The Supreme Court has recently held that once every effort has been made to save the marriage and there remains no possibility of reunion and cohabitation, the court is not powerless in enabling the parties to avail a better option, which is to grant a divorce on the ground of irretrievable breakdown of marriage.

However, the waiver is not to be given on mere asking, but on the court being satisfied beyond doubt that the marriage has shattered beyond repair, added the Apex Court.

The Constitution Bench of Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice Abhay S. Oka, Justice Vikram Nath, and Justice J.K Maheshwari observed that "this Court, in exercise of power under Article 142(1) of the Constitution of India, can grant a decree of divorce when, upon the prayer of one of the spouses, it is satisfied that there is complete and irretrievable breakdown of marriage".

"Section 13-B of the Hindu Marriage Act does not impose any fetters on the powers of this Court to grant a decree of divorce by mutual consent on a joint application, when the substantive conditions of the Section are fulfilled," added the Bench.

Senior Advocates Indira Jaising, V. Giri, Meenakshi Arora, and Dushyant Dave appeared for the Petitioner while Senior Advocate Jay Savla appeared for the Respondent before the Court.

Going by the background of the case, the issue before the Constitution Bench arose primarily from the order passed in Neeti Malviya v. Rakesh Malviya [T.P. (C) No. 899 of 2007], wherein a Two Judge bench had doubted the view expressed in case of Anjana Kishore v. Puneet Kishore [(2002) 10 SCC 194] and case of Manish Goel v. Rohini Goel [(2010) 4 SCC 393], that the Court, in exercise of the power under Article 142 of the Constitution of India, cannot reduce or waive the period of six months for moving the second motion as stipulated in sub-section (2) to Section 13-B of the Hindu Marriage Act, 1956.

Noticing that the Apex Court, some High Courts, and even family courts in some States had been dispensing with or reducing the period of six months for moving the second motion when there was no possibility whatsoever of the spouses cohabiting, a question as to whether the period prescribed in sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955 can be waived or reduced by the Court in the exercise of its jurisdiction under Article 142 of the Constitution, stood referred to a three judges’ bench for a clear ruling and future guidance.

After considering the submissions, the Constitution Bench opined that the Court is not a forum of restricted jurisdiction when it decides and settles the dispute in a ‘cause or matter’.

The Constitution Bench elaborated that while the Court cannot supplant the substantive law by building a new edifice where none existed earlier, or by ignoring express substantive statutory law provisions, it is a problem-solver in the nebulous areas.

"As long as ‘complete justice’ required by the ‘cause or matter’ is achieved without violating fundamental principles of general or specific public policy, the exercise of the power and discretion under Article 142(1) is valid..." added the Bench.

The Apex Court elaborated that the object of the cooling-off period is not to stretch the already disintegrated marriage, or to prolong the agony and misery of the parties when there are no chances of the marriage working out.

Therefore, even when the power to pass a decree of divorce by mutual consent exists and can be exercised by this Court under Article 142(1) of the Constitution of India, when and in which of the cases the power should be exercised to do ‘complete justice’ in a ‘cause or matter’ is an issue that has to be determined independent of existence of the power. This discretion has to be exercised on the basis of the factual matrix in the particular case, evaluated on objective criteria and factors, without ignoring the objective of the statutory provisions”, added the Court.

Thus, the Constitution Bench, therefore, concluded that the Court, while hearing a transfer petition, or in any other proceedings, can exercise power under Article 142(1) of the Constitution, 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 13-B of the Hindu Marriage Act and accordingly disposed of the Transfer Petitions.

Cause Title: Shilpa Sailesh v. Varun Sreenivasan

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