Deciding Authority: Supreme Court of India
Name of the Judges: Justice Aftab Alam, Justice B.S. Chauhan
Date of Judgement: February 5, 2010
Facts of the Case: The husband, the petitioner, possessed the qualifications of CA, CS and ICWA, while the respondent-wife was a Doctor by profession. The parties got married on 23rd July, 2008 in Delhi. Their relations became strained immediately after the marriage and they were living separately since 24.10.2008. The husband filed a case under Section 12 of the Hindu Marriage Act, 1955 for annulment of marriage. The wife, Smt. Rohini Goel filed a petition under Section 12 r/w Section 23 of the Domestic Violence Act, 2005. Also, an FIR was also lodged by her against husband and his family members under Sections 498-A, 406 and 34 of Indian Penal Code. By persuasion of the family members and friends, the parties entered into a compromise before the Mediation Centre, Delhi by which they agreed to settle all their disputes dissolve their marriage. The parties filed an application under Section 13-B(1) of the Act before the Family Court seeking divorce by mutual consent. The parties then filed another application to waive the statutory period of six months in filing the second petition. However, the Court rejected the said application. Hence, this petition came before the Hon’ble Supreme Court of India.
Judgement: Article 136 of the Constitution gives discretionary power to the Supreme Court to grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India. However, it is an extra-ordinary jurisdiction vested by the Constitution in the Court and extra ordinary care and caution has to be observed while exercising this jurisdiction. There is no vested right of a party to approach this Court and a course can be taken when this court feels that it is so warranted to eradicate injustice. Such a jurisdiction is to be exercised by the consideration of justice and call of duty. The Court has to see that injustice is not perpetuated or perpetrated by decisions of courts below. Also, there should be a question of law of general public importance or a decision which shocks the conscience of the court. In Union of India & Ors. v. Karnail Singh (1995) 2 SCC 728, this court held that it is true that this Court when exercises its discretionary power under Article 136 or passes any order under Article 142, it does so with great care and due circumspection. But, when we are settling the law in exercise of this court’s discretion, such law, so settled, should be clear and become operational instead of being kept vague, so that it could become a binding precedent in all similar cases to arise in future.
The instant case presented the special features warranting the exercise of such power. Since, the court has been exercising the power under Article 142 of the Constitution for dissolution of marriage where the Court finds that marriage is totally unworkable, emotionally dead and has broken down irretrievably, even if the facts of the case do not provide a ground in law on which the divorce could be granted, decree of divorce has been granted to resolve all cases between the parties to save them from further agony, as it is evident from the judgments in Romesh Chander v. Savitri AIR 1995 SC 851; Ashok Hurra v. Rupa Bipin Zaveri AIR 1997 SC 1266; Durga P. Tripathy v. Arundhati Tripathy AIR 2005 SC 3297; Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511. These are the cases, where this Court came to rescue the parties on the ground for divorce not provided for by the legislature in the statute.
In Anjana Kishore v. Puneet Kishore (2002) 10 SCC 194, this Court allowed a transfer petition directed the court concerned to decide the case of divorce by mutual consent by ignoring the statutory requirement of moving the motion after expiry of the period of six months under Section 13- B(2) of the Act. However, judgements like Chetan Dass v. Kamla Devi AIR 2001 SC 1709 and Vishnu Dutt Sharma v. Manju Sharma (2009) 6 SCC 379 took a contrary view that in case the legal ground for grant of divorce is missing, exercising such power amounts to transgression of the powers of the legislature.
A Constitution Bench of this Court in Prem Chand Garg & Anr. v. Excise Commissioner, U.P. & Ors. AIR 1963 SC 996 held that an order which this Court can make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws.
However, in Laxmidas Morarji by L.Rs. v. Behrose Darab Madan (2009) 10 SCC 425, this Court has held that the power under Article 142 of the Constitution is a constitutional power and hence, not restricted by statutory enactments. However, it is to be made clear that this power cannot be used to supplant the law applicable to the case. the power is to be used sparingly in cases which cannot be effectively and appropriately tackled by the existing provisions of law or when the existing provisions of law cannot bring about complete justice between the parties.
In the instant case there had been claims and counter claims, allegations and criminal prosecution between the parties. Petitioner approached the Competent Court for dissolution of marriage. Since, the case was still pending the parties had filed the petition for divorce by mutual consent only in November 2009 before the Family Court, Delhi. The petitioner had approached the different forums for the same relief because he was very much eager and keen to get the marriage dissolved immediately by abusing the process of the Court. In Jai Singh v. Union of India AIR 1977 SC 898, this Court dealt with a similar issue and held that a litigant cannot pursue two parallel remedies in respect of the same matter at the same time. Even otherwise, the statutory period of six months for filing the second petition under Section 13-B(2) of the Act has been prescribed for providing an opportunity to parties to reconcile and withdraw petition for dissolution of marriage.
Ratio: Generally, no Court has competence to issue a direction contrary to law nor the Court can direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law as held in State of Punjab & Ors. v. Renuka Singla & Ors (1994) 1 SCC 175 and State of U.P. & Ors. v. Harish Chandra & Ors. AIR 1996 SC 2173.
Decision: There had been no injustice to the parties, which was required to be eradicated. The petition did not raise any question of general public importance. None of contingencies exist for the court to exercise its extraordinary jurisdiction under Article 142 of the Constitution. Thus, the petition was dismissed.
By: Roopali Mohan, 2nd Year, Vivekananda Institute of Professional Studies, New Delhi
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