Supreme Court’s Power to Grant Divorce

SC’s Power to Grant Divorce

SHILPA SAILESH v. VARUN SREENIVASAN

2023 SCC ONLINE SC 544

Facts: The parties, Shilpa Sailesh and Varun Sreenivasan, moved the Supreme Court in 2014 to grant them divorce on the ground of "irretrievable breakdown of marriage" under Article 142 of the Indian Constitution, which enables the Supreme Court to pass any directions that it deems necessary for providing “complete justice” in any cause or matter before it. The Supreme Court granted the divorce in 2015, however pending the decision of whether Article 142 could be used to decide divorce cases at all, the case was referred to a five-judge Bench in 2016.

Issues:

1. Can Article 142 be used to decide divorce cases at all?

2. If yes, what rules should the Court follow to dissolve a marriage between the consenting parties without referring them to Family Court?

Held: The five-judge Bench of the Supreme Court held that the exclusion power under Article 142 can be exercised by the Supreme Court to provide “complete justice” in any cause or matter before it, beyond the bounds of procedural and substantive law. The bench stated that Article 142 should be exercised responsibly to protect “fundamental general and specific principles” such as the fundamental rights, secularism, federalism and other basic features of the Constitution of India. Further, the Supreme Court can grant divorce under Article 142 without referring the parties to a Family Court, and before the cooling-off period of 6-18 months laid down in Section 13B of the Hindu Marriage Act, 1955, when the marriage is “irretrievably damaged”. The court must consider a number of factors to evaluate if the marriage is indeed beyond repair, including the duration of cohabitation after marriage, the last time the parties cohabited, nature of allegations made by the parties, attempts to settle disputes between the parties and a long period of separation.

OPINION

"The decision rendered by the five-judge bench of the Supreme Court in the case of Shilpa Sailesh v. Varun Sreenivasan is just and commendable. The bench rightly recognized the importance of Article 142 of the Constitution which enables the Supreme Court to provide “complete justice” in any matter before it, even beyond the bounds of procedural and substantive law. The Court's decision to grant divorce under Article 142 without refer the parties to a Family Court reinforces the need for maintaining harmony and integrity between the spouses and protects their right to have a peaceful and dignified life."