Rakesh Malviya, wherein a bench of two judges had doubted the view expressed in Anjana Kishore v. 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. Similarly, the issue as to 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 also requires consideration by the Constitution Bench.” However, in view the conflicting ratio of the judgments of this Court on the applicability of the power and jurisdiction of this Court under Article 142 of the Constitution of India, the two judges’ bench of this Court deferred the transfer petition to remain pending for statistical purposes, and formulated the following questions of law to be decided by a three judges’ bench: “ Notwithstanding the above order passed by us, for the purposes of statistics the present transfer petitions shall remain pending as we are of the view that an issue of some importance needs to be addressed by the Court in view of the huge number of requests for exercise of power under Article 142 of the Constitution that has confronted this Court consequent to settlement arrived at by and between the husband and the wife to seek divorce by mutual consent. 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.” Thereafter, vide the order dated 29.06.2016, another bench of two judges of this Court, on examining the questions formulated in T.P.
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This Constitution Bench, after hearing the parties, vide the order dated 20.09.2022, had deemed it appropriate to formulate another question of law, which reads thus: “ We do believe that another question which would require consideration would be whether the power under Article 142 of the Constitution of India is inhibited in any manner in a scenario where there is an irretrievable breakdown of marriage in the opinion of the Court but one of the parties is not consenting to the terms.” Accordingly, the following substantial questions of law arise for consideration before us: (i) The scope and ambit of power and jurisdiction of this Court under Article 142(1) of the Constitution of India; (ii) Secondly, in view of, and depending upon the findings of this bench on the first question, whether this 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 If the answer to this question is in the affirmative, in which cases and under what circumstances should this Court exercise jurisdiction under Article 142(1) of the Constitution of India is an ancillary issue to be decided; and (iii) The third issue, which is of considerable importance, is whether this Court can grant divorce in exercise of power under Article 142(1) of the Constitution of India when there is complete and irretrievable breakdown of marriage in spite of the other spouse opposing the prayer. Article 142(1) of the Constitution of India, 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. …
The phrase ‘is necessary for doing complete justice’ is of a wide amplitude and encompasses a power of equity which is employed when the strict application of the law is inadequate to produce a just outcome.
Courts may find themselves in situations where the silences of the law need to be infused with meaning or the rigours of its rough edges need to be softened for law to retain its humane and compassionate face…” Words in the above quotation that ‘the equitable power under Article 142 of the Constitution of India brings to fore the intersection between the general and specific’ laws, should be read as making a reference to the classification of equity by Professor C.K. 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.
Clearly, when this Court exercises jurisdiction conferred by Article 142(1) of the Constitution of India to do ‘complete justice’ in a ‘cause or matter’, it acts within the four corners of the Constitution of India. 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. Prohibitions or limitations or provisions contained in ordinary laws cannot, ipso facto, act as prohibitions or limitations on the constitutional powers under Article 142.
Perhaps, the proper way of expressing the idea is that in exercising powers under Article 142 and in assessing the needs of “complete justice” of a cause or matter, the apex Court will take note of the express prohibitions in any substantive statutory provision based on some fundamental principles of public policy and regulate the exercise of its power and discretion accordingly. It is one thing to state that prohibitions or limitations cannot come in the way of the exercise of jurisdiction under Article 142(1) of the Constitution of India to do ‘complete justice’ between the parties in the pending ‘cause or matter’ arising out of that statute, but quite a different thing to say that, while exercising jurisdiction under Article 142(1) of the Constitution of India, this Court can altogether ignore the substantive provisions of the statute dealing with the subject and pass orders concerning an issue which can be settled only through a mechanism prescribed in the statute. This Court, in Supreme Court Bar Association (supra), has highlighted that the jurisdiction of the Supreme Court in contempt, and the jurisdiction of the State Bar Councils under the Advocates Act, 1961 are separate and distinct, and are exercisable by following separate and distinct procedures. 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.
Punishing a contemner advocate, while dealing with a contempt of court case by suspending his licence to practice, a power otherwise statutorily available only to the Bar Council of India, on the ground that the contemner is also an advocate, is, therefore, not permissible in exercise of the jurisdiction under Article 142. The Supreme Court in exercise of its jurisdiction under Article 142 has the power to make such order as is necessary for doing complete justice “between the parties in any cause or matter pending before it”. Indeed, these constitutional powers cannot, in any way, be controlled by any statutory provisions but at the same time these powers are not meant to be exercised when their exercise may come directly in conflict with what has been expressly provided for in a statute dealing expressly with the subject.” We must, at this stage, as noticed in Union Carbide Corporation (supra), draw a distinction between the Constitutional power exercisable by this Court under Article 142(1) of the Constitution of India, and the inherent power of the civil court recognised by Section 151 of the C.P.C.
should not be read as to limit or otherwise affect the inherent power of the civil court and the High Court, respectively, to make such order as is necessary for the ‘ends of justice’, or to prevent abuse of the process of the court.
The Constitutional power conferred by Article 142(1) of the Constitution of India on this Court is not a replication of the inherent power vested with the civil court under the C.P.C., and the High Court under the Cr.P.C. Given the aforesaid background and judgments of this Court, the plenary and conscientious power conferred on this Court under Article 142(1) of the Constitution of India, seemingly unhindered, is tempered or bounded by restraint, which must be exercised based on fundamental considerations of general and specific public policy. 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. 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. The effect of the said amendment, as noticed below, partially dilutes the rigours of sub- section (1)(a) to Section 23 of the Hindu Marriage Act, which stipulates that the court, while examining whether any ground for granting relief exists, should be satisfied that the petitioner is not, in any way, taking advantage of his/her own wrong or disability for the purpose of such relief. Divorce by mutual consent.—(1)
Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. Sub-section (2) to Section 13-B of the Hindu Marriage Act provides that after the first motion is passed, the couple/parties would have to move to the court with the second motion, if the petition is not withdrawn in the meanwhile, after six months and not later than eighteen months of the first motion.
These are cases where the object and purpose behind sub-section (2) to Section 13-B of the Hindu Marriage Act to safeguard against hurried and hasty decisions are not in issue and question, and the procedural requirement to move the court with the second motion after a gap of six months acts as an impediment in the settlement. 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. 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. He submitted that the discretion to waive the period is a guided discretion by consideration of interest of justice where there is no chance of reconciliation and parties were already separated for a longer period or contesting proceedings for a period longer than the period mentioned in Section 13-B(2). Applying the above to the present situation, we are of the view that where the court dealing with a matter is satisfied that a case is made out to waive the statutory period under Section 13-B(2), it can do so after considering the following: (i) the statutory period of six months specified in Section 13-B(2), in addition to the statutory period of one year under Section 13-B(1) of separation of parties is already over before the first motion itself; (ii) all efforts for mediation/conciliation including efforts in terms of Order 32-A Rule 3 CPC/Section 23(2) of the Act/Section 9 of the Family Courts Act to reunite the parties have failed and there is no likelihood of success in that direction by any further efforts; (iii) the parties have genuinely settled their differences including alimony, custody of child or any other pending issues between the parties; (iv) the waiting period will only prolong their agony.
If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the court concerned.” The time gap is meant to enable the parties to cogitate, analyse and take a deliberated decision. 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. Power of this Court under Articles 136 and 142(1) of the Constitution of India will certainly embrace and enswathe this power to do ‘complete justice’, even when the main case/proceeding is pending before the family court, the trial court or another judicial forum. Existence of power is generally a matter of law, whereas exercise of power is a mixed question of law and facts. Suman Beniwal, 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. In our opinion, 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. 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.
State of Punjab and Another and reiterated by another three judges’ bench in Jitendra Raghuvanshi and Others v. Laxmi Narayan and Others, has set out guidelines as to when the High Court may exercise jurisdiction under the inherent powers conferred under Section 482 of the Cr.P.C. This brings us to the last question of whether this Court, in exercise of power under Article 142(1) of the Constitution of India, can grant a decree of divorce when, upon the prayer of one of the spouses, it is satisfied that there is complete and irretrievable breakdown of marriage, notwithstanding the opposition to such prayer by the other spouse? — (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 [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. Dastane, 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 particular case, act upon the supposition that it exists. Accordingly, this Court elucidated that if the danger to health arises merely from the fact that the spouses find it impossible to live together and one of the parties is indifferent towards the other, the charge of cruelty may perhaps fail. In today’s context, two observations, while a court enquires into the charge of cruelty, are of some significance.
Much depends upon the knowledge and intention of the defending spouse, the nature of their conduct, the character and physical or mental weakness of the spouses, etc. Thus, there is a distinction between intention to commit cruelty and the actual act of cruelty, as absence of intention may not, in a given case, make any difference if the act complained of is otherwise regarded as cruel. Mental cruelty in Section 13(1)(i-a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other.
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. This Court, therefore, exercised the power under Article 142(1) of the Constitution of India to grant a decree of divorce, though the conduct of the husband, it was observed, was blameworthy as he had remarried and conceived a child during the pendency of the proceedings. While doing so, this Court affirmed that a set of facts stigmatized as cruelty in one case may not be so in another, as cruelty largely depends on the kind of lifestyle the parties are accustomed to or their social and economic conditions. 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. Therefore, the Court held that the marriage should be dissolved, as wisdom lies in accepting the pragmatic reality of life. As subjectivity is involved, the courts find it difficult to evaluate the gravity or otherwise of the conduct complained of and find the truth. 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. 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 from dissolving a broken and shattered marriage in exercise of the Constitutional power under Article 142(1) of the Constitution of India. Fault theory can be diluted by this Court to do ‘complete justice’ in a particular case, without breaching the self-imposed restraint applicable when this Court exercises power under Article 142(1) of the Constitution of India, as elucidated in the judgments referred to above. 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. In Sivasankaran (supra), the marriage had taken place in February 2002, and after about a year, divorce proceedings were initiated and the decree of divorce was passed in 2008 under Section 13(1)(i-a) of the Hindu Marriage Act.
Shametha, observed that there was no necessity of consent by both the parties for exercise of powers under Article 142(1) of the Constitution of India to dissolve the marriage on the ground of irretrievable breakdown of marriage, albeit the interest of the wife is also required to be protected financially so that she may not have to suffer financially in future and she may not have to depend upon others.
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. 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. In Manish Goel (supra), a division bench of this Court has held that power and jurisdiction under Article 136 of the Constitution of India, though couched in the widest possible terms and plenary in nature, is discretionary. Further, the two judges’ bench did not exercise extraordinary jurisdiction under Article 142(1) of the Constitution of India, observing that it was not a case where there was any obstruction to the stream of justice, or there was injustice to the parties requiring the court to grant equitable relief. Sub-section (2) to Section 13-B of the Hindu Marriage Act does not specify the time period for withdrawal of consent. Sushma Kohli alias Satya Devi, the bench had refused to grant divorce on the ground of irretrievable breakdown of marriage, but also observed that only in extreme circumstances would this Court dissolve the marriage on this ground. Ganga, wherein the marriage was dissolved in exercise of the power under Article 142 of the Constitution of India on the ground of its irretrievable breakdown, but the submission was not accepted in Neelam Kumar (supra) on the reason that there was nothing to indicate that the respondent was, in any way, responsible for the breakdown of marriage. 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 view of our findings recorded above, we are of the opinion that the decisions of this Court in Manish Goel (supra), Neelam Kumar (supra), Darshan Gupta (supra), Hitesh Bhatnagar (supra), Savitri Pandey (supra) 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.
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. 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. This question as to the power and jurisdiction of this Court under Article 142(1) of the Constitution of India is answered in terms of paragraphs 8 to 13, inter alia, 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. In view of, and depending upon the findings of this bench on the first question, whether this Court, while hearing a transfer petition, or in any other proceedings, can exercise power under Article 142(1) of the Constitution, in view of the settlement between the parties, and grant a decree of divorce by mutual consent dispensing with the period and the procedure prescribed under Section 13-B of the Hindu Marriage Act, and also quash and dispose of other/connected proceedings under the Domestic Violence Act, Section 125 of the Cr.P.C., or criminal prosecution primarily under Section 498-A and other provisions of the I.P.C. (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? For the foregoing reasons, Transfer Petition (Civil) No 1118 of 2014, Transfer Petition (Criminal) No 382 of 2014, Transfer Petition (Criminal)
Case Title: SHILPA SAILESH Vs. VARUN SREENIVASAN (2023 INSC 468)
Case Number: T.P.(C) No.-001118-001118 / 2014
