2023 Supreme(SC) 447

SUPREME COURT OF INDIA
SANJAY KISHAN KAUL, SANJIV KHANNA, ABHAY S. OKA, VIKRAM NATH, J.K. MAHESHWARI, JJ.
Shilpa Sailesh - Petitioner
Versus
Varun Sreenivasan - Respondent
Transfer Petition (Civil) No. 1118 of 2014 With Transfer Petition (Criminal) No. 96 of 2014, Transfer Petition (Criminal) No. 339 of 2014, Transfer Petition (Criminal) No. 382 of 2014, Transfer Petition (Criminal) No. 468 of 2014 And Transfer Petition (Civil) Nos. 1481-1482 of 2014
Decided On : 01-05-2023

IMPORTANT POINTS
(1) Divorce by mutual consent – Supreme Court, in view of settlement between parties, has discretion to dissolve marriage by passing a decree of divorce by mutual consent, without being bound by procedural requirement to move second motion.
(2) Supreme Court, in exercise of power under Article 142(1) of Constitution of India, has discretion to dissolve marriage on the ground of its irretrievable breakdown – This discretionary power is to be exercised to do ‘complete justice’ to parties.
(3) A party cannot file a writ petition under Article 32 of the Constitution of India and seek relief of dissolution of marriage directly from Supreme Court.

Headnote:

(A) Hindu Marriage Act, 1955 – Section 13-B(2) – Constitution of India – Article 142(1) – Divorce by Mutual consent – Waiver of statutory period for moving second motion – There are cases of exceptional hardship where after some years of acrimonious litigation and prolonged suffering, parties, with a view to have a fresh start, jointly pray to court to dissolve marriage and seek waiver of need to move second motion – On account of irreconcilable differences, allegations and aspersions made against each other and family members and in some cases multiple litigations including criminal cases, continuation of marital relationship is an impossibility – Divorce is inevitable and cooling off period of six months, if at all, breeds misery and pain, without any gain and benefit – Object of cooling-off period is not to stretch already disintegrated marriage or to prolong agony and misery of parties when there are no chances of marriage working out – Once every effort has been made to salvage marriage and there remains no possibility of reunion and cohabitation, court is not powerless in enabling parties to avail a better option which is to grant divorce – Waiver is not to be given on mere asking, but on court being satisfied beyond doubt that marriage has shattered beyond repair. (Paras 16 and 17)

(B) Hindu Marriage Act, 1955 – Section 13-B(2) – Constitution of India – Articles 136 and 142(1) – Divorce by Mutual consent in dead marriages – Waiver of statutory period for moving second motion – Exercise of jurisdiction under Article 142(1) of Constitution of India by this Court in such cases is clearly permissible to do ‘complete justice’ to a ‘cause or matter’ – Power of this Court under Articles 136 and 142(1) of Constitution of India will certainly embrace and enswathe this power to do ‘complete justice’, even when main case/proceeding is pending before Family Court, trial court or another judicial forum – Question or issue of lack of subject-matter jurisdiction does not arise – In such cases, parties have to move separate applications in multiple courts – Parallely, parties have to bear cost, appear before several forums/courts and final orders get delayed causing anxiety and apprehension – In this sense, when this Court exercises power under Article 142(1) of Constitution of India, it assists and aids cause of justice – However, 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 power to pass a decree of divorce by mutual consent exists and can be exercised by this Court under Article 142(1) of Constitution of India, when and in which of cases 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 power – This discretion has to be exercised on the basis of factual matrix in the particular case, evaluated on objective criteria and factors, without ignoring objective of statutory provisions – Courts must not encourage matrimonial litigation and prolongation of such litigation is detrimental to both parties who lose their young age in chasing multiple litigations – Adopting a hyper-technical view can be counter-productive as pendency itself causes pain, suffering and harassment. (Paras 19, 20 and 22)

(C) Constitution of India – Article 142 – Power to do complete justice – Article 142(1) of Constitution of India, which gives wide and capacious power to Supreme Court to do ‘complete justice’ in any ‘cause or matter’ is significant as Judgment delivered by this Court ends litigation between parties – Given expansive amplitude of power under Article 142(1) of Constitution of India, exercise of power must be legitimate and clamours for caution, mindful of danger that arises from adopting an individualistic approach as to exercise of Constitutional power – Article 142(1) of Constitution of India turns maxim ‘equity follows law’ on its head, as this Article in Constitution of India gives legal authority to this Court to give precedence to equity over law – This power, like all powers under Constitution of India, must be contained and regulated as relief based on equity should not disregard substantive mandate of law based on underlying fundamental general and specific issues of public policy. (Paras 8 and 9)

(D) Constitution of India – Article 142 – Power to do complete justice – Constitutional power conferred by Article 142(1) of Constitution of India on this Court is not a replication of inherent power vested with civil court under C.P.C., and High Court under Cr.P.C. – Exercise of power under Article 142(1) of 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 equities between conflicting claims of 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 dispute in a cause or matter – While this Court cannot supplant 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 nebulous areas – As long as ‘complete justice’ required by ‘cause or matter’ is achieved without violating fundamental principles of general or specific public policy, exercise of power and discretion under Article 142(1) is valid and as per Constitution of India – Fact that power is conferred only on this Court is an assurance that it will be used with due restraint and circumspection. (Paras 12 and 13)

(E) Hindu Marriage Act, 1955 – Section 13(1)(i-a) read with Section 23 (1) – Constitution of India – Article 142(1) – Grant of divorce – Irretrievable breakdown of marriage – Court should not philosophise on modalities of married life – Whether charge is proved or not cannot be decided by applying principle of whether a reasonable man situated similarly will behave in a similar manner – What may be cruel to one may not matter to another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances – Cruelty is subjective, it is person, background, and circumstance specific – There is a distinction between intention to commit cruelty and actual act of cruelty, as absence of intention may not, in a given case, make any difference if act complained of is otherwise regarded as cruel – Deliberate and wilful intention may not matter – No spouse can be compelled to resume life with a consort and as such nothing is gained by keeping parties tied forever to a marriage which has, in fact, ceased to exist. (Paras 25, 26, 28 and 40)

(F) Hindu Marriage Act, 1955 – Section 13(1)(i-a) read with Section 23 (1) – Constitution of India – Article 142(1) – Grant of divorce – Irretrievable breakdown of marriage – Power to do ‘complete justice’ is not fettered by doctrine of fault and blame, applicable to petitions for divorce under Section 13(1)(i-a) of Hindu Marriage Act – Supreme’s 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 – It would be in best interest of all including individuals involved, to give legality in form of formal divorce to a dead marriage – 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 self-imposed restraint applicable when this Court exercises power under Article 142(1) of Constitution of India – 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 – This Court should be fully convinced and satisfied that marriage is totally unworkable, emotionally dead and beyond salvation and dissolution of marriage is right solution and only way forward – That marriage has irretrievably broken down is to be factually determined and firmly established – For this, several factors are to be considered such as period of time parties had cohabited after marriage; when parties had last cohabited; nature of allegations made by parties against each other and their family members; orders passed in legal proceedings from time to time, cumulative impact on personal relationship; whether, and how many attempts were made to settle disputes by intervention of court or through mediation, and when last attempt was made, etc. – 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 economic and social status of parties including their educational qualifications, whether parties have any children, their age, educational qualification, and whether other spouse and children are dependent, in which event how and in what manner party seeking divorce intends to take care and provide for spouse or children – Question of custody and welfare of minor children, provision for fair and adequate alimony for wife and economic rights of children and other pending matters, are relevant considerations. (Paras 30, 33, 40 and 42)

(G) Constitution of India – Article 32/226 – Grant of divorce – Irretrievable breakdown of marriage – Remedy of a person aggrieved by decision of competent judicial forum is to approach superior tribunal/forum for redressal of his/her grievance – Parties should not be permitted to circumvent procedure by resorting to writ jurisdiction under Article 32 or 226 of Constitution of India – Judicial orders passed by court in or in relation to proceedings pending before it, are not amenable to correction under Article 32 of Constitution of India – A party cannot file a writ petition under Article 32 of Constitution of India and seek relief of dissolution of marriage directly from Supreme Court. (Paras 41 and 42)

Facts of the case:

Point in issue is “Whether 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 Constitution?”

Findings of Court:

Transfer Petition (Civil) No. 1118 of 2014, Transfer Petition (Criminal) No. 382 of 2014, Transfer Petition (Criminal) No. 468 of 2014, and Transfer Petition (Civil) Nos. 1481-1482 of 2014 are disposed of, as vide order dated 06.05.2015, a division bench of this Court has already dissolved marriage between the parties by invoking Article 142(1) of the Constitution of India.

Result : Reference answered.