Constitution of India – Art. 142 – Scope and ambit of – Held: The power u/Art. 142(1) is undefined and uncatalogued, so as to ensure elasticity to mould relief to suit a given situation – The Supreme 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, the Court must consider the substantive provisions as enacted and not ignore the same, albeit the 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’.
Constitution of India – Art. 142 – Hindu Marriage Act, 1955 – s.13-B – Grant of a decree of divorce by mutual consent – Whether Supreme Court while hearing a transfer petition, or in any other proceedings, can exercise power u/Art.142(1) to grant a decree of divorce by mutual consent dispensing with the period and the procedure prescribed u/s.13-B of the Act of 1956 and also quash and dispose of other/connected proceedings and in which cases and under what circumstances should Supreme Court exercise jurisdiction u/Art. 142 – Held: In view of settlement between the parties, the Supreme Court 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 case and Amit Kumar case – This Court can also, in exercise of power u/Art. 142(1) can also quash and set aside other proceedings and orders, including criminal proceedings.
Constitution of India – Art. 142 – Grant of divorce in case of irretrievable breakdown of marriage – Whether Supreme Court can grant divorce in exercise of power under Article 142(1), when there is complete and irretrievable breakdown of marriage in spite of the other spouses opposing the prayer – Held: The Court in exercise of power under Art.142(1), has the discretion to dissolve the marriage on the ground of its irretrievable breakdown – The Court’s discretionary power is to be exercised to do ‘complete justice’ to the parties – The 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 – The Supreme 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. Hindu Marriage Act, 1955 – Irretrievable breakdown of marriage – Determination of – Held: 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 legal proceedings from time to time, cumulative impact on the personal relationship; whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation, and when the last attempt was made, etc. – The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor – Question of custody and welfare of minor children are also to be considered – Some of the factors mentioned can be taken as illustrative, and worthy of consideration – The factors are not codified – The exercise of jurisdiction u/Art. 142(1) is situation specific.
Constitution of India – Art.32 – Whether a party can directly canvass before the Supreme Court on the ground of irretrievable breakdown, by filing a writ petition under Art. 32 of the Constitution – Held: The parties should not be permitted to circumvent the procedure by resorting to the writ jurisdiction u/Art. 32 or 226 – The remedy of a person aggrieved by the decision of the competent judicial forum is to approach the superior forum for redressal of his grievance – Relief u/Art. 32 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 u/Art. 32 of the Constitution of India – The view regarding the same in Poonam v. Sumit Tanwar is accepted.
Judgment/Order – Clarification – Held: It is clarified that reference in Poonam v. Sumit Tanwar 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.
Answering the reference, the Court
HELD: The scope and ambit of power and jurisdiction of this Court under Article 142(1) of the Constitution of India;
1. 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, 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. Difference between procedural and substantive law in jurisprudential terms is contentious, albeit not necessary to be examined in depth in the present decision, as in terms of the dictum enunciated by this Court in Union Carbide Corporation and Supreme Court Bar Association, 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 provisions of substantive law based on fundamental considerations of general or specific public policy. As explained in Supreme Court Bar Association, the exercise of power under Article 142(1) of the Constitution of India being curative in nature, this Court would not ordinarily pass an order ignoring or disregarding a statutory provision governing the subject, except to balance the equities between conflicting claims of the litigating parties by ironing out creases in a ‘cause or matter’ before it. In this sense, this Court is not a forum of restricted jurisdiction when it decides and settles the dispute in a ‘cause or matter’. While this Court cannot supplant the substantive law by building a new edifice where none existed earlier, or by ignoring express substantive statutory law provisions, it is a problem-solver in the nebulous areas. As long as ‘complete justice’ required by the ‘cause or matter’ is achieved without violating fundamental principles of general or specific public policy, the exercise of the power and discretion under Article 142(1) is valid and as per the Constitution of India. This is the reason why the power under Article 142(1) of the Constitution of India is undefined and uncatalogued, so as to ensure elasticity to mould relief to suit a given situation. The fact that the power is conferred only on this Court is an assurance that it will be used with due restraint and circumspection. [Para 13][188-F; 189-A-C; 190-A-F]
2. Question as to the power and jurisdiction of this Court under Article 142(1) of the Constitution of India is answered 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’. [Para 42][212-D-E] Whether Court, while hearing a transfer petition, or in any other proceedings, can exercise power under Article 142(1) of the Constitution of India, 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 Protection of Women from Domestic Violence Act, 2005, Section 125 of the Code of Criminal Procedure, 1973, or criminal prosecution primarily under Section 498-A and other provisions of the Indian Penal Code, 1860. 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;
3.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, when and in which of the cases the power should be exercised to do ‘complete justice’ in a ‘cause or matter’ is an issue that has to be determined independent of existence of the power. This discretion has to be exercised on the basis of the factual matrix in the particular case, evaluated on objective criteria and factors, without ignoring the objective of the statutory provisions. [Para 20][196-C-D]
4. Section 13-B of the Hindu Marriage Act does not impose any fetters on the powers of this Court to grant a decree of divorce by mutual consent on a joint application, when the substantive conditions of the Section are fulfilled and the Court, after referring to the factors mentioned above, is convinced and of the opinion that the decree of divorce should be granted. [Para 21][197-AB]
5. The legislature and the Courts treat matrimonial litigations as a special, if not a unique category. Public policy underlying the legislations dealing with family and matrimonial matters is to encourage mutual settlement, as is clearly stated in Section 89 of the C.P.C., 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. The courts must not encourage matrimonial litigation, and prolongation of such litigation is detrimental to both the parties who lose their young age in chasing multiple litigations. Thus, adopting a hyper-technical view can be counter-productive as pendency itself causes pain, suffering and harassment and, consequently, it is the duty of the court to ensure that matrimonial matters are amicably resolved, thereby bringing the agony, affliction, and torment to an end. In this regard, the courts only have to enquire and ensure that the settlement between the parties is achieved without pressure, force, coercion, fraud, misrepresentation, or undue influence, and that the consent is indeed sought by free will and choice, and the autonomy of the parties is not compromised. In view of the above legal position and discussion, Supreme Court, on the basis of settlement between the parties, while passing a decree of divorce by mutual consent, can set aside and quash other proceedings and orders, including criminal cases and First Information Report(s), provided the conditions, as specified in the various judgments, are satisfied. [Para 22][197-B-D; 198-A, D]
6. 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 and Amit Kumar. 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. [Para 42][213-C-D] 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.
7. This Court would not read the provisions of the Hindu Marriage Act, their underlying intent, and any fundamental specific issue of public policy, as barring this Court from dissolving a broken and shattered marriage in exercise of the Constitutional power under Article 142(1) of the Constitution of India. If at all, the underlying fundamental issues of public policy, as explained in the judgments of V. Bhagat, Ashok Hurra, and Naveen Kohli, support the view that it would be in the best interest of all, including the individuals involved, to give legality, in the form of formal divorce, to a dead marriage, otherwise the litigation(s), resultant sufferance, misery and torment shall continue. Therefore, apportioning blame and greater fault may not be the rule to resolve and adjudicate the dispute in rare and exceptional matrimonial cases, as the rules of evidence under the Evidence Act are rules of procedure. When the life-like situation is known indubitably, the essence and objective behind section 13(1)(i-a) of the Hindu Marriage Act that no spouse should be subjected to mental cruelty and live in misery and pain is established. These rules of procedure must give way to ‘complete justice’ in a ‘cause or matter’. Fault theory can be diluted by this Court to do ‘complete justice’ in a particular case, without breaching the selfimposed restraint applicable when this Court exercises power under Article 142(1) of the Constitution of India. [Para 30][205C-F]
8. It is clearly stated 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 legal proceedings from time to time, cumulative impact on the personal relationship; whether, and how many attempts were made to settle the disputes by intervention of the court or through mediation, and when the last attempt was made, etc. The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor. But these facts have to be evaluated keeping in view the economic and social status of the parties, including their educational qualifications, whether the parties have any children, their age, educational qualification, and whether the other spouse and children are dependent, in which event how and in what manner the party seeking divorce intends to take care and provide for the spouse or the children. Question of custody and welfare of minor children, provision for fair and adequate alimony for the wife, and economic rights of the children and other pending matters, if any, are relevant considerations. This Court would not like to codify the factors so as to curtail exercise of jurisdiction under Article 142(1) of the Constitution of India, which is situation specific. Some of the factors mentioned can be taken as illustrative, and worthy of consideration. [Para 33][207-C-G; 208-A]
9. 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. [Para 42][213-F-G]
10. This Court is of the opinion that the decisions of this Court in Manish Goel , Neelam Kumar , Darshan Gupta , Hitesh Bhatnagar, Savitri Pandey 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, this Court 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. [Para 40][211-B-D]
11. Lastly, this Court must express its 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, 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. 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. [Para 41][211E-G; 212-A] M. Siddiq (Dead) Through Legal Representatives (Ram Janmabhumi Temple Case) v. Mahant Suresh Das and Others (2020) 1 SCC 1 : [2019] 18 SCR 1; Prem Chand Garg and Another v. The Excise Commissioner, U.P. and Others AIR 1963 SC 996 : [1963] Suppl. SCR 885; Supreme Court Bar Association v. Union of India and Another (1998) 4 SCC 409 : [1998] 2 SCR 795 –
followed.
Union Carbide Corporation and Others v. Union of India and Others (1991) 4 SCC 584 : [1991] 1 Suppl. SCR 251; Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746 : [2017] 8 SCR 925; Amit Kumar v. Suman Beniwal (2021) SCC Online SC 1270 – relied on. Poonam v. Sumit Tanwar (2010) 4 SCC 460 : [2010] 3 SCR 557 – affirmed.
Manish Goel v. Rohini Goel (2010) 4 SCC 393 : [2010]
2 SCR 414; Anjana Kishore v. Puneet Kishore (2002)
10 SCC 194; Pradip Chandra Parija and Others v. Pramod Chandra Patnaik and Others (2002) 1 SCC 1 : [2001] 5 Suppl. SCR 460; State (Through Central Bureau of Investigation) v. Kalyan Singh (Former Chief Minister of Uttar Pradesh) and Others (2017) 7 SCC
444 : [2017] 6 SCR 946; I. C. Golak Nath and Others v. State of Punjab and Another AIR 1967 SC 1643 : [1967] SCR 762; B.S. Joshi and Others v. State of Haryana and Another (2003) 4 SCC 675 : [2003] 2 SCR 1104; Gian Singh v. State of Punjab and Another (2012) 10 SCC 303 : [2012] 8 SCR 753; Jitendra Raghuvanshi and Others v. Babita Raghuvanshi and Another (2013) 4 SCC 58 : [2013] 2 SCR 921; State of Madhya Pradesh v. Laxmi Narayan and Others (2019)
5 SCC 688 : [2019] 2 SCR 864; N.G. Dastane v. S. Dastane (1975) 2 SCC 326 : [1975] 3 SCR 967;
V. Bhagat v. D. Bhagat (1994) 1 SCC 337 : [1993] 3 Suppl. SCR 796; Ashok Hurra v. Rupa Bipin Zaveri (1997) 4 SCC 226 : [1997] 2 SCR 875; Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558 : [2006] 3 SCR 53; Munish Kakkar v. Nidhi Kakkar (2020) 14 SCC 657 : [2019] 15 SCR 169; Sivasankaran v. Santhimeenal 2021 SCC OnLine SC 702; R. Srinivas Kumar v. R. Shametha (2019) 9 SCC 409 : [2019] 12 SCR 873; Hitesh
Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234 : [2011] 6 SCR 118; Sureshta Devi v. Om Prakash (1991)
2 SCC 25 : [1991] 1 SCR 274; Smruti Pahariya v. Sanjay Pahariya (2009) 13 SCC 338 : [2009] 8 SCR 631; Shyam Sundar Kohli v. Sushma Kohli Alias Satya Devi (2004) 7 SCC 747; Darshan Gupta v. Radhika Gupta (2013) 9 SCC 1 : [2013] 10 SCR 937; Gurbux Singh v. Harminder Kaur (2010) 14 SCC 301 : [2010]
12 SCR 275; Neelam Kumar v. Dayarani (2010) 13 SCC 298; Satish Sitole v. Ganga (2008) 7 SCC 734 : [2008] 10 SCR 767; Vishnu Dutt Sharma v. Manju Sharma (2009) 6 SCC 379 : [2009] 3 SCR 891; Savitri Pandey v. Prem Chandra Pandey (2002) 2 SCC 73 : [2002] 1 SCR 50; Jorden Diengdeh v. S.S. Chopra (1985) 3 SCC 62 : [1985] 1 Suppl. SCR 704 – referred to.
Horton v. Horton [1940] P.187; Owens v. Owens (2018) UKSC 41 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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