CAUSETITLE:
Shilpa Sailesh Petitioner V Varun Sreenivasan
DATE OF ORDER:
01-05-2023
JUDGE(S):
SANJAY KISHAN KAUL, SANJIV KHANNA, ABHAY S.OKA, VIKRAM NATH, J.K. MAHESHWARI
SUBJECT
The Honourable Supreme Court, where it was discussed whether "irretrievable breakdown of marriage" could be a basis for the dissolution of marriage, even though it is not a statutorily recognized ground, and whether the six-month cooling-off period could be waived under the powers granted under Article 142 of the Indian Constitution?
The Supreme Court's two-judge panel had earlier heard the case, discussed it in numerous decisions, and reached a decision in which it expressed the opinion that it could not waive or shorten the six-month timeframe while exercising its authority under Article 142 of the Indian Constitution.
ISSUES OF THE CASE:
Some of the issues raised in the aforementioned case include the following:
1. What is the scope and extent of the supreme court's authority to rule on the issue under Article 142 of the Constitution, and may the court waive or shorten the six-month cooling-off period required by Section 13-B(2) of the Hindu Marriage Act?
2. Whether "Irretrievable breakdown of marriage," which is not statutorily recognized by the Hindu Marriage Act, can be a basis for divorce, and whether the Supreme Court has the authority to rule on the issue under Article 142 of the Indian Constitution.
3. The Supreme Court's ability to award a divorce under Article 142(1) of the Indian Constitution, even if one spouse objects, in situations when the marriage is wholly and irretrievably broken down, was the third point that was being debated in the case.
ARGUMENTS:
- Senior advocates who were appointed as amici curiae, in this case, provided a variety of recommendations 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. As a result, the court has the authority to rely on any rule that stands in the way of full justice, in this case, the act's designated cooling-off time.
- A contrarian viewpoint added that since Parliament has not acknowledged it as a reason for divorce, the court should not use its authority under Article 142. It was stated that the judiciary should only function in conformity with the legislation enacted by the legislature and should not cross any lines.
- Another viewpoint was that the retrievable breakdown 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 breakdown of the marriage, the court may award a divorce based on cruelty.
- It was asserted that the Supreme Court while exercising its extraordinary power under Article 142, is not constrained by statutory law and is free to act by justice, equity, and good conscience. This means that the Court may nevertheless award divorce if it is required for justice, even though there is no clear legal provision for the irretrievable breakdown of a marriage.
- The Honourable Supreme Court has discussed all of these suggestions and taken into account the subject of the irretrievable breakdown of marriage from a variety of perspectives.
ANALYSIS OF COURT
According to Article 142(1) of the Indian Constitution, the court has the discretionary right to dissolve a marriage on the grounds of irretrievable collapse. This power must, however, be used with extreme care and attention.
The exercise of authority must be genuine and cries out for prudence, cognizant of the danger that arises from choosing an individualized attitude as to the exercise of the Constitution's power, given the vast amplitude of power under Article 142(1) of the Constitution of India.
The marriage must be proven to be emotionally dead, untenable, and hopeless to persuade the court. The length of the separation, the parties' social and economic circumstances, the well-being of young children, the availability of just and sufficient alimony, the children's economic rights, and other issues should all be taken into account by the court. The court made it clear that because these elements are situation-specific and are just meant to be examples, it does not seek to codify them. Giving a dead marriage legal status in the form of a formal divorce is in everyone's best interests, provided that:
If the court dealing with the case determines that there is sufficient justification to waive the statutory period under Section 13-B (2), it may do so after taking the following into account:(i) before the first motion itself, the six-month waiting period outlined in Section 13-B(2) and the one-year waiting period outlined in Section 13-B(1) of the separation of parties have already passed.
ii) All attempts at mediation or conciliation, including those made by Order 32-A Rule 3 CPC, Section 23(2) of the Act, and Section 9 of the Family Courts Act to bring the parties back together, have been unsuccessful, and there is no chance that any future attempts will succeed;
(iii) Any outstanding disputes between the parties, such as those involving alimony, child custody, or other matters, have been honestly resolved;
(iv) The waiting time will only make their suffering worse. One week following the initial motion outlining the grounds for the waiver request, the waiver application may be submitted. The waiver of the waiting period for the second motion will be at the court's discretion if the aforementioned requirements are met.
The bench further decided that, according to the prerequisites and conditions outlined above, which may vary from case to case, it is possible to waive the six-month waiting time that is required for divorce by mutual consent. This means that, as long as the aforementioned requirements are met, couples who want to get a divorce by mutual consent can do so right away without having to wait through the required waiting time
Click here to download the original copy of the judgement
