The Case Of Shilpa Sailesh V. Varun Sreenivasan: Resolving The Dichotomy On Apex Court’s Power

The Case Of Shilpa Sailesh V. Varun Sreenivasan: Resolving The Dichotomy On Apex Court’s Power To Curtail Cooling-Off Period While Granting Divorce Under Article 142 Of The Indian Constitution

Rupakshi Sharma & Anand Singh Pal, Symbiosis Law School, Pune, Symbiosis International (Deemed) University, Pune, Maharashtra, India

On the fateful day of May 1, 2023, the Apex Court in the Transfer Petition Case Shilpa Sailesh v. Varun Sreenivasan1 cleared the air around the ambit of its power under Article 142 of the Indian Constitution by waiving-off the statutory period of six months’ wait before granting a decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955, in cases of irretrievable breakdown of marriage. The Court while exercising its expansive powers stated that observation of minimum six months’ cooling-off period before finalizing a decree of divorce is not a mandate under law and can be curtailed in exceptional circumstances to do complete justice.

The ramifications of this ruling have given rise to at least two inter-linked public interest problems with legal and constitutional consequences:

A) Whether Supreme Court has the authority to disregard, negate, or otherwise invalidate the specific provisions of statutory legislation while exercising its authority under Article 142 of the Constitution?

B) If affirmative, what is the scope and extent of power of this court under Article 142 to dispense with the six months cooling-off period of under Section 13- B of the Hindu Marriage Act, 1955?

C) Whether such power can be exercised to dissolve marriage between non-consenting parties under Section 13- B of the Hindu Marriage Act, 1955?