2023 (5) TMI 1387 - SC - Indian Laws

Supreme Court can waive mandatory waiting period under Section 13-B for mutual consent divorce using Article 142 powers

Shilpa Sailesh Versus Varun Sreenivasan

The SC held that under Article 142 of the Constitution, it possesses discretionary power to waive the mandatory waiting period under Section 13-B of the ... Scope and extent of power of this Court Under Article 142 of the Constitution of India - 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? - Whether the Supreme Court can grant divorce on the ground of irretrievable breakdown of marriage despite opposition from one spouse. Scope and extent of power of this Court Under Article 142 of the Constitution of India - HELD THAT:- This 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'. Whether the Supreme Court can waive or reduce the mandatory period under Section 13-B of the Hindu Marriage Act for divorce by mutual consent? - under what circumstances should this Court exercise jurisdiction Under Article 142 of the Constitution of India? - HELD THAT:- 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 [2017 (9) TMI 2031 - SUPREME COURT] and AMIT KUMAR VERSUS SUMAN BENIWAL [2021 (12) TMI 1507 - SUPREME COURT]. 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. 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 spouses opposing the prayer? - HELD THAT:- This question is also answered in the affirmative, inter alia, holding that 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. Transfer petitions disposed off. Issues Involved:1. Scope and extent of the Supreme Court's power under Article 142 of the Constitution of India.2. Whether the Supreme Court can waive or reduce the mandatory period under Section 13-B of the Hindu Marriage Act for divorce by mutual consent.3. Whether the Supreme Court can grant divorce on the ground of irretrievable breakdown of marriage despite opposition from one spouse.Issue-wise Detailed Analysis:1. Scope and Extent of Power under Article 142:The judgment elaborates on the Supreme Court's power under Article 142(1) of the Constitution, which allows the Court to pass any decree or order necessary for doing complete justice in any cause or matter pending before it. This power is unique and not limited by statutory provisions, allowing the Court to address gaps in the law and ensure equitable solutions. The judgment emphasizes that while the power is broad, it must be exercised with caution and restraint, considering fundamental public policy and constitutional principles. The Court's power under Article 142 is distinct from the inherent powers of civil and criminal courts and is meant to be used to achieve complete justice without being constrained by procedural laws.2. Waiver of Mandatory Period under Section 13-B of the Hindu Marriage Act:The judgment discusses whether the Supreme Court can waive the six-month waiting period required under Section 13-B(2) of the Hindu Marriage Act for divorce by mutual consent. It affirms that the Court can exercise its power under Article 142 to waive this period in exceptional cases where the statutory conditions for divorce are met, and the Court is convinced that the marriage has irretrievably broken down. The judgment references the decision in Amardeep Singh v. Harveen Kaur, which held that the waiting period is directory and can be waived in cases of prolonged separation and pending litigation. The Court can dispense with the procedural requirement to move the second motion, provided the substantive conditions for divorce are fulfilled.3. Grant of Divorce on the Ground of Irretrievable Breakdown of Marriage:The judgment addresses whether the Supreme Court can grant a decree of divorce on the ground of irretrievable breakdown of marriage, even if one spouse opposes it. It concludes that the Court has the discretion to dissolve a marriage under Article 142 when it is satisfied that the marriage is completely unworkable and beyond repair. The judgment emphasizes that this power should be exercised with care, considering factors such as the duration of separation, attempts at reconciliation, and the impact on the parties involved. The Court must be convinced that the marriage is emotionally dead and that continuation of the legal relationship is unjustified. This discretionary power is meant to do complete justice and is not a matter of right but is exercised in exceptional circumstances.Conclusion:The judgment concludes by affirming the Supreme Court's power under Article 142 to dissolve marriages in cases of irretrievable breakdown and to waive the mandatory waiting period for divorce by mutual consent. It emphasizes the need for careful exercise of this power to ensure complete justice, considering the specific facts and circumstances of each case. The Court's role as a court of equity allows it to balance the interests of the parties and address the complexities of matrimonial disputes.