Can a decree of divorce by mutual consent under Article 142(1) be granted without a joint motion under s.13-B, Hindu Marriage Act, 1955?

“a) Allow the present Transfer Petition by transferring the DV Misc. Case No.60/2025 from Judicial Magistrate First Class-III, Cuttack (Odisha) to Additional Chief Judicial Magistrate, 4th Court, Girgaon, Mumbai (Maharashtra) in the interest of justice; b) pass other appropriate order.”

“a) Allow the present application; b) Pass a decree of divorce, dissolving the marriage solemnized between the Applicant (Varun Shib Kumar Surekha) and the Petitioner (Shikha) on 04.12.2016, on the ground of irretrievable breakdown of marriage, in exercise of the powers of this Hon’ble Court under Article 142 of the Constitution of India; c) Quash any and all pending civil and criminal proceedings initiated by the parties against each other and their family members, arising from this matrimonial dispute; d) Pass any such other and further order(s) as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.”

“Learned counsel for the petitioner Ms. Shriya Maini, on instructions, categorically submitted that the petitioner is also ready and willing and has no objection to allowing the application filed by respondent no.3 under Article 142 of the Constitution of India vis-a-vis for divorce by mutual consent. However, the only other aspect is with regard to the permanent alimony to be paid by respondent no.3 to the petitioner. Transfer Petition (Criminal) No.493/2025 is filed by the petitioner seeking the following reliefs: “a) Allow the present Transfer Petition and consequently transfer Charge Sheet No.251/2024 dated 2 31.12.2024 (in FIR No.148/2022 dated 3.9.2022 registered with Malgodown Police Station, UDP, Cuttack, Odisha), which is registered as GR Case (C) No.7039/2023 from JMFC-3, Cuttack to Additional Chief Judicial Magistrate, 4th Court, Girgaon, Mumbai (Maharashtra) in the interest of justice.; and b) pass other appropriate order.” During the pendency of this transfer petition, the parties were referred to the Supreme Court Mediation Centre. However, there was failure of mediation. Consequently, respondent no.3/husband has filed an application under Article 142 of the Constitution of India seeking dissolution of marriage by a decree of divorce on the ground of irretrievable breakdown of marriage and for quashing of all pending litigation between the parties. The petitioner has filed her response to the said application. However, during the course of arguments, learned counsel for the petitioner Ms. Shriya Maini, on instructions, categorically submitted that the petitioner is also ready and willing to accept the decree of divorce by mutual consent. In fact, we have recorded the same during the discussion held today and also earlier on 18.02.2026. The same reads as under - “1. Learned counsel Mr. Sharian Mukherji is now appearing for the petitioner. He submitted that he would have a discussion with Mr. Mandeep Kalra, learned counsel for the respondents with regard to the terms of the settlement. 2. Learned counsel Mr. Sharian Mukherji for the petitioner submitted in the presence of the petitioner that the petitioner is willing to settle the matter and also part-ways provided a suitable settlement is arrived at. 3. Learned counsel submitted that if the matters are again referred to a senior Mediator in the Supreme Court Mediation Centre, possibly there would be an end to these proceedings and there would be a settlement arrived at. 4. Hence, we once again refer the matter to the Supreme Court Mediation Centre. The parties and/or their counsel shall appear before the Supreme Court Mediation Centre on 25.02.2026 at 2.00 P.M. 5. The Director of the Supreme Court Mediation Centre shall assign this matter to learned senior Mediator Shri Rakesh Khanna. 6. Report of the learned Mediator to be placed on record. 7. List the matters immediately thereafter.” Learned counsel for the petitioner was however at pains to point out that the petitioner is suffering from several ailments and therefore, if this Court is inclined to grant a decree of divorce by mutual consent then a suitable and appropriate amount may be paid by respondent no.3/husband to the petitioner towards permanent alimony which would also take care of her medical expenses. Learned counsel for respondent no.3/husband however submitted that initially the claim of the petitioner was only Rs.30,00,000/- and the respondent was willing to pay Rs.15,00,000/-. However, on the suggestions made by this Court, respondent no.3/husband is ready and willing to pay a sum of Rs.35,00,000/- towards full and final settlement of all claims of the petitioner and therefore, the same may be accepted by this Court and the application filed by the respondent/husband may be allowed and a decree of divorce by mutual consent may be granted. Learned counsel for the petitioner, however, has strenuously pointed out that having regard to the medical condition of the petitioner and the fact that she has to spend for her treatment and is now at the mercy of her father, additional amount may be paid towards her medical expenses. In this regard, learned counsel for the petitioner pointed out to certain documents appended to the affidavit of income and assets and liabilities which petitioner has filed. Learned counsel for the petitioner submitted that respondent no.3/husband has sufficient resources and funds to pay the petitioner a dignified amount towards permanent alimony and this Court may not be restrained by what is submitted by learned counsel for respondent no.3. We have heard learned counsel for the respective parties at length and on several dates prior to today’s hearing. We have recorded the categorical submission made by learned counsel for the petitioner that the petitioner is ready and willing to accept the decree of divorce by mutual consent. The petitioner has also appeared through video conferencing facility. However, there have been arguments and counter arguments advanced with regard to the quantum of permanent alimony that the petitioner is entitled to. Learned counsel for the respondent(s) submitted that respondent no.3 has positively responded to the submission of learned counsel for the petitioner and to the suggestions made by this Court and has increased the quantum of permanent alimony from Rs.15,00,000/- to Rs.35,00,000/-. He has to borrow certain sums of money and is not financially well off at present. The said aspects may be taken note of while awarding the permanent alimony to the petitioner herein. We have taken note of the submissions with regard to the requirements of the petitioner and the ability of respondent no.3 to pay the petitioner towards permanent alimony comparatively. We find that firstly, both parties are agreeable to part ways and therefore to seek a decree of divorce by mutual consent. Secondly, noting the submission of learned counsel for the respective parties, we find that the ends of justice would be met if respondent no.3/husband is directed to pay a sum of Rs.35,00,000/- to the petitioner herein. The said amount shall be paid in the following tranches – (a) Rs.2,00,000/- during the course of the day; and (b) Rs.33,00,000/- shall be deposited before the Registry within a period of four weeks from today or alternatively, learned counsel for respondent no.3 is at liberty to hand over Demand Draft to learned counsel for the petitioner on the said date. List on 09.09.2026. It is made clear that no further arguments on the aforesaid aspects shall be considered on the next date of hearing. We also take note of the cases/proceedings pending between the parties and shall pass appropriate orders on them, on the next date of hearing.”

“29. We must acknowledge that this Court has very often entertained applications/prayers for divorce by mutual consent under Section 13-B of the Hindu Marriage Act, and passed a decree of divorce without relegating or asking the parties to move a joint motion before the trial court. In such cases, other pending proceedings between the parties, civil and criminal, are appropriately dealt with in terms of the settlement, and are decreed, quashed or closed accordingly. This situation arises when proceedings are pending in this Court against an interim or a final order passed in a judicial proceeding, or on a transfer petition being filed before this Court. The parties may mutually agree to dissolve the marriage, albeit on many occasions they enter into settlements, often through mediation or on being prompted by the Court. In matrimonial matters, settlement, and not litigation, is the preferable mode of dispute resolution. [See Section 89 CPC and Section 9 of the Family Courts Act, 1984] 30. Exercise of jurisdiction under Article 142(1) of the Constitution of India by this Court in such cases is clearly permissible to do “complete justice” to a “cause or matter”. We should accept that this Court can pass an order or decree which a Family Court, trial court or High Court can pass. As per Article 142(1) of the Constitution of India, a decree passed or an order made by this Court is executable throughout the territory of India. [See the Supreme Court (Decrees and Orders) Enforcement Order, 1954 (C.O.47).] Power of this Court under Articles 136 and 142(1) of the Constitution of India will certainly embrace and enswathe this power to do “complete justice”, even when the main case/proceeding is pending before the Family Court, the trial court or another judicial forum. A question or issue of lack of subject-matter jurisdiction does not arise. Settlements in matrimonial matters invariably end multiple legal proceedings, including criminal proceedings in different courts and at diverse locations. Necessarily, in such cases, the parties have to move separate applications in multiple courts, including the jurisdictional High Court, for appropriate relief and closure, and disposal and/or dismissal of cases. This puts burden on the courts in the form of listing, paper work, compliance with formalities, verification, etc. Parallelly, parties have to bear the cost, appear before several forums/courts and the final orders get delayed causing anxiety and apprehension. In this sense, when this Court exercises the power under Article 142(1) of the Constitution of India, it assists and aids the cause of justice. 31. However, there is a difference between existence of a power, and exercise of that power in a given case. Existence of power is generally a matter of law, whereas exercise of power is a mixed question of law and facts. 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. In Amit Kumar v. Suman Beniwal [Amit Kumar v. Suman Beniwal, (2023) 17 SCC 648] , this Court has held that reading of sub-sections (1) and (2) to Section 13-B of the Hindu Marriage Act envisages a total waiting period/gap of one-and-a-half years from the date of separation for the grant of decree of divorce by mutual consent. Once the condition for waiting period/gap of one-and-a-half years from the date of separation is fulfilled, it can be safely said that the parties had time to ponder, reflect and take a conscious decision on whether they should really put the marriage to end for all times to come. This period of separation prevents impulsive and heedless dissolution of marriage, allows tempers to cool down, anger to dissipate, and gives the spouses time to forgive and forget. 32. At the same time, when there is complete separation over a long period and the parties have moved apart and have mutually agreed to separate, it would be incoherent to perpetuate the litigation by asking the parties to move the trial court. This Court in Amit Kumar [Amit Kumar v. Suman Beniwal, (2023) 17 SCC 648] has observed that, in addition to referring to the six factors/questions in Amardeep Singh [Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746 : (2017) 4 SCC (Civ) 804 : (2017) 3 SCC (Cri) 505] , this Court should ascertain whether the parties have freely, on their own accord, and without any coercion or pressure arrived at a genuine settlement which took care of the alimony, if any, maintenance and custody of children, etc. 33. In our opinion, 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 and the Court, after referring to the factors mentioned above, is convinced and of the opinion that the decree of divorce should be granted.”

“45. Having perused the dicta of this Court particularly in Shilpa Sailesh [Shilpa Sailesh v. Varun Sreenivasan, (2023) 14 SCC 231] , we find that the grant of divorce on the ground of irretrievable breakdown of marriage is on the basis of exercise of discretion by this Court for doing complete justice between the parties. Thus, on the basis of the application filed by one of the parties to the marriage, he or she cannot seek such divorce as a matter of right. It is only when this Court is satisfied and convinced that there is a deadlock in the marriage which cannot be saved and the only solution for the parties is to move on independently by putting an end to their marital ties that the decree for divorce on the ground of irretrievable breakdown of marriage can be granted. In Shilpa Sailesh [Shilpa Sailesh v. Varun Sreenivasan, (2023) 14 SCC 231] as well as other judgments, several factors have been adumbrated which could be considered for the purpose of exercising discretion one way or the other, such as the nature of allegations against each other by the parties and their family members; the orders passed in the legal proceedings from time to time; the period of time that parties have spent together; the cumulative impact on the personal relationship; the attempts made for settlement of disputes; the period of separation between the parties being illustrative factors. The socio-economic status of the parties, their educational qualifications; their age; whether there are children born from the wedlock and as to how the parties would have to be provided for in the event of separation and such other considerations have been particularised in the said judgment. 46. Most importantly, we find that the exercise of discretion under Article 142(1) of the Constitution of India to do complete justice to the parties is because there is no possibility of the parties cohabiting together and continuing their marital relationship. It is also apparent that in the usual course one of the parties would have sought for dissolution of marriage on the basis of one of the grounds mentioned in the law such as Section 13 of HMA. Alternatively, the parties can jointly seek for dissolution of their marriage by a decree of divorce by mutual consent. However, the ground of divorce on the premise that there is irretrievable breakdown of marriage and in order to do complete justice to the parties on the anvil of Article 142(1) of the Constitution of India is an avenue for dissolution of marriage by a decree of divorce granted by this Court by exercising its powers under Article 142(1) of the Constitution.”

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