CASE DETAILS:
| Bench Sanjay Kishan Kaul J. Sanjiv Khanna J. Abhay S. Oka J. Vikram Nath J. J. K. Maheshwari J. | Case no. (2023) SCC Online SC 544 | Acts/law Hindu Marriage Act Constitution of India |
INTRODUCTION:
In SHILPA SAILESH vs. VARUN SREENIVASAN constitution bench of 5 judges dealt with an issue concerning the ambit of power of the apex court under Article 142 of the Constitution of India. The court ascertained whether the court has the power to waive 6 months for moving the second motion specified in section 13-B (2) of the Hindu Marriage Act, 1956. Whether the court can invoke Article 142(1) power and grant the divorce on the ground of irretrievable breakdown of the marriage. Whether any party can seek divorce on the said ground by directly approaching the apex court under Article 32 of the Constitution. Is the power to grant the divorce on this ground mandatory or discretionary?
ISSUES:
Following substantial question of law arises before 5 judges’ bench:
- What is the scope and ambit of power and jurisdiction of this Court under Article 142(1) of the Constitution of India? ;
- 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 Criminal Procedure Code, 1973, or criminal prosecution primarily under Section 498-A and other provisions of the Penal Code, 1860. If the answer to this question is in the affirmative, in which cases and under what circumstances should this Court exercise jurisdiction under Article 142(1) of the Constitution of India is an ancillary issue to be decided? ; and
- 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?
POWER UNDER ARTICLE 142 OF CONSTITUTION:
Relevant portion of Article 142 is read as under:
“142. Enforcement of decrees and 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.”
Court observed that Article 142 gives very wide power to supreme court to do “complete justice” in any “cause or matter”. Court referred M. Siddiq (Dead) Through Legal Representatives (Ram Janmabhumi Temple Case) v. Mahant Suresh Das (2020) 1 SCC 1 wherein court stated that “the equitable power under Article 142 of the Constitution brings to fore the intersection between the general and specific”.
This court referred to the classification of “equity” that is (i) equity in general and (ii) particular equity. The court also emphasized the word “cause and matter”, Article 142(1) empowers the Supreme Court to do complete justice in any “cause or matter” which is relatable to “particular equity”. Article 142 is based on the maxim “equity follows the law” as it allows the apex court to put equity over the law.
Court further specified I.C. Golak Nath v. State of Punjab AIR 1967 SC 1643 in the said case court scrutinized that power under Article 142 is wide and it enables the court to frame any doctrine to meet the ends of justice. However, when court invoke Article 142(1) to do complete justice in “cause or matter” it does so with in the 4 corners of Constitution.
Union Carbide Corporation v. Union of India (1991)4 SCC 584 court expressed that words ‘cause or matter’, when used together, cover almost every kind of proceedings in court, whether civil or criminal, interlocutory or final, before or after judgment. The Court ascertained that the power under Article 142 is of an entirely different level and any prohibition under ordinary law cannot act as a limitation on the constitutional power of the Supreme Court under Article 142.
In Prem Chand Garg v. The Excise Commissioner, U.P AIR (1963) SC 996 five judges bench observed that power under Article 142 can not be employed as an order inconsistent with the express substantive law or any constitutional provision. Further another 5 judges in Supreme Court Bar Association v. Union of India (1998) 4 SCC 409 court considered that there was no conflict in ratio of Union Carbide Corporation (supra) and Prem Chand Garg (supra) as 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.
Distinction between Article 142(1) & inherent power under 151 CPC and 482 CrPC.:
In para 15 court observed that sections 151 CPC and 482 of CrPC empower the civil and criminal courts respectively to exercise the inherent powers to “meet the ends of justice” or to prevent the abuse of the process of the court. The term “ends of justice” means in the interest of the public, the court invokes this jurisdiction when CPC and CrPC are silent on certain aspects and not otherwise inconsistent with these substantive laws. The reason behind such power is that it is not possible for any legislation to ordain law exhaustively therefore aforesaid provision specify the inherent power for the ends of justice.
In para no. 16 court witnessed that power under Article 142 should be exercised based on fundamental considerations of general and specific public policy. General public policy refers to fundamental rights, secularism, federalism and other basic feature of the Constitution and specific public policy means express prohibition under any substantive law.
There is no gainsay that under Article 142(1) court can do “complete justice” without being bound by any procedure court can depart from any procedure. It is 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.
In para 50 Court held as under:
While deciding whether to exercise discretion under Article 142(1), 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’.
DIVORCE UNDER HMA:
Section 13-B of HMA provide divorce by mutual consent and decree of divorce may be granted on a joint petition by the parties on fulfilment of the following conditions:
- The parties have been living separately for a period of one year or more before presentation of the petition;
- they have not been able to live together; and
- they have mutually agreed that the marriage should be dissolved.
Section 13-B clause (2) stipulates time period for parties to move to court for second motion of mutual divorce. After 6 months and not later than 8 months parties if they do not withdraw, the said case may move to the court for second motion. The reason being such time period is to avail the chance of reconciliation if possible.
Divorce under Article 142(1)
In certain cases, an interim order is under challenge or a transfer petition is pending before the Supreme Court and in the mean time parties are ready to settle and waive off the period envisaged under Section 13-B (2). The court in para 24 observed that under Article 142 (1) it is permissible to do complete justice to a “cause or matter”. Further court held that this court can pass a decrees which could be passed by the family court or trial court.
When divorce can be granted under Article 142(1)?
In para 25 court specified that there is a difference between the exercise of power and the existence of power when the court can exercise power under Article 142(1)to do the complete justice in a “cause or matter”. The existence of power is a matter of law whereas the exercise of power is a mix question of fact and law. There is no statutory bar under section 13-B which prohibits this court from exercising its power, additionally, this power should be exercised based on the factual matrix of each case.
Thus, the court in para 50 stated that this court can exercise power under article 142(1) and grant divorce in the view of settlement and court also have power to quash set aside rest of the pending proceedings.
Irretrievable breakdown of marriage:
Whether the court can grant a divorce under Article 142(1) on ground of irretrievable breakdown of marriage in a case where the other party is opposing divorce. Whether it is mandatory to grant the divorce on ground of an irretrievable breakdown of a marriage.
In para 41 court observed that irretrievable breakdown of marriage is not a matter of right but discretion of court and same should be granted based on the facts of the case, court observed that following factors should be considered to do complete justice:
- 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.
This bench has observed that it is discretion of court to grant divorce under Article 142(1) in case of irretrievable breakdown of marriage. Such power should be exercised to do complete justice based on the facts of the case.
Writ petition for irretrievable breakdown of marriage:
In para 49 court raised an issue whether a party can directly canvass before this Court the ground of irretrievable breakdown by filing a writ petition under Article 32 of the Constitution?
The bench in the present case rejected this remedy the reason being that the substantive law has provided the procedure to reach the appropriate forum to avail such rights. Parties should not be permitted to circumvent the procedure under the law by resorting to the writ jurisdiction under Articles 32 and 226 of the Constitution of India. Secondly, power under Article 32 is only exercised in a case when it is established that there is an abrogation of rights guaranteed in part III of the Constitution.