Can the Supreme Court End a Dead Marriage?

This was not a routine divorce appeal. Shilpa Sailesh and Varun Sreenivasan came to the Supreme Court through Transfer Petition (Civil) No. 1118 of 2014. It sought the transfer of a matrimonial case pending before the Family Court in Pune to the Family Court in Ernakulam, Kerala. Other civil and criminal transfer petitions were tagged with it.

A two-judge Bench, by an order dated 06.04.2015, issued notice to the Attorney General for India. By its order dated 06.05.2015, it dissolved the couple's marriage by mutual consent under Article 142(1). It then kept the petition pending for statistical purposes, because conflicting Supreme Court decisions on this power needed a clear answer. Another two-judge Bench, by an order dated 29.06.2016, referred the questions to a Constitution Bench. That Bench added one more question: what if the marriage has irretrievably broken down but one spouse does not consent?

The judgment does not recount the couple's personal grievances. The real fight was legal. On one side was the idea of a fast, final decree. On the other were older rulings that had refused or doubted such relief. Those included Manish Goel, Neelam Kumar, Darshan Gupta, Hitesh Bhatnagar and Savitri Pandey, all of which this Bench read down.

There was also a long-running question about the six-month period in Section 13-B(2). Anjana Kishore v. Puneet Kishore and Manish Goel v. Rohini Goel had expressed the view that the Supreme Court cannot reduce or waive that period. In an order dated 12.05.2010 in Neeti Malviya v. Rakesh Malviya, a two-judge bench doubted that view and referred the question to a three-judge bench. The question was never decided there, because that couple dissolved their marriage by mutual consent.

The couple's case became the vehicle for deciding whether the Supreme Court could cut through matrimonial multiplicity. That meant quashing connected proceedings and closing out a dead marriage without making spouses run from court to court.

Section 13-B of the Hindu Marriage Act, 1955 allows divorce by mutual consent after the spouses have lived separately for one year or more, have not been able to live together, and have mutually agreed to dissolve the marriage. Sub-section (2) requires the second motion not earlier than six months, and not later than eighteen months, after the first petition. The judgment records that irretrievable breakdown is not a ground for divorce under the Act, and Section 13(1)(i-a) still speaks the language of cruelty and fault.

This is where searches such as "Supreme Court judgment on desertion and cruelty" or "cruelty by wife" can mislead a worried spouse. Section 13(1)(i-a) is the cruelty ground, and the one-year separation and six-month cooling-off period are written into Section 13-B. But Amardeep Singh v. Harveen Kaur had already held that the six-month period can be waived in exceptional situations. Shilpa Sailesh went further: the Supreme Court can use Article 142(1) to dissolve the marriage on settlement without being bound by the second-motion procedure.

The Bench also accepted the view in Poonam v. Sumit Tanwar that a party cannot file a writ petition for divorce. But it clarified that Poonam's reference to Manish Goel, and the observation that it is questionable whether the period of six months for moving the second motion can be waived, has not been approved.

Anyone hoping for "no-fault divorce in India" should read this carefully. The ruling gives the Supreme Court a constitutional discretion to dilute the fault theory in "rare and exceptional" cases. The judgment itself records that irretrievable breakdown is not a ground under the Hindu Marriage Act. The power it describes belongs to the Supreme Court under Article 142(1).

The Bench treated Article 142(1) as a power to do "complete justice" in a "cause or matter", not as a licence to ignore the law whenever a litigant dislikes a procedure. It held that the 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 its discretion, the Court must consider the substantive provisions as enacted and not ignore them.

On a contested divorce, the Bench held:

Two obstacles were removed by that holding:

• The argument that fault and blame under Section 13(1)(i-a) always control the case no longer binds the Supreme Court in a rare and exceptional matter. The Bench held that the power to do complete justice "is not fettered by the doctrine of fault and blame".
• The argument that the Court cannot deal with connected cases while dissolving a marriage no longer survives where the settlement is genuine. The Court can set aside and quash other proceedings and orders, including criminal cases and First Information Reports, if the conditions in the earlier judgments are satisfied.

The Court did not say every unhappy marriage can be ended at once. It said the power must be used with great care and caution, on facts that firmly establish the breakdown. It must also weigh custody, alimony, the welfare of children and the position of the spouse who opposes.

• Know the facts the Court weighs. The judgment looks at how long the spouses cohabited after marriage, when they last lived together, the allegations each side made, and the orders passed in the legal proceedings from time to time. It also looks at how many attempts were made to settle the dispute through the court or mediation, and when the last attempt was made. The orders in each pending case and any mediation record are therefore the natural papers to have ready.
• Prepare the money and children paperwork. The Court considers the economic and social status of the spouses, their education, whether children or the other spouse are dependent, and how the spouse seeking divorce intends to provide for them. Custody and welfare of minor children, fair and adequate alimony for the wife, and the economic rights of the children are all relevant considerations.
• Use the right forum. This power belongs to the Supreme Court and is exercised in a "cause or matter" already before it, such as a transfer petition or other pending proceeding. The Bench said the remedy of a person aggrieved by the decision of a competent judicial forum is to approach the superior tribunal/forum. For a settled divorce, the Court only has to ensure that the settlement is reached without pressure, force, coercion, fraud, misrepresentation or undue influence.
• Avoid the biggest mistake. Do not file a writ petition under Article 32 or Article 226 for divorce on the ground of irretrievable breakdown. The Bench accepted the view in Poonam v. Sumit Tanwar and closed that route. Do not treat this ruling as an automatic exit either: the breakdown must be factually determined and firmly established.