Every week, special leave petitions arising out of divorce decrees, maintenance orders, custody arrangements and quashing petitions in matrimonial FIRs are listed before the Supreme Court. Article 136 of the Constitution gives the Court a discretionary power to grant leave against any order of any court or tribunal — but in family litigation the discretion has a distinctive shape. This explainer sets out when an SLP in a matrimonial matter is worth filing, what the Court typically does with one, and the unique powers — settlement under Article 142 among them — that only this forum offers.
The discretionary gate
Article 136 is not an appeal; it is a petition for the Court's leave to appeal. In matrimonial matters the gate is narrower in practice than in many commercial fields, for a structural reason: family cases are fact-heavy, and the Supreme Court does not sit as a third court of facts. A party aggrieved by a finding of cruelty or desertion, a quantum of maintenance, or a custody schedule must show something more than disagreement — a misapplication of the legal standard, findings unsupported by the record, orders passed without jurisdiction or in breach of natural justice, or conflicting High Court positions on a question that needs settling.
What matrimonial SLPs typically seek — and get
Protection against eviction from the matrimonial home, visitation pending proceedings, or conditions on execution of money decrees — short orders that stabilise the dispute.
Composite orders dissolving the marriage, fixing one-time alimony and quashing cross-cases — the Supreme Court's most used matrimonial power.
The occasional grant of leave on a genuine legal question — the scope of a maintenance provision, the standard for custody relocation, the interplay of overlapping statutes.
Interference where the High Court's order is contradictory, ignores admitted material, or leaves a party remediless.
What the Court rarely does
Re-weigh evidence of cruelty; recalibrate maintenance fixed after proper affidavits of assets; disturb a child's settled arrangement absent demonstrated harm; or entertain SLPs against purely interlocutory family-court orders that can be corrected in the High Court. An SLP filed on such grounds is usually dismissed in limine — often with the one-line order that the Court is not inclined to interfere — which leaves the High Court order untouched and, under the doctrine of merger, decides nothing beyond that refusal.
Strategy notes for the Delhi litigant
First, exhaust the right forum. Many grievances dressed up as SLPs belong in a review before the High Court, an appeal within the family-courts structure, or an execution or modification application in the trial court — cheaper, faster, and without the risk of an early dismissal hardening the order.
Second, mind limitation and candour. The ninety-day period runs from the High Court order; condonation is discretionary; and suppression of parallel proceedings — a pending DV case, an execution, a quashing petition — is treated severely in a forum that insists on full disclosure.
Third, come with a workable proposal. Benches hearing matrimonial SLPs habitually explore settlement at the first listing. A party who arrives with a concrete structure — a figure for permanent alimony, a custody and visitation plan, a list of proceedings to be closed — controls that conversation; a party who arrives only with grievances follows it.
Finally, remember the transfer petition. For a spouse in Delhi facing proceedings in a distant State, the practical Supreme Court remedy is usually not an SLP against some order in that case, but a transfer petition seeking that the case itself be moved — a distinct, well-trodden jurisdiction with its own practice of video-conferencing directions and travel-cost conditions.
This is a general explainer on Article 136 practice in matrimonial litigation. It is informational only; whether any particular order merits an SLP, a review, a transfer petition or nothing at all is a question of case-specific advice.
Frequently Asked Questions
Can every divorce or maintenance order be challenged in the Supreme Court?
Technically any final High Court order can be the subject of an SLP; practically, leave is granted sparingly. Concurrent findings of fact — cruelty held proved by both the family court and the High Court, or a maintenance figure fixed on assessed incomes — are rarely reopened. What attracts the Court is a question of law, a perverse or contradictory finding, a jurisdictional error, or an order that leaves one side without workable interim protection.
What can the Supreme Court do that the High Court cannot?
Two things stand out. Under Article 142, the Court can do complete justice — including dissolving a marriage on irretrievable breakdown and settling all money and custody terms in one composite order, a power High Courts do not have. And under Section 25 CPC, the Court (in a separate transfer petition, not an SLP) can move a matrimonial case from one State to another, the single most common Supreme Court remedy in family disputes.
Does filing an SLP stay the High Court order?
No. There is no automatic stay; maintenance continues to run, decrees remain executable, and custody arrangements continue until the Court orders otherwise. Interim relief must be specifically sought, and in maintenance matters the Court commonly conditions any stay on substantial payment or deposit, so that the SLP does not become a device to starve out the other side.
Is the Supreme Court a good forum for settlement?
Often the best one. By the SLP stage, both sides have litigated for years and the Court's mediation centre and Article 142 powers allow a single order to dissolve the marriage, fix permanent alimony, close cross-FIRs by quashing, and wind up every pending proceeding between the families. A significant share of matrimonial SLPs end precisely this way rather than in a decision on the merits.