Author Details:-
AYUSHI MENDHIRATTA
BALLB 3RD YEAR STUDENT, UILS , CHANDIGARH
CIVIL ORIGINAL JURISDICTION
TRANSFER PETITION (CIVIL) NO.1118 OF 2014
DECIDED ON 1ST MAY 2023
BRIEF FACTS OF THE CASE
Shilpa and Varun were a married couple. They had tied their matrimonial knots by the way of the Hindu Marriage Act of 1955. Due to some dissenting opinions, the couple started living separately. After constant accusations of being cruel and violent to each other for more than 6 years, the couple decided to get a divorce.
Both of them were not ready to cohabit again with each other at any cost. They approached the court to grant a divorce under sec 13B of the Hindu Marriage Act 1955 and also sought the legal validity of the court to dispose of the waiting period of 6 months mentioned under section 13 B of the respective act and grant a decree of the divorce.
ISSUES PRESENTED:
1) Does the Apex Court of our country have the right to exercise its power and jurisdiction under Article 142 of the Indian constitution to grant divorce to the litigant parties by waving off the procedural aspect of the statute?
2) Is the constitutional provision mentioned under Article 142 a power and right of the court to be exercisable in all cases or is it discretionary keeping in mind the facts and circumstances of a respective case?
3) whether the court can grant a divorce for irretrievable breakdown of marriage despite one party opposing such a grant or relief.
4) can the court set aside the fault theory to grant complete justice in any ‘cause or matter’ mentioned under Article 142 of the Indian constitution?
5) if the answers to the above question is in affirmation, whether people can file a writ under article 32 or 226 to grant a divorce?
ARGUMENTS BY PLAINTIFF
The counsel on behalf of the appellant argued the apex court has the jurisdiction to exercise its power under Article 142 of the constitution to grant divorce. Subsequently, to impart fair and adequate justice the court should grant a divorce on grounds of irretrievable breakdown of marriage whilst the other party does not imbibe its assent to it. The court should take all the necessary action taking into consideration the mental and physical health of the party along with the financial situation to upkeep her expenses. The counsel argued that the cooling-off period of 6 months will only bring more agony and frustration despite of the relief.
ARGUMENTS BY RESPONDENT
The counsel on behalf of Varun argued that he is not in favor of dissolving the marriage solely on the expressed ground of irretrievable breakdown of marriage. That the statutory provision described under sec 13 B of Hindu Marriage Act 1955 shall not be set aside by the court in the exercise of power under article 142 of the constitution. Consequently, the rules and provisions prescribed under the statutory act should be followed religiously to ensure fairness and justice.
RELEVANT LEGAL PROVISIONS:
Article 142 in the Constitution of India:
1Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc
(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, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
(2)Subject to the provisions of any law made on this behalf by Parliament, the Supreme Court shall, as respect the whole of the territory of India, have all and every power to make any order to secure the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.
2 SEC 13-B OF HINDU MARRIAGE ACT 1955
Divorce by mutual consent.
(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made no earlier than six months after the date of the presentation of the petition referred to in subsection (1) and not later than eighteen months after the said date if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.
DECISION OF THE COURT:
To bring complete justice in any cause or matter to the litigant parties, the constitution of India provided significant power to the Apex Court under Article 142. The word ‘cause or matter’ refers to any kind of proceedings whether civil or criminal which is either disposed off or is pending in the court. In order to ensure complete justice under the provisions of above said article, the court should be mindful of the ‘fundamental general laws and specific public policies.’
The apex court has the power to set aside procedural or substantive laws for the purpose of ensuring fair and equitable justice. While passing a decree on divorce the court should keep in mind certain necessary factors such as the duration of marriage, the living conditions of spouses and their background, for how long the spouses are staying apart, and whether all the imperative methods have been used to ensure the cohabitation of the spouses or not. To file a petition under Article 142 of the Indian constitution is not a vested right rather it’s the discretionary power of the court to entertain a certain petition based on its facts and circumstances.
The court also stated that it can dissolve the marriage even if one of the spouses is of the opposing view , on ‘being satisfied’ with the irretrievable breakdown of the marriage. Marriage is a sacramental union; thus, every possible effort should be made in order to protect the matrimonial knots, albeit if the court believes that the marriage is broken beyond repair and reconciling the persons again will only bring agony, frustration, pain, and misery, it can grant a decree of divorce. By quashing or disposing of the petition under Article 142 of the Indian constitution, all the other pending civil and criminal proceedings will be simultaneously dismissed.
At last, the court alluded that in order to get relief or to take revenge parties often use fault theory to accuse each other of legal offences. In such circumstances, it becomes a grinding work for the court to allocate the guilt of a person . thus while exercising its discretionary power court can set aside the fault theory. The court relied upon the principle that ‘ EQUITY FOLLOWS THE LAW’. The parties cannot directly file a writ petition under Article 32 or 226 of the Indian constitution. The party can approach the Supreme Court if it is aggrieved by the decision of the respective judicial forum.
SOME IMPORTANT CASE LAWS:
1) M. Siddiq (Dead) Through Legal Representatives (Ram Janmabhumi Temple Case) v. Mahant Suresh Das and Others in order to accomplish complete justice , the court should be mindful of the fundamental general laws and specific public policies while exercising its power and jurisdiction under article 142 of indian constitution .
the words cause or matter described in Article 142 of the Indian constitution empower the court to do complete justice comes under the ambit of particular equity.
2) Union Carbide Corporation and Others v. Union of India and Others
– the word cause or matter when clubbed together refers to any kind of proceedings whether civil or criminal WHICH IS EITHER DISPOSSED OFF OR IS PENDING IN THE COURT.
3) AMANDEEP SINGH VS HARVEEN KAUR
-It was stated that the cooling-off period is discretionary in nature and can be waived by the court if it is satisfied that the parties have already been living separately for a period of one and a half years, with no possible chance of reconciliation between them.
CRITICAL ANALYSIS:-
The Apex court while exercising its power under Article 142 of the Indian constitution can altogether be oblivious to the statutory provisions of the law. Although the Constitution has granted such power to the Supreme Court, it should be vigilant enough to abide by the statutory provisions. This power of the court shall be used in exceptional circumstances along with some limitation and restraints. In (Prem Chand Garg and Another v. The Excise Commissioner, U.P. and Other) it was submitted that the power granted to the court under Article 142 of the Indian constitution cannot be exercised in such a manner that it declares the order that is completely inconsistent with the ongoing statutory provisions. The judgment was silent regarding whether high court has the right to waive off the cooling period as described under section 13-B by a writ or a petition. To provide equitable justice both parties’ consent should be taken. The court should not disregard the party of opposing view. The principle of good conscience , fairness and justice should be followed in a strict manner.
CONCLUSION:
The main task force of the judicial system is to impart ‘complete justice’. To ensure complete and adequate justice the court have to sometimes turn a deaf ear to the provision provided under a statute. Article 142 of the Indian constitution furnishes immense power to the Supreme Court to impart complete justice in any cause or matter. Moreover, the court can grant a divorce to the litigant parties by waiving off the prescribed cooling off period of 6-18 months on being satisfied with irretrievable breakdown of the marriage. Nevertheless, this power should not be misused. It should be used only in exceptional circumstances, keeping in account the general and specific public policies.
REFERENCES:
1 (No date) Article 142 in the constitution of India. Available at: https://indiankanoon.org/doc/500307/ (Accessed: 10 August 2024).
2India Code: Section details. (n.d.). https://www.indiacode.nic.in/show-data?actid=AC_CEN_3_20_00004_195525_1517807318992&orderno=15#:~:text=(1)%20Subject%20to%20the%20provisions,68%20of%201976)%2C%20on%20the
https://main.sci.gov.in/supremecourt/2014/26304/26304_2014_2_1501_44203_Judgement_01-May-2023.pdf
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