While ruling on a very significant legal point with far reaching legal consequences, the Supreme Court in a most learned, laudable, landmark and latest judgment titled Shilpa Sailesh vs Varun Sreenivasan in Transfer Petition (Civil) No. 1118 of 2014 and cited in 2023 LiveLaw(SC) 375 that was pronounced as recently as on May 1, 2023 in the exercise of its civil original jurisdiction has held unambiguously that it can invoke the special powers under Article 142 of the Constitution of India to waive the waiting period of 6 to 8 months prescribed for seeking divorce through mutual consent as per Section 13-B of the Hindu Marriage Act 1955.
It must be mentioned here that the 5-Judge Bench of the Apex Court comprising of Justices Sanjay Kishan Kaul, Sanjiv Khanna, AS Oka, Vikram Nath and JK Maheshwari held that Supreme Court can exercise power under Article 142(1) of the Constitution, in view of the settlement between the parties on the ground of irretrievable breakdown of marriage and grant a decree of divorce by mutual consent dispensing with the period and the procedure prescribed under Section 13-B of the Hindu Marriage Act. The Bench also made it amply clear that a party cannot file a writ petition under Article 32 of the Constitution of India to seek relief of dissolution of marriage on the ground of irretrievable breakdown of marriage directly from it.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon'ble Mr Justice Sanjiv Khanna for a Bench of the Apex Court comprising of Justices Sanjay Kishan Kaul, AS Oka, Vikram Nath, JK Maheshwari and himself sets the ball rolling by first and foremost putting forth in para 1 that:
The issues before this Constitution Bench, as adumbrated below, arise primarily from the order dated 12.05.2010 passed in T.P. (C) No. 899 of 2007, Neeti Malviya v. Rakesh Malviya, wherein a bench of two judges had doubted the view expressed in Anjana Kishore v. Puneet Kishore (2002) 10 SCC 194. This decision is rendered by a three judges' bench and Manish Goel v. Rohini Goel (2010) 4 SCC 393 that this Court, in exercise of the power under Article 142 of the Constitution of India, cannot reduce or waive the period of six months for moving the second motion as stipulated in sub-section (2) to Section 13-B of the Hindu Marriage Act, 1956 (For Short, 'Hindu Marriage Act'). Noticing that this Court, some High Courts and even family courts in some States had been dispensing with or reducing the period of six months for moving the second motion when there was no possibility whatsoever of the spouses cohabiting, the following question was referred to a three judges' bench for a clear ruling and future guidance:
- Whether the period prescribed in sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955 can be waived or reduced by this Court in exercise of its jurisdiction under Article 142 of the Constitution?
However, the question was never decided, since T.P. (C) No. 899 of 2007 was rendered infructuous as the parties, subsequent to the order of reference, had dissolved their marriage by mutual consent.
Do note, the Bench observes in para 19 that:
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.
Be it noted, the Bench notes in para 40 that:
In view of our findings recorded above, we are of the opinion that the decisions of this Court in Manish Goel (supra), Neelam Kumar (supra), Darshan Gupta (supra), Hitesh Bhatnagar (supra), Savitri Pandey (supra) and others have to be read down in the context of the power of this Court given by the Constitution of India to do 'complete justice' in exercise of the jurisdiction under Article 142(1) of the Constitution of India. In consonance with our findings on the scope and ambit of the power under Article 142(1) of the Constitution of India, in the context of matrimonial disputes arising out of the Hindu Marriage Act, we hold that the power to do 'complete justice' is not fettered by the doctrine of fault and blame, applicable to petitions for divorce under Section 13(1)(i-a) of the Hindu Marriage Act. As held above, this Court's power to dissolve marriage on settlement by passing a decree of divorce by mutual consent, as well as quash and set aside other proceedings, including criminal proceedings, remains and can be exercised.
Quite significantly, the Bench propounds in para 41 that:
Lastly, we must express our opinion on whether a party can directly canvass before this Court the ground of irretrievable breakdown by filing a writ petition under Article 32 of the Constitution. In Poonam v. Sumit Tanwar (2010) 4 SCC 460, a two judges' bench of this Court has rightly held that any such attempt must be spurned and not accepted, as the parties should not be permitted to file a writ petition under Article 32 of the Constitution of India, or for that matter under Article 226 of the Constitution of India before the High Court, and seek divorce on the ground of irretrievable breakdown of marriage. The reason is that the remedy of a person aggrieved by the decision of the competent judicial forum is to approach the superior tribunal/forum for redressal of his/her grievance.
The parties should not be permitted to circumvent the procedure by resorting to the writ jurisdiction under Article 32 or 226 of the Constitution of India, as the case may be. Secondly, and more importantly, relief under Article 32 of the Constitution of India can be sought to enforce the rights conferred by Part III of the Constitution of India, and on the proof of infringement thereof. Judicial orders passed by the court in, or in relation to, the proceedings pending before it, are not amenable to correction under Article 32 of the Constitution of India.
(See - Sahibzada Saiyed Muhammed Amirabbas Abbasi & Others v. State Of Madhya Bharat (Now Madhya Pradesh) & Others, AIR 1960 SC 768; Ujjam Bai v. State of Uttar Pradesh, AIR 1962 SC 1621; and Naresh Shridhar Mirajkar and Others v. State of Maharashtra and Another, AIR 1967 SC 1). Therefore, a party cannot file a writ petition under Article 32 of the Constitution of India and seek relief of dissolution of marriage directly from this Court. While we accept the said view, we also clarify that reference in Poonam (supra) to Manish Goel (supra) and the observation that it is questionable whether the period of six months for moving the second motion can be waived has not been approved by us.
Conclusion
Most significantly, the Bench minces just no words to hold in para 42 that:
In view of the aforesaid discussion, we decide this reference by answering the questions framed in the following manner:
- The scope and ambit of power and jurisdiction of this Court under Article 142(1) of the Constitution of India.
This question as to the power and jurisdiction of this Court under Article 142(1) of the Constitution of India is answered in terms of paragraphs 8 to 13, inter alia, holding that this Court can depart from the procedure as well as the substantive laws, as long as the decision is exercised based on considerations of fundamental general and specific public policy. While deciding whether to exercise discretion, this Court must consider the substantive provisions as enacted and not ignore the same, albeit this Court acts as a problem solver by balancing out equities between the conflicting claims. This power is to be exercised in a 'cause or matter'.
- In view of, and depending upon the findings of this bench on the first question, whether this Court, while hearing a transfer petition, or in any other proceedings, can exercise power under Article 142(1) of the Constitution, in view of the settlement between the parties, and grant a decree of divorce by mutual consent dispensing with the period and the procedure prescribed under Section 13-B of the Hindu Marriage Act, and also quash and dispose of other/connected proceedings under the Domestic Violence Act, Section 125 of the Cr.P.C., or criminal prosecution primarily under Section 498-A and other provisions of the I.P.C. If the answer to this question is in the affirmative, in which cases and under what circumstances should this Court exercise jurisdiction under Article 142 of the Constitution of India is an ancillary issue to be decided.
In view of our findings on the first question, this question has to be answered in the affirmative, inter alia, holding that this Court, in view of settlement between the parties, has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion. This power should be exercised with care and caution, keeping in mind the factors stated in Amardeep Singh (supra) and Amit Kumar (supra). This Court can also, in exercise of power under Article 142(1) of the Constitution of India, quash and set aside other proceedings and orders, including criminal proceedings.
- Whether this Court can grant divorce in exercise of power under Article 142(1) of the Constitution of India when there is complete and irretrievable breakdown of marriage in spite of the other spouses opposing the prayer?
This question is also answered in the affirmative, inter alia, holding that this Court, in exercise of power under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be exercised to do 'complete justice' to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. The Court, as a court of equity, is required to also balance the circumstances and the background in which the party opposing the dissolution is placed.
As a corollary, the Bench then specifies in para 43 stating that:
For the foregoing reasons, Transfer Petition (Civil) No. 1118 of 2014, Transfer Petition (Criminal) No. 382 of 2014, Transfer Petition (Criminal) No. 468 of 2014, and Transfer Petition (Civil) Nos. 1481-1482 of 2014 are disposed of, as vide order dated 06.05.2015, a division bench of this Court has already dissolved the marriage between the parties by invoking Article 142(1) of the Constitution of India.
Finally, the Bench then concludes by directing in para 44 that:
Transfer Petition (Criminal) Nos. 96 and 339 of 2014 may be listed before the regular bench in the second week of May, 2023 for appropriate orders and directions.
On the whole, we thus see that the Apex Court has made it indubitably clear that the waiting period for mutual consent divorce as per S.13B(2) of Hindu Marriage Act can be waived invoking Article 142 of Constitution. It was also made crystal clear by the Court that a party cannot file a writ petition under Article 32 of the Constitution to seek relief of dissolution of marriage on the ground of irretrievable breakdown of marriage directly from it. No denying it!
Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut - 250001, Uttar Pradesh
