A Constitution Bench of the Supreme Court of India in Shilpa Sailesh v. Varun Sreenivasan held that the apex court can exercise its plenary powers under Article 142(1) of the Constitution of India to grant a decree of divorce on the ground of irretrievable breakdown of marriage. The Court clarified that it can waive the mandatory six-month waiting period prescribed under Section 13-B(2) of the Hindu Marriage Act, 1955 (HMA) directly, bypassing the need for parties to go through tedious litigation in trial courts when a marriage is dead beyond repair.
Court: Supreme Court of India (Five-Judge Constitution Bench)
Bench: Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice A.S. Oka, Justice Vikram Nath, and Justice J.K. Maheshwari
Date of Decision: May 1, 2023
Subject Area: Constitutional Law (Article 142) | Hindu Marriage Act, 1955 (Section 13-B) | Irretrievable Breakdown of Marriage | Waiver of Cooling-Off Period
Key Legal Principles Established by the Constitution Bench
1. Article 142 Powers Not Restricted by Statutory Rules
- The Supreme Court’s constitutional jurisdiction under Article 142(1) to pass any order necessary for doing “complete justice” is not fettered by procedural requirements or statutory bars under ordinary legislation like the Hindu Marriage Act, 1955.
- The Court can dissolve a marriage directly without sending the parties back to the Family Court to wait out statutory timelines.
2. Irretrievable Breakdown as a Ground for Dissolution
- While “irretrievable breakdown of marriage” is not an explicit statutory ground for divorce under Section 13 of the HMA, the Supreme Court can grant divorce on this ground under Article 142 when a marriage has become a “dead marriage” in fact and substance.
- The Fault Theory of divorce (which requires proving cruelty, desertion, adultery, etc.) can be bypassed when the relationship is completely unsalvageable.
3. Waiver of the 6-Month Cooling-Off Period (Section 13-B HMA)
- The 6-month waiting/cooling-off period between the First and Second Motion under Section 13-B(2) of the HMA for mutual consent divorce can be waived by the Supreme Court if all attempts at mediation/reconciliation have failed and further waiting will only prolong suffering.
Objective Factors for Assessing Irretrievable Breakdown
The Constitution Bench laid down mandatory illustrative factors to evaluate whether a marriage has broken down irretrievably:
| Objective Factor | Evaluation Standard |
| Duration of Cohabitation | The length of time the parties actually lived together after marriage before separating. |
| Period of Separation | The total duration of continuous separation; a period of 6 years or more is considered a strong primary indicator. |
| Nature of Allegations | The severity and cumulative impact of criminal cases, complaints, and allegations made against each other and their families. |
| Attempts at Settlement | Number and timing of failed mediation sessions or court-assisted reconciliation attempts. |
| Court Orders’ Impact | Whether interim litigation orders have created irreversible bitterness between the parties. |
Case Facts & Procedural Journey
- Background & Separation: The parties were embroiled in matrimonial disputes involving criminal complaints under Section 125 CrPC and the Domestic Violence Act. They had lived continuously apart for over 6 years with no cohabitation or reconciliation.
- Failure of Alternative Remedies: Proceedings before the Trial Court and High Court dragged on without achieving resolution, creating an indefinite deadlock between the parties.
- Reference to Constitution Bench: The matter was referred to a 5-Judge Bench to clarify whether the Supreme Court’s powers under Article 142 can be used to dissolve marriages without adhering to the statutory waiting periods and grounds prescribed under the Hindu Marriage Act.
- Supreme Court Verdict: The 5-Judge Bench answered in the affirmative, holding that Article 142 can be invoked to grant divorce on irretrievable breakdown and waive procedural waiting periods to prevent public time and private lives from being wasted in dead marriages.
Important Limitation
Note: The Supreme Court explicitly clarified that the power to grant a divorce on the ground of irretrievable breakdown of marriage under Article 142 is exclusive to the Supreme Court of India. High Courts (under Article 226) and Family Courts do not possess this inherent constitutional discretion and must remain bound by the explicit statutory grounds under Section 13/13-B of the Hindu Marriage Act.