SHILPA SAILESH versus VARUN SREENIVASAN

Citation: [2023] 5 S.C.R. 165 · Decided: 01-05-2023 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Reference answered

Cited by 15 judgment(s) · cites 23 · see the full citation network in Lexace

Judgment (excerpt)

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SHILPA SAILESH
v.
VARUN SREENIVASAN
(Transfer Petition (Civil) No. 1118 of 2014)
MAY 01, 2023
[SANJAY KISHAN KAUL, SANJIV KHANNA, ABHAY S.
OKA, VIKRAM NATH AND J.K. MAHESHWARI, JJ.]
Constitution of India – Art. 142 – Scope and ambit of – Held:
The power u/Art. 142(1) is undefined and uncatalogued, so as to
ensure elasticity to mould relief to suit a given situation – The Supreme
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, the Court must consider the
substantive provisions as enacted and not ignore the same, albeit
the 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’.
Constitution of India – Art. 142 – Hindu Marriage Act, 1955
– s.13-B – Grant of a decree of divorce by mutual consent – Whether
Supreme Court while hearing a transfer petition, or in any other
proceedings, can exercise power u/Art.142(1) to grant a decree of
divorce by mutual consent dispensing with the period and the
procedure prescribed u/s.13-B of the Act of 1956 and also quash
and dispose of other/connected proceedings and in which cases
and under what circumstances should Supreme Court exercise
jurisdiction u/Art. 142 – Held: In view of settlement between the
parties, the Supreme Court 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 case and Amit Kumar case
– This Court can also, in exercise of power u/Art. 142(1) can also
quash and set aside other proceedings and orders, including criminal
proceedings.
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SUPREME COURT REPORTS
[2023] 5 S.C.R.
Constitution of India – Art. 142 – Grant of divorce in case of
irretrievable breakdown of marriage – Whether Supreme Court can
grant divorce in exercise of power under Article 142(1), when there
is complete and irretrievable breakdown of marriage in spite of the
other spouses opposing the prayer – Held: The Court in exercise of
power under Art.142(1), has the discretion to dissolve the marriage
on the ground of its irretrievable breakdown – The Court’s
discretionary power is to be exercised to do ‘complete justice’ to the
parties – The Court should be fully convinced and satisfied that the
marriage is totally unworkable, emotionally dead and beyond
salvation and, therefore, dissolution of marriage is the right solution
and the only way forward – The Supreme 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.
Hindu Marriage Act, 1955 – Irretrievable breakdown of
marriage – Determination of – Held: That the marriage has
irretrievably broken down is to be factually determined and firmly
established – For this, several factors are to be considered such as
the period of time the parties had cohabited after marriage; when
the parties had last cohabited; the nature of allegations made by
the parties against each other and their family members; the orders
passed in the legal proceedings from time to time, cumulative impact
on the personal relationship; whether, and how many attempts were
made to settle the disputes by intervention of the court or through
mediation, and when the last attempt was made, etc. – The period of
separation should be sufficiently long, and anything above six years
or more will be a relevant factor – Question of custody and welfare
of minor children are also to be considered – Some of the factors
mentioned can be taken as illustrative, and worthy of consideration
– The factors are not codified – The exercise of jurisdiction u/Art.
142(1) is situation specific.
Constitution of India – Art.32 – Whether a party can directly
canvass before the Supreme Court on the ground of irretrievable
breakdown, by filing a writ petition under Art. 32 of the Constitution
– Held: The parties should not be permitted to circumvent the
procedure by resorting to the writ jurisdiction u/Art. 32 or 226 –
The remedy of a person aggrieved by the decision of the competent
judicial forum is to approach the superior forum for redressal of
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his grieva

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