TaxTMI 
TaxTMI 
2023 (5) TMI 1387
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....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: (I) 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 n....
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....pplicability of the power and jurisdiction of this Court Under Article 142 of the Constitution of India, the two judges' bench of this Court deferred the transfer petition to remain pending for statistical purposes, and formulated the following questions of law to be decided by a three judges' bench: 4. Notwithstanding the above order passed by us, for the purposes of statistics the present transfer petitions shall remain pending as we are of the view that an issue of some importance needs to be addressed by the Court in view of the huge number of requests for exercise of power Under Article 142 of the Constitution that has confronted this Court consequent to settlement arrived at by and between the husband and the wife to seek divorce by mutual consent. 5. The questions are formulated herein below: 1. "What could be the broad parameters for exercise of powers Under Article 142 of the Constitution to dissolve a marriage between the consenting parties without referring the parties to the Family Court to wait for the mandatory period prescribed Under Section 13-B of the Hindu Marriage Act. 2. Whether the exercise of such jurisdiction Under ....
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....Indian Penal Code, 1860 For short, '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(1) of the Constitution of India is an ancillary issue to be decided; and (iii) The third issue, which is of considerable importance, is 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 spouse opposing the prayer. Article 142(1) of the Constitution of India. 8. Article 142(1) of the Constitution of India reads: 142. Enforcement 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 m....
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....ution brings to fore the intersection between the general and specific. Courts may find themselves in situations where the silences of the law need to be infused with meaning or the rigours of its rough edges need to be softened for law to retain its humane and compassionate face... Words in the above quotation that 'the equitable power Under Article 142 of the Constitution of India brings to fore the intersection between the general and specific' laws, should be read as making a reference to the classification of equity by Professor C.K. Allen 'See - C.K. Allen, Law in the Making (Clarendon Press, Oxford, 1927). in two principle forms: (i) a liberal and humane interpretation of law in general, so far as that is possible without actual antagonism to the law itself - called equity in general; and (ii) a liberal and humane modification of the law in exceptional cases, not coming within the ambit of the general Rule - called particular equity. See - Ninad Laud, Rationalising "Complete Justice" Under Article 142, (2021) 1 SCC J-30. The words 'cause or matter' in Article 142(1) of the Constitution of India, which particularise and empower this Court to do 'com....
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.... the decision in a 'cause or matter'. To do 'complete justice' is the utmost consideration and guiding spirit of Article 142(1) of the Constitution of India. 10. In Union Carbide Corporation and Ors. v. Union of India and Ors. (1991) 4 SCC 584, this Court laid specific emphasis on the expression 'cause or matter' to observe that 'cause' means any action or criminal proceedings, and 'matter' means any proceedings in the court and not in a 'cause'. The words 'cause or matter', when used together, cover almost every kind of proceedings in court, whether civil or criminal, interlocutory or final, before or after judgment. Having held so, this Court observed thus: 83. It is necessary to set at rest certain misconceptions in the arguments touching the scope of the powers of this Court Under Article 142(1) of the Constitution. These issues are matters of serious public importance. The proposition that a provision in any ordinary law irrespective of the importance of the public policy on which it is founded, operates to limit the powers of the apex Court Under Article 142(1) is unsound and erroneous. In both Garg as well a....
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....d discretion accordingly. The proposition does not relate to the powers of the Court Under Article 142, but only to what is or is not 'complete justice' of a cause or matter and in the ultimate analysis of the propriety of the exercise of the power. No question of lack of jurisdiction or of nullity can arise. 11. Whether this ratio is in conflict with the earlier decisions A.R. Antulay v. R.S. Nayak and Anr. (1988) 2 SCC 602; Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and Ors. (1991) 4 SCC 406; and Mohammed Anis v. Union of India and Ors. 1994 Suppl. (1) SCC 145. In Mohammed Anis, this Court, while elucidating and unfolding the aspect of public policy and when it would operate to limit the power of the Supreme Court, observes that given the nature of power conferred by the Constitution of India on this Court Under Article 142 of the Constitution of India, which is of a different quality and level, prohibitions or limitations on provisions contained in ordinary laws cannot ipso facto act as prohibitions or limitations on the Constitutional power Under Article 142 of the Constitution of India. The decision observes that mere re....
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....ncil of India. In this context, we would like to quote the following passages from Supreme Court Bar Association (supra): 47. The plenary powers of this Court Under Article 142 of the Constitution are inherent in the Court and are complementary to those powers which are specifically conferred on the Court by various statutes though are not limited by those statutes. These powers also exist independent of the statutes with a view to do complete justice between the parties. These powers are of very wide amplitude and are in the nature of supplementary powers. This power exists as a separate and independent basis of jurisdiction apart from the statutes. It stands upon the foundation and the basis for its exercise may be put on a different and perhaps even wider footing, to prevent injustice in the process of litigation and to do complete justice between the parties. This plenary jurisdiction is, thus, the residual source of power which this Court may draw upon as necessary whenever it is just and equitable to do so and in particular to ensure the observance of the due process of law, to do complete justice between the parties, while administering justice according to law. The....
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....e subject-matter of a given case cannot be altogether ignored by this Court, while making an order Under Article 142. Indeed, these constitutional powers cannot, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in a statute dealing expressly with the subject. 12. We must, at this stage, as noticed in Union Carbide Corporation (supra), draw a distinction between the Constitutional power exercisable by this Court Under Article 142(1) of the Constitution of India, and the inherent power of the civil court recognised by Section 151 of the Code of Civil Procedure and the inherent power of the High Court Under Section 482 Code of Criminal Procedure, which provisions empower the civil court in civil cases and the High Court in criminal cases to pass such orders as may be necessary to meet the 'ends of justice' or to prevent abuse of the process of court. The expression 'ends of justice' refers to the best interest of the public within the four corners of the law, albeit the courts are not empowered to act contra....
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.... the Code of Criminal Procedure. 13. Given the aforesaid background and judgments of this Court, the plenary and conscientious power conferred on this Court Under Article 142(1) of the Constitution of India, seemingly unhindered, is tempered or bounded by restraint, which must be exercised based on fundamental considerations of general and specific public policy. Fundamental general conditions of public policy refer to the fundamental rights, secularism, federalism, and other basic features of the Constitution of India. Specific public policy should be understood as some express pre-eminent prohibition in any substantive law, and not stipulations and requirements to a particular statutory scheme. It should not contravene a fundamental and non-derogable principle at the core of the statute. Even in the strictest sense Some jurists have opined that the judgments on the powers of this Court Under Article 142(1) of the Constitution of India can be divided into three phases. The first phase till late 1980s is reflected in the judgments of Prem Chand Garg (supra) and A.R. Antulay (supra), which inter alia held that the directions should not be repugnant to and in violation of....
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....ution: A Pragmatic Prompt for Proper Legislation by Parliament, 54 JILI (2012) 364]. As observed by us, the ratio as expounded in Union Carbide Corporation (supra) holds good and applies. it was never doubted or debated that this Court is empowered Under Article 142(1) of the Constitution of India to do 'complete justice' without being bound by the relevant provisions of procedure, if it is satisfied that the departure from the said procedure is necessary to do 'complete justice' between the parties. See - Prem Chand Garg (supra), paragraph 13. Difference between procedural and substantive law in jurisprudential terms is contentious, albeit not necessary to be examined in depth in the present decision However, this aspect has been, to some extent, examined in paragraphs 16 to 22 and 30 infra., as in terms of the dictum enunciated by this Court in Union Carbide Corporation (supra) and Supreme Court Bar Association (supra), exercise of power Under Article 142(1) of the Constitution of India to do 'complete justice' in a 'cause or matter' is prohibited only when the exercise is to pass an order which is plainly and expressly barred by statutory provi....
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....t where a question of whether there has been reasonable excuse for withdrawal from society arises, the burden of proving reasonable excuse shall be on the person who has so withdrawn from the society. The effect of the said amendment, as noticed below, partially dilutes the rigours of Sub-section (1)(a) to Section 23 of the Hindu Marriage Act, which stipulates that the court, while examining whether any ground for granting relief exists, should be satisfied that the Petitioner is not, in any way, taking advantage of his/her own wrong or disability for the purpose of such relief. 15. Section 13-B of the Hindu Marriage Act reads as under: 13-B. 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 d....
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....six months, if at all, breeds misery and pain, without any gain and benefit. These are cases where the object and purpose behind Sub-section (2) to Section 13-B of the Hindu Marriage Act to safeguard against hurried and hasty decisions are not in issue and question, and the procedural requirement to move the court with the second motion after a gap of six months acts as an impediment in the settlement. At times, payment of alimony and permanent lump-sum maintenance gets delayed, while anxiety and suspicion remain. Here, the procedure should give way to a larger public and personal interest of the parties in ending the litigation(s), and the pain and sorrow effected, by passing a formal decree of divorce, as de-facto the marriage had ended much earlier. 17. Analysing the provisions of Sub-section (2) to Section 13-B of the Hindu Marriage Act, this Court in Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746 went into the question of whether the cooling off period of six months is mandatory or discretionary. It was held that the cooling off period can be waived by the court where the proceedings have remained pending for long in the courts, these being cases of exceptional situations.....
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....s have failed and there is no likelihood of success in that direction by any further efforts; (iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; (iv) the waiting period will only prolong their agony. The waiver application can be filed one week after the first motion giving reasons for the prayer for waiver. If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the court concerned. The time gap is meant to enable the parties to cogitate, analyse and take a deliberated decision. The object of the cooling off period is not to stretch the already disintegrated marriage, or to prolong the agony and misery of the parties when there are no chances of the marriage working out. Therefore, once every effort has been made to salvage the marriage and there remains no possibility of reunion and cohabitation, the court is not powerless in enabling the parties to avail a better option, which is to grant divorce. The waiver is not to be given on mere asking, but on the court being satisfied beyond doubt that....
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....ubject-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. 20. 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, wh....
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.... clearly stated in Section 89 of the Code of Civil Procedure, Section 23(2) of the Hindu Marriage Act, and Section 9 of the Family Courts Act, 1984. Given that there are multiple legislations governing different aspects, even if the cause of dispute is identical or similar, most matrimonial disputes lead to a miscellany of cases including criminal cases, at times genuine, and on other occasions initiated because of indignation, hurt, anger or even misguided advice to teach a lesson. The multiplicity of litigations can restrict and block solutions, as a settlement has to be holistic and comprehensive, given that the objective and purpose is to enable the parties to cohabit and live together, or if they decide to part ways, to have a new beginning and settle down to live peacefully. Therefore, in B.S. Joshi and Ors. v. State of Haryana and Anr. (2003) 4 SCC 675, this Court, notwithstanding that Section 320 of the Code of Criminal Procedure does not permit compounding of an offence Under Section 498A of the Indian Penal Code, has held that the High Court, exercising the power Under Section 482 of the Code of Criminal Procedure, may quash prosecutions even in non-compoundable offences ....
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.... whether this Court, in exercise of power Under Article 142(1) of the Constitution of India, can grant a decree of divorce when, upon the prayer of one of the spouses, it is satisfied that there is complete and irretrievable breakdown of marriage, notwithstanding the opposition to such prayer by the other spouse? 24. Section 13(1)(i-a) of the Hindu Marriage Act, enacted by Act No. 68 of 1976 with effect from 25th May 1976, reads thus: 13 Divorce.- (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- xx xx xx (i-a) has, after the solemnization of the marriage, treated the Petitioner with cruelty; or xx xx xx This provision often has to be read with Clause (a) to Section 23(1) of the Hindu Marriage Act, the substantive portion of which was enacted as a part of the main enactment vide Act No. 25 of 1955, and reads: 23. Decree in proceedings. - (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that- (a) any of the gr....
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....f there results injury to health. Accordingly, this Court elucidated that if the danger to health arises merely from the fact that the spouses find it impossible to live together and one of the parties is indifferent towards the other, the charge of cruelty may perhaps fail. However, harm or injury to health, reputation, the working-career or the like, would be important considerations in determining whether the conduct of the defending spouse amounts to cruelty. The Petitioner has to show that the Respondent has treated them with cruelty so as to cause reasonable apprehension in their mind that it will be harmful or injurious to live with the contesting spouse. In today's context, two observations, while a court enquires into the charge of cruelty, are of some significance. First, the court should not philosophise on the modalities of married life. Secondly, whether the charge is proved or not cannot be decided by applying the principle of whether a reasonable man situated similarly will behave in a similar manner. What may be cruel to one may not matter to another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another s....
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....se regarded as cruel. Deliberate and wilful intention, therefore, may not matter. Paragraph 16 of the judgment in V. Bhagat (supra) reads as under: 16. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the Petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be....
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.... wide, the courts would be granting divorce for incompatibility of temperament, but this temptation must be resisted, lest the institution of marriage is imperilled. At the same time, the bench felt that the concept of legal cruelty has changed according to the advancement of social concepts and standards of living. Continuous ill-treatment, cessation of marital intercourse, studied neglect, indifference on the part of the spouse and allegation of unchastity are all factors that lead to mental or legal cruelty. While doing so, this Court affirmed that a set of facts stigmatized as cruelty in one case may not be so in another, as cruelty largely depends on the kind of lifestyle the parties are accustomed to or their social and economic conditions. Similarly, intention, it was observed, was immaterial as there can be cruelty even by unintentional conduct. Moreover, mental cruelty is difficult to establish by direct evidence and is to be deciphered by attending to the facts and circumstances in which the two partners in matrimony had been living. On the question of irretrievable breakdown of marriage, which is not a ground for divorce under the Hindu Marriage Act, reference was made t....
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....nd find the truth. Lord Wilson, with whom Lord Hodge and Lady Black agreed, had referred to the three-fold test to interpret Section 1(2)(b) of the Matrimonial Causes Act 1973 (of England and Wales) to establish whether the marriage had been irretrievably broken down in such a way that the Petitioner cannot reasonably be expected to live with the Respondent; (i) by reference to the allegations of behaviour in the petition, to determine what the Respondent did or did not do; (ii) to assess the effect which the behaviour had upon the particular Petitioner in the light of the latter's personality and disposition and of all circumstances in which it occurred; and (iii) to make an evaluation whether as a result of the Respondent's behaviour and in the light of its effect on the Petitioner, an expectation that the Petitioner should continue to live with the Respondent would be unreasonable These tests, with suitable modification, can well be applied in cases Under Section 13(1)(i-a) of the Hindu Marriage Act. Lady Hale, in her judgment, observed that searching and assigning blame is not vital, as the ground of divorce is based on conduct, and not fault or fact finding to ascertai....
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....r case, without breaching the self-imposed restraint applicable when this Court exercises power Under Article 142(1) of the Constitution of India, as elucidated in the judgments referred to above. Explanation to Section 9 of the Hindu Marriage Act, which reads, "Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society", partially mitigates the rigors to Section 23(1)(a) of the Hindu Marriage Act and, consequently, the fault theory. 31. At this juncture, we would refer to two judgments authored by one of the members of this bench (Sanjay Kishan Kaul, J.) in Munish Kakkar v. Nidhi Kakkar (2020) 14 SCC 657 and Sivasankaran v. Santhimeenal 2021 SCC OnLine SC 702. In Munish Kakkar (supra), the parties had been engaged in multifarious litigations, including divorce proceedings, for almost two decades. Yet, they opposed divorce by mutual consent. The Respondent - wife was based in Canada, to where she had shifted, and was statedly taking medication for depression. The Appellant - husband complained of loneliness and lack of co-habitation, causing me....
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.... be protected financially so that she may not have to suffer financially in future and she may not have to depend upon others. Accordingly, this Court passed a decree of divorce by exercising the jurisdiction Under Article 142(1) of the Constitution of India. 33. Having said so, we wish to clearly state that grant of divorce on the ground of irretrievable breakdown of marriage by this Court is not a matter of right, but a discretion which is to be exercised with great care and caution, keeping in mind several factors ensuring that 'complete justice' is done to both parties. It is obvious that this Court should be fully convinced and satisfied that the marriage is totally unworkable, emotionally dead and beyond salvation and, therefore, dissolution of marriage is the right solution and the only way forward. That the marriage has irretrievably broken down is to be factually determined and firmly established. For this, several factors are to be considered such as the period of time the parties had cohabited after marriage; when the parties had last cohabited; the nature of allegations made by the parties against each other and their family members; the orders passed in the ....
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....wever, the bench did not specifically examine the question of whether the period prescribed Under Section 13-B of the Hindu Marriage Act is mandatory or directory in nature, and if directory, whether the same could be dispensed with by the High Court in exercise of its writ/appellate jurisdiction. See - Manish Goel (supra), paragraph 23. Further, the two judges' bench did not exercise extraordinary jurisdiction Under Article 142(1) of the Constitution of India, observing that it was not a case where there was any obstruction to the stream of justice, or there was injustice to the parties requiring the court to grant equitable relief. The contingencies to exercise of power Under Article 142(1) of the Constitution of India were not established. 35. In Hitesh Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234, one of the parties had withdrawn the consent before the stage of second motion, and therefore, the decree of divorce could not be passed. The bench relied on the earlier judgment in Sureshta Devi v. Om Prakash (1991) 2 SCC 25, wherein it has been held that in a case of divorce by mutual consent, a party may withdraw the consent at any stage before the decree of divorce is pass....
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....ed in exercise of power Under Article 142 of the Constitution of India, was not accepted as the bench could not be persuaded on the ground and facts of the case to justify exercise of the power. The bench observed that the concept of justice varies depending upon the interest of the party. The Hon'ble judges held that "it is questionable as to whether the relief sought...on the ground of irretrievable breakdown of marriage is available...". Thus, in this case, the judgment did not give any firm opinion and finding on the questions that we have answered with reference to the jurisdiction and power of this Court Under Article 142(1) of the Constitution of India. 38. In Neelam Kumar v. Dayarani (2010) 13 SCC 298, reference was made to Satish Sitole v. Ganga, (2008) 7 SCC 734 wherein the marriage was dissolved in exercise of the power Under Article 142 of the Constitution of India on the ground of its irretrievable breakdown, but the submission was not accepted in Neelam Kumar (supra) on the reason that there was nothing to indicate that the Respondent was, in any way, responsible for the breakdown of marriage. It was observed that in Vishnu Dutt Sharma v. Manju Sharma (2009) 6 ....
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....ttered 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. 41. 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 p....
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.... 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 Code of Criminal Procedure, or criminal prosecution primarily Under Section 498-A and other provisions of the Indian Penal Code 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 U....