court reasoned that Article 142 is a unique constitutional tool that empowers the Supreme Court to do ‘complete justice’ in any matter before it. When a marriage has broken down to such an extent that there is no possibility of reunion, the Court can step in to prevent continued legal and emotional hardship. This power, the Court clarified, does not override statutory law but fills the legal vacuum in exceptional cases where rigid legal procedures fail to provide relief. In such cases, enforcing the continuance of a marriage in name alone would serve no societal or individual benefit, and may even amount to mental cruelty.

The Court also laid down a clear framework for future cases involving irretrievable breakdown. It emphasized that this power must be exercised cautiously and sparingly, with due regard to all facts and circumstances—such as the duration of separation, failed attempts at reconciliation, the absence of emotional bonding, and the possibility of future rehabilitation of the spouses. Additionally, the Supreme Court confirmed that it can also invoke Article 142 to waive the statutory six-month waiting period prescribed under Section 13B (2) of the Hindu Marriage Act, 1955, when both parties seek divorce by mutual consent. Further, the Court can quash pending civil or criminal proceedings arising from the marriage to ensure a complete and amicable resolution. With this judgment, the Supreme Court has set a progressive precedent, recognizing that the law must evolve with changing social realities, and that justice sometimes requires a flexible, equitable approach—especially in the delicate context of matrimonial disputes.

Conclusion

In summary, the Court used this case to establish a practical and humane approach to matrimonial disputes. It affirmed that while laws must be respected, the goal of justice should not be lost in rigid legal processes. Article 142 serves as a constitutional safeguard for exceptional situations, and when used with care, it can bring closure, peace, and justice to individuals trapped in long-dead marriages.