SHILPA SAILESH VS VARUN SREENIVASAN : CASE SUMMARY

The Constitution Bench of the Supreme Court  was considering following three issues in Shilpa Shailesh Vs Varun Sreenivasan ( 2023) 5SCR165.  

(1) The Scope and ambit of power and jurisdiction of this Court under Article 142 (1) of the Constitution of India

(2) Secondly, in view of, and depending upon the findings of this bench on the first question, whether this Court while hearing a transfer petition, or in any other proceedings, can exercise power under Article 142 (1) of the Constitution of India, in view of the settlement between the parties, and grant a decree of divorce by mutual consent dispensing with the period and the procedure prescribed under Section 13B of the Hindu Marriage Act and also quash and dispose of other/connected proceedings under the Protection of Women from Domestic Violence Act, 2005, Section 125 of the Code of Criminal Procedure, 1973,  or criminal prosecution primarily under Section 498 A and other provisions of the Indian Penal Code, 1860. If answer to this question is in affirmative, in which cases and under what circumstances should this court exercise jurisdiction under Article 142 (1) of the Constitution of India is an ancillary issue to be decided

(3) The third issue, which is of considerable importance, is 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 spouse opposing the prayer.

SCOPE OF ARTICLE 142 (1)

Article 142 (1) provides that the Supreme Court in its jurisdiction can pass such decree or order as is necessary for doing complete justice in a cause or matter pending before it and any decree so passed or order so made is enforceable all over India.

Article 142 (1) provides extensive powers to the Supreme Court. Such power is lacking in other jurisdiction to the Apex Courts. Such power has been inspired from justice, equity and good conscience. It has been held that the maxim “ equity follows the law” has been turned on its head under Article 142 (1).

The Supreme Court held that it 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 Supreme 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.

POWER UNDER ARTICLE 142(1) & DIVORCE BY MUTUAL CONSENT

The Supreme Court has power under Article 142 (1) to dissolve marriage by passing a decree of divorce by mutual consent on the basis  of settlement between parties without being bound  by procedural requirement to move the second petition. The power has to exercised with care and caution keeping in mind finding of  the Supreme Court in Amardeep Singh and Amit Kumar. The Supreme Court can also quash other proceedings pending between the parties under Article 142 (1).

POWER UNDER ARTICLE 142(1) AND IRRETRIEVALBE BREAKDOWN OF MARRIAGE

The Supreme Court held that it can use its power under Article 142 (1) for dissolving marriage in case of irretrievable breakdown of marriage, if marriage has completely failed and there is no possibility that the parties will cohabit together and continuation of the formal legal relationship is unjustified.

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