SHILPA SAILESH v. VARUN SREENIVASAN

Act, and Section 9 of the Family Courts Act, 1984. Given that there are multiple legislations governing different aspects, even if the cause of dispute is identical or similar, most matrimonial disputes lead to a miscellany of cases including criminal cases, at times genuine, and on other occasions initiated because of indignation, hurt, anger or even misguided advice to teach a lesson. The multiplicity of litigations can restrict and block solutions, as a settlement has to be holistic and comprehensive, given that the objective and purpose is to enable the parties to cohabit and live together, or if they decide to part ways, to have a new beginning and settle down to live peacefully. The courts must not encourage matrimonial litigation, and prolongation of such litigation is detrimental to both the parties who lose their young age in chasing multiple litigations. Thus, adopting a hyper-technical view can be counter-productive as pendency itself causes pain, suffering and harassment and, consequently, it is the duty of the court to ensure that matrimonial matters are amicably resolved, thereby bringing the agony, affliction, and torment to an end. In this regard, the courts only have to enquire and ensure that the settlement between the parties is achieved without pressure, force, coercion, fraud, misrepresentation, or undue influence, and that the consent is indeed sought by free will and choice, and the autonomy of the parties is not compromised. In view of the above legal position and discussion, Supreme Court, on the basis of settlement between the parties, while passing a decree of divorce by mutual consent, can set aside and quash other proceedings and orders, including criminal cases and First Information Report(s), provided the conditions, as specified in the various judgments, are satisfied. [Para 22][197-B-D; 198-A, D]

This Court, in view of settlement between the parties, 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 and Amit Kumar. This Court can also, in exercise of power under Article 142(1) of the Constitution of India, quash and set aside other proceedings and orders, including criminal proceedings. [Para 42][213-C-D] A B C D E F G H SHILPA SAILESH v. VARUN SREENIVASAN 171 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.

This Court would not read the provisions of the Hindu Marriage Act, their underlying intent, and any fundamental specific issue of public policy, as barring this Court from dissolving a broken and shattered marriage in exercise of the Constitutional power under Article 142(1) of the Constitution of India. If at all, the underlying fundamental issues of public policy, as explained in the judgments of V. Bhagat, Ashok Hurra, and Naveen Kohli, support the view that it would be in the best interest of all, including the individuals involved, to give legality, in the form of formal divorce, to a dead marriage, otherwise the litigation(s), resultant sufferance, misery and torment shall continue. Therefore, apportioning blame and greater fault may not be the rule to resolve and adjudicate the dispute in rare and exceptional matrimonial cases, as the rules of evidence under the Evidence Act are rules of procedure. When the life-like situation is known indubitably, the essence and objective behind section 13(1)(i-a) of the Hindu Marriage Act that no spouse should be subjected to mental cruelty and live in misery and pain is established. These rules of procedure must give way to ‘complete justice’ in a ‘cause or matter’. Fault theory can be diluted by this Court to do ‘complete justice’ in a particular case, without breaching the self- imposed restraint applicable when this Court exercises power under Article 142(1) of the Constitution of India. [Para 30][205- C-F]

It is clearly stated that grant of divorce on the ground of irretrievable breakdown of marriage by this Court is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that ‘complete justice’ is done to both parties. It is obvious that this 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. That the marriage has irretrievably broken down is to be factually determined and firmly established. For this, A B C D E F G H 172 SUPREME COURT REPORTS [2023] 5 S.C.R. 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. But these facts have to be evaluated keeping in view the economic and social status of the parties, including their educational qualifications, whether the parties have any children, their age, educational qualification, and whether the other spouse and children are dependent, in which event how and in what manner the party seeking divorce intends to take care and provide for the spouse or the children. Question of custody and welfare of minor children, provision for fair and adequate alimony for the wife, and economic rights of the children and other pending matters, if any, are relevant considerations. This Court would not like to codify the factors so as to curtail exercise of jurisdiction under Article 142(1) of the Constitution of India, which is situation specific. Some of the factors mentioned can be taken as illustrative, and worthy of consideration. [Para 33][207-C-G; 208-A]

This Court, in exercise of power under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be exercised to do ‘complete justice’ to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. The 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. [Para 42][213-F-G]

This Court is of the opinion that the decisions of this Court in Manish Goel , Neelam Kumar , Darshan Gupta , Hitesh A B C D E F G H SHILPA SAILESH v. VARUN SREENIVASAN 173 Bhatnagar, Savitri Pandey and others have to be read down in the context of the power of this Court given by the Constitution of India to do ‘complete justice’ in exercise of the jurisdiction under Article 142(1) of the Constitution of India. In consonance with our findings on the scope and ambit of the power under Article 142(1) of the Constitution of India, in the context of matrimonial disputes arising out of the Hindu Marriage Act, this Court hold that the power to do ‘complete justice’ is not fettered by the doctrine of fault and blame, applicable to petitions for divorce under Section 13(1)(i-a) of the Hindu Marriage Act. As held above, this Court’s power to dissolve marriage on settlement by passing a decree of divorce by mutual consent, as well as quash and set aside other proceedings, including criminal proceedings, remains and can be exercised. [Para 40][211-B-D]

Lastly, this Court must express its opinion on whether a party can directly canvass before this Court the ground of irretrievable breakdown by filing a writ petition under Article 32 of the Constitution. In Poonam v. Sumit Tanwar, a two judges’ bench of this Court has rightly held that any such attempt must be spurned and not accepted, as the parties should not be permitted to file a writ petition under Article 32 of the Constitution of India, or for that matter under Article 226 of the Constitution of India before the High Court, and seek divorce on the ground of irretrievable breakdown of marriage. The reason is that the remedy of a person aggrieved by the decision of the competent judicial forum is to approach the superior tribunal/forum for redressal of his/her grievance. The parties should not be permitted to circumvent the procedure by resorting to the writ jurisdiction under Article 32 or 226 of the Constitution of India, as the case may be. Secondly, and more importantly, relief under Article 32 of the Constitution of India 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 under Article 32 of the Constitution of India. Therefore, a party cannot file a writ petition under Article 32 of the Constitution of India and seek relief of dissolution of marriage directly from this Court. [Para 41][211- E-G; 212-A] A B C D E F G H 174 SUPREME COURT REPORTS [2023] 5 S.C.R. A B C D E F G H M. Siddiq (Dead) Through Legal Representatives (Ram Janmabhumi Temple Case) v. Mahant Suresh Das and Others (2020) 1 SCC 1 : [2019] 18 SCR 1; Prem Chand Garg and Another v. The Excise Commissioner, U.P. and Others AIR 1963 SC 996 : [1963] Suppl. SCR 885; Supreme Court Bar Association v. Union of India and Another (1998) 4 SCC 409 : [1998] 2 SCR 795 – followed.