2010 (2) TMI 1275 - SC - Indian Laws

Petition for divorce by mutual consent - Petition filed under Article 136 - Whether petitioner right to approach this Court against the order of the Family Court? - waiver of statutory period of six months in filing the second petition - waiver was permissible - HELD THAT - Parties got married and as they could not bear each other, started living separately. There had been claims and counter claims, allegations and criminal prosecution between them. Petitioner approached the Competent Court at Gurgaon for dissolution of marriage. Admittedly, that case is still pending consideration. Parties filed the petition for divorce by mutual consent only in November 2009 before the Family Court. Learned counsel for the petitioner could not explain as to how the case for divorce could be filed before the Family Court, during the pendency of the case for divorce before the Gurgaon Court. Such a procedure adopted by the petitioner amounts to abuse of process of the court. Petitioner has approached the different forums for the same relief merely because he is very much eager and keen to get the marriage dissolved immediately even by abusing the process of the Court. In Jai Singh v. Union of India 1976 (11) TMI 195 - SUPREME COURT , this Court while dealing with a similar issue held that a litigant cannot pursue two parallel remedies in respect of the same matter at the same time. This judgment has subsequently been approved by this Court in principle but distinguished on facts in Awadh Bihari Yadav v. State of Bihar 1995 (8) TMI 320 - SUPREME COURT and Arunima Baruah v. Union of India 2007 (4) TMI 695 - SUPREME COURT . Even otherwise, the statutory period of six months for filing the second petition u/s 13-B(2) of the Act has been prescribed for providing an opportunity to parties to reconcile and withdraw petition for dissolution of marriage. Learned counsel for the petitioner is not able to advance arguments on the issue as to whether, statutory period prescribed u/s 13-B(1) of the Act is mandatory or directory and if directory, whether could be dispensed with even by the High Court in exercise of its writ/appellate jurisdiction. Thus, this is not a case where there has been any obstruction to the stream of justice or there has been injustice to the parties, which is required to be eradicated, and this Court may grant equitable relief. Petition does not raise any question of general public importance. None of contingencies, which may require this Court to exercise its extraordinary jurisdiction under Article 142 of the Constitution, has been brought to our notice in the case at hand. Thus, in view of the above, we do not find any justification to entertain this petition. It is accordingly dismissed.

Issues Involved:
1. Abuse of Court Process
2. Jurisdiction under Article 136 of the Constitution
3. Exercise of Powers under Article 142 of the Constitution
4. Statutory Period under Section 13-B(2) of the Hindu Marriage Act, 1955
5. Parallel Remedies

Detailed Analysis:

1. Abuse of Court Process:
The Supreme Court observed that the parties, despite being highly qualified, misused and abused the court process. The husband, possessing qualifications of CA, CS, and ICWA, and the wife, a Doctor (M.D., Radio-Diagnosis), got married on 23rd July 2008 but started living separately from 24.10.2008. The husband filed a matrimonial case for annulment of marriage under Section 12 of the Hindu Marriage Act, 1955, while the wife filed a petition under Section 12 read with Section 23 of the Domestic Violence Act, 2005, and lodged an FIR under Sections 498-A, 406, and 34 of IPC. The Court noted that the husband's approach to different forums for the same relief amounted to an abuse of the court process.

2. Jurisdiction under Article 136 of the Constitution:
The petitioner argued that there was no prohibition in law against entertaining a petition under Article 136 of the Constitution against the order of the Family Court. Article 136 provides the Supreme Court with discretionary power to grant special leave to appeal from any judgment, decree, determination, sentence, or order. The Court emphasized that this power is extraordinary and should be exercised with great care and caution, considering the principles of justice and duty. It is not a vested right and should be used to eradicate substantial and grave injustice.

3. Exercise of Powers under Article 142 of the Constitution:
The petitioner contended that under Article 142, the Supreme Court could pass any order to do complete justice between the parties, including granting a decree of divorce even if statutory requirements were not met. The Court acknowledged its power under Article 142 to dissolve marriages in cases where the marriage was unworkable, emotionally dead, and beyond salvage. However, it reiterated that such power should not contravene statutory provisions and should be exercised sparingly in exceptional cases. The Court cited several precedents where it had exercised this power but also noted judgments where such exercise was deemed legislative overreach and thus impermissible.

4. Statutory Period under Section 13-B(2) of the Hindu Marriage Act, 1955:
The Family Court rejected the parties' application to waive the statutory six-month period required for filing the second petition for divorce by mutual consent, as per Section 13-B(2) of the Act. The Supreme Court upheld this decision, emphasizing that the statutory period is meant to provide an opportunity for reconciliation. The Court noted that the petitioner failed to explain why the divorce case was filed in Delhi while another case was pending in Gurgaon, indicating an attempt to expedite the dissolution of marriage improperly.

5. Parallel Remedies:
The Court highlighted that pursuing parallel remedies in different forums for the same relief is an abuse of the court process. The petitioner's eagerness to dissolve the marriage immediately led to multiple filings, which the Court deemed inappropriate. The Court referenced previous judgments, such as Jai Singh v. Union of India, which held that a litigant cannot pursue two parallel remedies simultaneously.

Conclusion:
The Supreme Court dismissed the petition, finding no justification to entertain it. The Court concluded that none of the contingencies requiring the exercise of its extraordinary jurisdiction under Article 142 were present. The petition did not raise any question of general public importance, and there was no obstruction to justice that warranted intervention. The statutory period for reconciliation under Section 13-B(2) was mandatory and could not be waived by the High Court or any other court except the Supreme Court under Article 142.

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