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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 ..... pecific 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 crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;. 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 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 Pradip Chandra Parija and Ors. (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overy, 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 between the parties. Given the expansive amplitude of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled 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 should not disregard the substantive mandate of law based on underlying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts 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 prohibitions or limitations on the constitutional powers Under Article 142. Such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was no conflict of ratios as elucidated in Union Carbide Corporation (supra) and other cases. It is one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve somethin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of the public, for the simple reason that no legislation is capable of contemplating all possible circumstances that may arise in future litigation and consequently prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents 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 Association (supra), this Court observes that any prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional power of this Court to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bide 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 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 ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lemnized 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 on fulfilment of the following conditions: (a) the parties have been living separately for a period of one year or more before presentation of the petition; (b) they have not been able to live together; and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 separately for a period of one year or more and if they have not been able to live together and have agreed that the marriage be dissolved. Section 13-B(2) is procedural. He submitted that the discretion to waive the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 proceedings between the parties, civil and criminal, are appropriately dealt with in terms of the settlement, and are decreed, quashed or closed accordingly. This situation arises when proceedings are pending in this Court against an interim or a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 parties had time to ponder, reflect and take a conscious decision on whether they should really put the marriage to end for all times to come. This period of separation prevents impulsive and heedless dissolution of marriage, allows tempers to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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. The latte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisfied 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 provisions of the Indian Evidence Act, 1972, held that the fact is said to be established if it is proved by a preponderance of probabilities, that is, the court believes it to exist or considers its existence so probable that a prudent man ought to, under the circumstances of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 highlighted that cruelty contemplated Under Section 13(1)(i-a) of the Hindu Marriage Act is both mental and physical, albeit a comprehensive definition of what constitutes cruelty would be most difficult. Much depends upon the knowledge and intention of the defending spouse, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 the marriage had fallen apart and the couple had separated in 1983. They did not have any specific issue, but difference of opinion had cropped up between the parties. Further, even after residing separately for thirteen years, the parties were not agreeable to a divorce by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 maintained, but where the marriage has been wrecked beyond the hope of salvage, public interest lies in recognising the real fact. No spouse can be compelled to resume life with a consort, and as such, nothing is gained by keeping the parties tied forever to a marriage which has, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty 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 in practical reality the situation is appalling and unnerving. The marriage is irretrievably broken down and dead. We 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 fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 was also directed that the Appellant - husband would continue to pay the specified amount per month to the Respondent - wife, which amount could be enhanced or reduced by taking recourse to appropriate proceedings. 32. In Sivasankaran (supra), the marriage had taken place in February 2002, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m 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. We 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roved 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 Court is convinced beyond any doubt that there is absolutely no chance in the marriage surviving and that it had broken beyond repair. Nevertheless, the bench deemed it appropriate to state that they have not finally expressed any opinion on the issue of the power Under Article 142 of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble 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 reform of the law of marriage and for a uniform law applicable to all, irrespective of religion and caste, as well as the need to introduce irretrievable breakdown of marriage as a ground for divorce. Jorden Diengdeh (supra) observes that no purpose would be served by continuing a marriage that has completely and si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 marriage directly from this Court. While we accept the said view, we also clarify that reference in Poonam (supra) to Manish Goel (supra) 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 by us. Conclusion. 42. In view of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers, 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 of equity, is required to also balance the circumstances and the background in which the party opposing the dissolution is placed. 43. For the foregoing reasons, Transfer Petition (Civil) No. 1118 of 2014, Transfer Petition (Criminal) No. 382 of 2014, Transfer Petition (Criminal) No. 468 of 2014, and Transfer Petition (Civil) Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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