Supreme Court clarifies use of Article 142 to dissolve marriages on irretrievable breakdown

1. Background of the Reference

A Constitution Bench of the Supreme Court considered the contours of its power under Article 142(1) of the Constitution in the context of matrimonial disputes governed by the Hindu Marriage Act, 1955.

The reference reached the Constitution Bench because of conflicting judicial approaches on two core aspects:

Whether the Supreme Court can waive or cut down the six‑month “cooling off” period in Section 13B(2) (divorce by mutual consent); and
Whether the Court can grant divorce on the basis of irretrievable breakdown of marriage, even though that ground does not expressly appear in the statute.

The matter arose initially in T.P. (C) No. 899 of 2007, Neeti Malviya v. Rakesh Malviya, where a two‑Judge Bench had doubted earlier rulings in Anjana Kishore v. Puneet Kishore and Manish Goel v. Rohini Goel. Those decisions had been understood to mean that the Supreme Court could not, using Article 142, waive the six‑month waiting period in Section 13B(2).

In T.P. (C) No. 1118 of 2014, Shilpa Shailesh v. Varun Sreenivasan, a later two‑Judge Bench:

Sought the assistance of the Attorney General of India; and
Formulated larger legal questions on the interplay between Article 142 and matrimonial law.

Eventually, the matter was referred under Article 145(3) to a Constitution Bench.

2. Questions Considered by the Constitution Bench

The Constitution Bench crystallised three principal issues:

Scope of Article 142(1)
- What is the width and nature of the Supreme Court’s power “to do complete justice” in any cause or matter pending before it?
Mutual consent divorce and procedural relaxation
- Whether, while hearing transfer petitions or other proceedings, the Supreme Court can:
  - Grant a decree of divorce by mutual consent by dispensing with the statutory process under Section 13B (including the waiting period under Section 13B(2)); and
  - Simultaneously quash or dispose of connected proceedings under:
    - Protection of Women from Domestic Violence Act, 2005
    - Section 125 CrPC
    - Section 498A IPC and other provisions of the Indian Penal Code, 1860.
- If the answer is yes, in what types of cases, and subject to which safeguards, should this extraordinary power be exercised?
Irretrievable breakdown of marriage without mutual consent
- Whether the Supreme Court can dissolve a marriage in exercise of power under Article 142(1) even when one spouse opposes divorce, if the Court is satisfied that the marriage has completely and irretrievably broken down.

3. Nature and Limits of Article 142(1)

3.1 Text of Article 142(1)

The Bench reproduced Article 142(1):

“The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it…”

The Court reiterated that this provision is unique, with no real parallel in most written constitutions. It has its roots in broad notions of justice, equity and good conscience and allows the Supreme Court to close a dispute by doing “complete justice” between the parties.

3.2 Equity and “complete justice”

Referring to M. Siddiq (Dead) Through Legal Representatives (Ram Janmabhumi Temple Case) v. Mahant Suresh Das and Others, the Court noted that:

The words “is necessary for doing complete justice” cover a wide equitable jurisdiction;
Article 142 empowers the Court to address gaps (“silences”) or harsh edges in positive law, where strict statutory application would not yield a just result;
This power functions at the intersection of general law and particular equity – allowing tailored relief in highly specific factual settings.

The Bench clarified that Article 142 can, in an appropriate case, give precedence to equity over strict legal rules, but with important restraints.

3.3 Relationship with statutory provisions

Relying on Union Carbide Corporation and Others v. Union of India and Others and Supreme Court Bar Association v. Union of India and Another, the Bench restated the governing principles:

Ordinary statutory restrictions do not automatically limit the Supreme Court’s power under Article 142(1).
However, the Court cannot:
- Ignore or override substantive statutory prohibitions that embody fundamental public policy; or
- Act contrary to the Constitution itself.

The Court distinguished between:

Procedural rules: From which the Court can depart under Article 142 when such departure is essential to achieve “complete justice”; and
Substantive law grounded in core public policy: Which the Court will not contravene.