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TMI Blog2023 (5) TMI 1387X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . Whether the Supreme Court can waive or reduce the mandatory period under Section 13-B of the Hindu Marriage Act for divorce by mutual consent? - under what circumstances should this Court exercise jurisdiction Under Article 142 of the Constitution of India? - HELD 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 [ 2017 (9) TMI 2031 - SUPREME COURT ] and AMIT KUMAR VERSUS SUMAN BENIWAL [ 2021 (12) TMI 1507 - SUPREME COURT] . 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 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. 2. In T.P. (C) No. 1118 of 2014 Tagged with T.P. (Crl) No. 96 of 2014, T.P. (Crl) No. 339 of 2014, T.P. (Crl.) No. 382 of 2014, T.P. (Crl.) No. 468 of 2014 and T.P. (C) No. 1481 - 1482 of 2014, Shilpa Shailesh v. Varun Sreenivasan, a bench of two judges, vide the order dated 06.04.2015 T.P. (C) No. 1118 of 2014 along with T.P. (Crl.) No. 382 of 2014, T.P. (Crl.) No. 468 of 2014 and T.P. (C) No. 1481 - 1482 of 2014, issued notice to the Attorn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 Article 142 should not be made at all or whether such exercise should be left to be determined in the facts of every case. 5. Thereafter, vide the order dated 29.06.2016, another bench of two judges of this Court, on examining the questions formulated in T.P. (C) No. 1118 of 2014, referred to Article 145(3) of the Constitution of India, and relying on Pradip Chandra Parija and Ors. v. Pramod Chandra Patnaik and Ors. (2002) 1 SCC 1, accepted the submission made by the Attorney General for India to refer the questions formulated in T.P. (C) No. 1118 of 2014 for consideration of the Constitution Bench. We are not examining and commenting on the ratio expounded in Pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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. This provision, apparently unique as it does not have any counterpart in most of the major written constitutions of the world The Constitutions of Bangladesh and Nepal have provisions similar to Article 142 of the Constitution of India, suggesting that they have drawn inspiration from Article 142 of the Constitution of India., has its origin in and is inspired from the age-old concepts of justice, equity, and good conscience. Article 142(1) of the Constitution of India, which gives wide and capacious power to the Supreme Court to do 'complete justice' in any 'cause or matter' is significant, as the judgment delivered by this Court ends the litigation be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 'complete justice' in that 'cause or matter', are relatable to particular equity As this Court interprets the law and adjudicates specific cases, in many a case, it exercises and applies both equity in general and particular equity. Also see - distinction between 'cause' and 'matter'. This is the reason that it has been held that Article 142(1) of the Constitution of India turns the maxim 'equity follows the law' on its head, as this Article in the Constitution of India gives legal authority to this Court to give precedence to equity over law. This power, like all powers under the Constitution of India, must be contained and regulated, as it has been held that relief based on equity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : 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 as Antulay cases the point was one of violation of constitutional provisions and constitutional rights. The observations as to the effect of inconsistency with statutory provisions were really unnecessary in those cases as the decisions in the ultimate analysis turned on the breach of constitutional rights. We agree with Shri Nariman that the power of the Court Under Article 142 insofar as quashing of criminal proceedings are concerned is not exhausted by Section 320 or 321 or 482 Code of Criminal Procedure or all of them put together. The power Under Article 142 is at an entirely different level and of a different quality. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 reference to a larger bench does not prohibit this Court in a given case from its exercise of powers conferred Under Article 142 of the Constitution of India. of this Court, including Prem Chand Garg and Anr. v. The Excise Commissioner, U.P. and Ors. AIR 1963 SC 996, wherein five judges of the Constitution Bench had held that this power Under Article 142(1) of the Constitution of India cannot be employed to make an order plainly inconsistent with the express statutory provision or substantive law, much less inconsistent with any Constitutional provisions, was examined by another five judges' bench of this Court in Supreme Court Bar Association v. Union of India and Anr. (1998) 4 SCC 409, to observe that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay 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. There is no doubt that it is an indispensable adjunct to all other powers and is free from the restraint of jurisdiction and operates as a valuable weapon in the hands of the Court to prevent "clogging or obstruction of the stream of justice". It, however, needs to be remembered that the powers conferred on the Court by Article 142 being curative in nature cannot be construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to "supplant" substantive law applicable to the case or cause under consideration of the Court. Article 142, even with the width of its amplitude, cannot be used to build a new ed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 contrary to the procedure on the particular aspect of law provided in the Code of Civil Procedure and the Code of Criminal Procedure Where the Code of Civil Procedure and the Code of Criminal Procedure are silent, the civil court or the High Court, For Section 151 Code of Civil Procedure see - Jet Ply Wood (P.) Ltd. and Anr. v. Madhukar Nowlakha and Ors. (2006) 3 SCC 699; and Bhagat Singh Bugga v. Dewan Jagbir Sawhney, 1941 SCC OnLine Cal 247. For Section 482 Code of Criminal Procedure see - Popular Muthiah v. State Represented By Inspector Of Police, (2006) 7 SCC 296; and Dinesh Dutt Joshi v. State of Rajasthan and Anr. (2001) 8 SCC 570. respectively, can pass orders in the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 specific statutory provision and is limited to deviation from the Rules of procedure. Further, the direction must not infringe the Fundamental Rights of the individual, which proposition has never been doubted and holds good in phase two and three. The second phase has its foundation in the ratio of the judgment of the 11-Judge Constitution Bench of this Court in I.C. Golak Nath (supra), dealing with the doctrine of prospective overruling, which held that Articles 32, 141 and 142 are couched in such wide and elastic terms as to enable this Court to formulate legal doctrines to meet the ends of justice, the only limitation thereon being reason, restraint and injustice. In Delhi Judicial Service Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamined 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 provisions of substantive law based on fundamental considerations of general or specific public policy. As explained in Supreme Court Bar Association (supra), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 not earlier than six months after the date of the presentation of the petition referred to in Sub-section (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. 16. Section 13-B(1) of the Hindu Marriage Act states that a decree of divorce may be granted on a joint petition by the parties o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iage 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. It was held thus: 14. The learned Amicus Curiae submitted that waiting period enshrined Under Section 13-B(2) of the Act is directory and can be waived by the court where proceedings are pending, in exceptional situations. This view is supported by the judgments of the Andhra Pradesh High Court in K. Omprakash v. K. Nalini, Karnataka High Court in Roopa Reddy v. Prabhakar Reddy, Delhi High Court in Dhanjit Vadra v. Beena Vadra and Madhya Pradesh High Court in Dineshkumar Shukla v. Neeta. Contrary view has been taken by the Kerala High Court in M. Krishna Preetha v. Jayan Moorkkanatt. It was submitted that Section 13-B(1) relates to jurisdiction of the court and the petition is maintainable only if the parties are living sep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances 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 the marriage has shattered beyond repair. The judgment in Amardeep Singh (supra) refers to several questions that the court would ask before passing an order one way or the other. However, this judgment proceeds on the interpretation of Section 13-B(2) of the Hindu Marriage Act, and does not examine whether this Court can take on record a settlement agreement and grant divorce by mutual consent Under Section 13-B of the Hindu Marriage Act in exercise of the power Under Article 142(1) of the Constitution of India. 18. We must acknowledge that this Court has very often entertained applications/prayers for divorce by mutual consent Under Section 13-B of the Hindu Marriage Act, and passed a decree of divorce without relegating or asking the parties to move a joint motion before the trial court. In such cases, other pending pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifference 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. In Amit Kumar v. Suman Beniwal (2021) SCC Online SC 1270, this Court has held that reading of Sub-sections (1) and (2) to Section 13-B of the Hindu Marriage Act envisages a total waiting period/gap of one and a half years from the date of separation for the grant of decree of divorce by mutual consent. Once the condition for waiting period/gap of one and a half year from the date of separation is fulfilled, it can be safely said that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 when the ends of justice so require. This view has been affirmed by the three judges' bench in Gian Singh v. State of Punjab and Anr. (2012) 10 SCC 303 and reiterated by another three judges' bench in Jitendra Raghuvanshi and Ors. v. Babita Raghuvanshi and Anr. (2013) 4 SCC 58. The reason is that 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 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 grounds for granting relief exists and the Petitioner The bracketed portion was enacted vide Act No. 68 of 1976 with effect from 27.05.1976. [except in cases where the relief is sought by him on the ground specified in Sub-clause (a), sub-Clause (b) or Sub-clause (c) of Clause (ii) of Section 5] is not in anyway taking advantage of his or her own wrong or disability for the purpose of such relief, and xx xx xx The legal effect of Section 13(1)(i-a) read with Section 23 (1)(a) of the Hindu Marriage Act, it has been interpreted, invokes the 'fault theory', an aspect which we shall subsequently examine. First, we would like to delineate the meaning of the term 'cruelty', which expression has not been defined in the Hindu Marriage Act. 25. In N.G. Dastane v. S. Dastane (1975) 2 SCC 326, as early as 1975, a three judges' bench of this Court, after referring to the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot 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 set of circumstances. Cruelty is subjective, that is, it is person, background, and circumstance specific. 26. V. Bhagat v. D. Bhagat (1994) 1 SCC 337, which was pronounced in 1993, 18 years after the decision in N.G. Dastane (supra), gives a life-like expansion to the term 'cruelty'. This case was between a husband who was practicing as an Advocate, aged about 55 years, and the wife, who was the Vice President in a public sector undertaking, aged about 50 years, having two adult children - a doctor by profession and an MBA degree holder working abroad, respectively. Allegations of an adulterous course of life, lack of mental equilibrium and pathologically suspicious character were made against each other. This Court noticed that the divorce petition had remained pending for more than eight years, and in spite of the directions given by this Court, not much progress had been made. It was highl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 determined in each case having regard to the facts and circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made. The Division Bench of this Court in V. Bhagat (supra) has also observed that while irretrievable breakdown of marriage is not a ground for divorce, specific circumstances may have to be borne in mind while ascertaining the type of cruelty contemplated by Section 13(1)(i-a) of the Hindu Marriage Act. These observations, with which we agree, give a different connotation to the 'fault theory', as to dilute the strict legal understanding of the term 'cruelty' for the purpose of Section 13(1)(i-a) of the Hindu Marriage Act. This interpretation is situation, case and person specific. 27. In Ashok Hurra v. Rupa Bipin Zaveri (1997) 4 SCC 226, decided in 1997, this Court was confronted with a situation where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence 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 to the fault theory, which is hinged on an accusatorial principle of divorce. Excessive reliance on fault as a ground for divorce, the judges' opined, encourages matrimonial offences, increases bitterness and widens the ongoing rift between the parties. Once serious endeavours for reconciliation have been made, but it is found that the separation is inevitable and the damage is irreparable, divorce should not be withheld. An unworkable marriage, which has ceased to be effective, is futile and bound to be a source of greater misery for the parties. The law of divorce built predominantly on assigning fault fails to serve broken marriages. Under the fault theory, guilt has to be proven, and therefore, the courts have to be presented with concrete instances of adverse human behaviour, thereby maligning the institution of marriage. Public interest demands that the marriage status should, as far as possible, be maintai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ascertain the party to be blamed. On the other hand, cumulative effect of a great number of small incidents indicative of authoritarian, demeaning and humiliating conduct over a period of time would constitute a good ground for divorce. Such conduct can destroy the trust and confidence required to sustain a marriage. Further, the effect of the spouse's behaviour, rather than the behaviour itself, should make it unreasonable to expect the other spouse to cohabit; this is the question to be answered. 30. We have referred to the judgment in Owens (supra), which applies the then law in England and Wales, not as a precedent, but to highlight that even two perfectly gentle and pleasant individuals having incompatible and clashing personalities can have a miserable and morose married life. In such cases, fault theory in the pure form requiring apportionment of guilt and blame, is a difficult, if not an impossible task, whereas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mental and physical torture. Several attempts to mediate, and efforts made by counsellors, psychologists, the panchayat and even the courts did not yield results. In these circumstances, this Court exercised the power Under Article 142(1) of the Constitution of India, recognising the futility of a completely failed and broken down marriage. While observing that there was no consent of the Respondent - wife for grant of divorce, the Court felt that there was no willingness on her part either to live with the Appellant - husband. What was left in the marriage were bitter memories and angst, which increased with the passage of time, as the Respondent - wife was reluctant to let the Appellant - husband live his life by getting a decree of divorce. In view of the aforesaid position, this Court exercised the power Under Article 142(1) of the Constitution of India to do 'complete justice' between the parties. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 matt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orce 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 passed. This ratio has been approved by a three judges' bench in Smruti Pahariya v. Sanjay Pahariya (2009) 13 SCC 338. Consequently, following these judgments, Hitesh Bhatnagar (supra) opines that a decree of divorce cannot be passed as the second motion, which is a requirement in law, was never moved by both the parties. It is also observed that non- withdrawal of consent within 18 months, the period stipulated in Sub-section (2) to Section 13-B of the Hindu Marriage Act, has no bearing as this period of 18 months is specified only to ensure quick disposal of cases of divorce by mutual consent. Sub-section (2) to Section 13-B of the Hindu Marriage Act does not specify the time period for withdrawal of consent. Plea to grant divorce on the ground of irretrievable breakdown by invoking Article 142 of the Constitution of India was not entertained, albeit observing that this can be granted only in situations where the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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 SCC 379, this Court has held that irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act. However, Vishnu Dutt Sharma (supra) did not determinatively enunciate on the jurisdiction Under Article 142(1) of the Constitution of India. The judgment in Neelam Kumar (supra) acknowledges that in Satish Sitole (supra), this Court did exercise jurisdiction Under Article 142(1) of the Constitution of India to dissolve the marriage, as it was in the interest of the parties. In the facts of Neelam Kumar (supra), the bench was not inclined to accede to the request of granting divorce in exercise of the power conferred by Article 142(1) of the Constitution of India. 39. The judgment in Savitri Pandey v. Prem Chandra Pandey (2002) 2 SCC 73 refers to an earlier decision of this Court in Jorden Diengdeh v. S.S. Chopra (1985) 3 SCC 62, in which the two judges' bench had suggested a complete r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orce 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 and Ors. v. State Of Madhya Bharat (Now Madhya Pradesh) and Ors. AIR 1960 SC 768; Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC 1621; and Naresh Shridhar Mirajkar and Ors. v. State of Maharashtra and Anr. 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (iii) 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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