NDLI: Shilpa Sailesh Vs. Varun Sreenivasan

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	Constitution of India – Art. 142 – Scope and ambit of – Held: The power u/Art. 142(1) is undefined and uncatalogued
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Indian Penal Code (45 of 1860) Constitution of India, Hindu Marriage Act, 1955 (25 of 1955) Protection of Women from Domestic Violence Act, 2005 (43 of 2005) Code of Criminal Procedure, 1973 (2 of 1974)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 Referred Case 5 Referred Case 6 Referred Case 7 Referred Case 8 Referred Case 9 Referred Case 10 Referred Case 11 Referred Case 12 Referred Case 13 Referred Case 14 Referred Case 15 Referred Case 16 Referred Case 17 Referred Case 18 Referred Case 19 Referred Case 20 Referred Case 21 Referred Case 22 Referred Case 23 Referred Case 24
Case Type	Transfer Petition
Court	Supreme Court of India
Disposal Nature	Others
Headnote	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. 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 his grievance – Relief u/Art. 32 can be sought to enforce the rights conferred by Part III of the Constitution of India, and on the proof of infringement thereof – Judicial orders passed by the court in, or in relation to, the proceedings pending before it, are not amenable to correction u/Art. 32 of the Constitution of India – The view regarding the same in Poonam v. Sumit Tanwar is accepted. Judgment/Order – Clarification – Held: It is clarified that reference in Poonam v. Sumit Tanwar 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.
Judge	Hon'ble Mr. Justice Sanjiv Khanna
Neutral Citation	2023 INSC 468
Petitioner	Shilpa Sailesh
Respondent	Varun Sreenivasan
SCR	[2023] 5 S.C.R. 165
Judgement Date	2023-05-01
Case Number	1118

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