MUTUAL DIVORCE SIX MONTHS COMPULSORY

              MANISH GOEL
                                     v.
                              ROHINI GOEL
               (Special Leave Petition (C) No. 2954 of 2010)
                            FEBRUARY 5, 2010
                   [Aftab Alam and Dr. B.S. Chauhan, JJ.]
                             2010 (2) SCR 414






   The Order of the Court was delivered by


                                   ORDER


   DR. B.S. CHAUHAN, J. 1. This case reveals a very sorry state of affairs
that the parties, merely being highly qualified, have claimed even to be higher
and above the law, and have a vested right to use, misuse and abuse the
process of the Court. Petitioner, the husband, possesses the qualifications of
CA, CS and ICWA, while the proforma respondent-wife is a Doctor (M.D.,
Radio-Diagnosis) by profession. The parties got married on 23rd July, 2008 in
Delhi. Their marriage ran into rough weather and relations between them
became strained immediately after the marriage and they are living
separately since 24.10.2008. Petitioner-husband filed a Matrimonial Case
under Section 12 of the Hindu Marriage Act, 1955 (hereinafter called as "the
Act") for annulment of marriage before a competent Court at Gurgaon. The
respondent-wife, Smt. Rohini Goel filed a petition under Section 12 r/w
Section 23 of the Domestic Violence Act, 2005 before the competent Court at
Delhi. An FIR was also lodged by her against petitioner-husband and his
family members under Sections 498-A, 406 and 34 of Indian Penal Code,
1860 at PS Janakpuri, New Delhi.


   2. It is stated at the Bar that by persuasion of the family members and
friends, the parties entered into a compromise and prepared a Memorandum
of Understanding dated 13.11.2009 in the proceedings pending before the
Mediation Centre, Delhi by which they agreed on terms and conditions
incorporated therein, to settle all their disputes and also for dissolution of their
marriage. The parties filed an application under Section 13-B(1) of the Act
before the Family Court, i.e. ADJ-04 (West) Delhi seeking divorce by mutual
consent. The said HMA No.456 of 2009 came before the Court and it
recorded the statement of parties on 16.11.2009. The parties moved another
HMA No. 457 of 2009 to waive the statutory period of six months in filing the
second petition. However, the Court rejected the said application vide order
dated 1.12.2009 observing that the Court was not competent to waive the
required statutory period of six months under the Act and such a waiver was
permissible only under the directions of this Court as held by this Court in Anil
Kumar Jain v. Maya Jain (2009) 10 SCC 415. Hence, this petition.


    3. The learned counsel for the petitioner submits that there is no
prohibition in law in entertaining the petition under Article 136 of the
Constitution against the order of the Family Court and in such an eventuality,
there was no occasion for the petitioner to approach the High Court as the
relief sought herein cannot be granted by any court other than this Court.
Thus, the petitioner has a right to approach this Court against the order of the
Family Court and the petitioner cannot be non-suited on this ground alone.


    4. Article 136 of the Constitution enables this Court, in its discretion to
grant special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court or
tribunal in the territory of India.


    Undoubtedly, under Article 136 in the widest possible terms, a plenary
jurisdiction exercisable on assuming appellate jurisdiction has been conferred
upon this Court. However, it is an extra-ordinary jurisdiction vested by the
Constitution in the Court with implicit trust and faith and thus, extra ordinary
care and caution has to be observed while exercising this jurisdiction. There
is no vested right of a party to approach this Court for the exercise of such a
vast discretion, however, such a course can be resorted to when this court
feels that it is so warranted to eradicate injustice. Such a jurisdiction is to be
exercised by the consideration of justice and call of duty. The power has to be
exercised with great care and due consideration but while exercising the
power, the order should be passed taking into consideration all binding
precedents otherwise such an order would create problems in the future. The
object of keeping such a wide power with this Court has been to see that
injustice is not perpetuated or perpetrated by decisions of courts below. More
so, there should be a question of law of general public importance or a
decision which shocks the conscience of the court are some of the prime
requisites for grant of special leave. Thus, unless it is shown that exceptional
and special circumstances exist that substantial and grave injustice has been
done and that the case in question presents features of sufficient gravity
warranting review of the decision appealed against, such exercise should not
be done. The power under Article 136 cannot be used to short circuit the legal
procedure prescribed in overriding power. This Court generally does not
permit a party to by-pass the normal procedure of appeal or reference to the
High Court unless a question of principle of great importance arises. It has to
be exercised exceptionally and with caution and only in such an extra-
ordinary situations. More so, such power is to be exercised taking into
consideration the well established principles which govern the exercise of
overriding constitutional powers (vide Dhakeswari Cotton Mills Ltd. v.
Commissioner of Income Tax, West Bengal AIR 1955 SC 65; The Union of
India v. Kishorilal Gupta & Bros. AIR 1959 SC 1362; Murtaza & Sons & Anr.
v. Nazir Mohd. Khan & Ors. AIR 1970 SC 668; Sirpur Paper Mills Ltd. v.
Commissioner of Wealth Tax, Hyderabad AIR 1970 SC 1520; The Municipal
Corporation, Bhopal v. Misbahul Hasan & Ors. AIR 1972 SC 892; Delhi
Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and
Ors. AIR 1991 SC 2176; Tirupati Balaji Developers Pvt. Ltd. & Ors. v. State of
Bihar & Ors. AIR 2004 SC 2351; and F.G.P. Ltd. v. Saleh Hooseini Doctor
(2009) 10 SCC 223).
  5. In Union of India & Ors. v. Karnail Singh (1995) 2 SCC 728, this court
while dealing with the similar issue held as under:


   "It is true that this Court when exercises its discretionary power under
   Article 136 or passes any order under Article 142, it does so with great
   care and due circumspection. But, when we are settling the law in
   exercise of this court's discretion, such law, so settled, should be clear
   and become operational instead of being kept vague, so that it could
   become a binding precedent in all similar cases to arise in future."


   6. It has been canvassed before us that under Article 142 of the
Constitution, this Court is competent to pass any order to do complete justice
between the parties and grant decree of divorce even if the case may not
meet the requirement of statutory provisions. The instant case presents
special features warranting exercise of such power.


   We are fully alive of the fact that this court has been exercising the power
under Article 142 of the Constitution for dissolution of marriage where the
Court finds that marriage is totally unworkable, emotionally dead, beyond
salvage and has broken down irretrievably, even if the facts of the case do
not provide a ground in law on which the divorce could be granted. Decree of
divorce has been granted to put quietus to all litigations between the parties
and to save them from further agony, as it is evident from the judgments in
Romesh Chander v. Savitri AIR 1995 SC 851; Kanchan Devi v. Promod
Kumar Mittal AIR 1996 SC 3192; Anita Sabharwal v. Anil Sabharwal (1997)
11 SCC 490; Ashok Hurra v. Rupa Bipin Zaveri AIR 1997 SC 1266; Kiran v.
Sharad Dutt (2000) 10 SCC 243; Swati Verma v. Rajan Verma AIR 2004 SC
161; Harpit Singh Anand v. State of West Bengal (2004) 10 SCC 505; Jimmy
Sudarshan Purohit v. Sudarshan Sharad Purohit (2005) 13 SCC 410; Durga
P. Tripathy v. Arundhati Tripathy AIR 2005 SC 3297;; Naveen Kohli v. Neelu
Kohli AIR 2006 SC 1675; Sanghamitra Ghosh v. Kajal Kumar Ghosh (2007) 2
SCC 220; Rishikesh Sharma v. Saroj Sharma (2007) 2 SCC 263; Samar
Ghosh v. Jaya Ghosh (2007) 4 SCC 511; and Satish Sitole v. Ganga AIR
2008 SC 3093.


    However, these are the cases, where this Court came to rescue the
parties on the ground for divorce not provided for by the legislature in the
statute.


    7. In Anjana Kishore v. Puneet Kishore (2002) 10 SCC 194, this Court
while allowing a transfer petition directed the court concerned to decide the
case of divorce by mutual consent, ignoring the statutory requirement of
moving the motion after expiry of the period of six months under Section 13-
B(2) of the Act.


    8. In Anil Kumar Jain (supra), this Court held that an order of waiving the
statutory requirements can be passed only by this Court in exercise of its
powers under Article 142 of the Constitution. The said power is not vested
with any other court.


    9. However, we have also noticed various judgments of this Court taking
a contrary view to the effect that in case the legal ground for grant of divorce
is missing, exercising such power tantamounts to legislation and thus
transgression of the powers of the legislature, which is not permissible in law
(vide Chetan Dass v. Kamla Devi AIR 2001 SC 1709; and Vishnu Dutt
Sharma v. Manju Sharma (2009) 6 SCC 379).


    10. Generally, no Court has competence to issue a direction contrary to
law nor the Court can direct an authority to act in contravention of the
statutory provisions. The courts are meant to enforce the rule of law and not
to pass the orders or directions which are contrary to what has been injected
by law. (Vide State of Punjab & Ors. v. Renuka Singla & Ors (1994) 1 SCC
175; State of U.P. & Ors. v. Harish Chandra & Ors. AIR 1996 SC 2173; Union
of India & Anr. v. Kirloskar Pneumatic Co. Ltd. AIR 1996 SC 3285; Vice
Chancellor, University of Allahabad & Ors. v. Dr. Anand Prakash Mishra &
Ors. (1997) 10 SCC 264; and Karnataka State Road Transport Corporation v.
Ashrafulla Khan & Ors. AIR 2002 SC 629).


   11. A Constitution Bench of this Court in Prem Chand Garg & Anr. v.
Excise Commissioner, U.P. & Ors. AIR 1963 SC 996 held as under:


   "An order which this Court can make in order to do complete justice
   between the parties, must not only be consistent with the fundamental
   rights guaranteed by the Constitution, but it cannot even be inconsistent
   with the substantive provisions of the relevant statutory laws."


   The Constitution Benches of this Court in Supreme Court Bar Association
v. Union of India & Anr. AIR 1998 SC 1895; and E.S.P. Rajaram & Ors. v.
Union of India & Ors. AIR 2001 SC 581 held that under Article 142 of the
Constitution, this Court cannot altogether ignore the substantive provisions of
a statute and pass orders concerning an issue which can be settled only
through a mechanism prescribed in another statute. It is not to be exercised
in a case where there is no basis in law which can form an edifice for building
up a superstructure.


   12. Similar view has been reiterated in A.R. Antulay v. R.S. Nayak & Anr.
(1988) 2 SCC 602; Bonkya alias Bharat Shivaji Mane & Ors. v. State of
Maharashtra (1995) 6 SCC 447; Common Cause, a Registered Society v.
Union of India & Ors. AIR 1999 SC 2979; M.S. Ahlawat v. State of Haryana
AIR 2000 SC 168; M.C. Mehta v. Kamal Nath & Ors. AIR 2000 SC 1997;
State of Punjab & Anr. v. Rajesh Syal (2002) 8 SCC 158; Government of
West Bengal v. Tarun K. Roy & Ors. (2004) 1 SCC 347; Textile Labour
Association v. Official Liquidator AIR 2004 SC 2336; State of Karnataka &
Ors. v. Ameerbi & Ors. (2007) 11 SCC 681; Union of India & Anr. v.
Shardindu AIR 2007 SC 2204; and Bharat Sewa Sansthan v. U.P. Electronic
Corporation Ltd. AIR 2007 SC 2961.


   13. In Teri Oat Estates (P) Ltd. v. UT. Chandigarh (2004) 2 SCC 130, this
Court held as under:
  "36..... sympathy or sentiment by itself cannot be a ground for passing an
   order in relation whereto the appellants miserably fail to establish a legal
   right. ... despite an extraordinary constitutional jurisdiction contained in
   Article 142 of the Constitution of India, this Court ordinarily would not
   pass an order which would be in contravention of a statutory provision."


   14. In Laxmidas Morarji (dead) by L.Rs. v. Behrose Darab Madan (2009)
10 SCC 425, while dealing with the provisions of Article 142 of the
Constitution, this Court has held as under:


   " ....The power under Article 142 of the Constitution is a constitutional
   power and hence, not restricted by statutory enactments. Though the
   Supreme Court would not pass any order under Article 142 of the
   Constitution which would amount to supplanting substantive law
   applicable or ignoring express statutory provisions dealing with the
   subject, at the same time these constitutional powers cannot in any way,
   be controlled by any statutory provisions. However, it is to be made clear
   that this power cannot be used to supplant the law applicable to the case.
   This means that acting under Article 142, the Supreme Court cannot pass
   an order or grant relief which is totally inconsistent or goes against the
   substantive or statutory enactments pertaining to the case. The power is
   to be used sparingly in cases which cannot be effectively and
   appropriately tackled by the existing provisions of law or when the
   existing provisions of law cannot bring about complete justice between
   the parties." (Emphasis added)


   15. Therefore, the law in this regard can be summarised to the effect that
in exercise of the power under Article 142 of the Constitution, this Court
generally does not pass an order in contravention of or ignoring the statutory
provisions nor the power is exercised merely on sympathy.


   16. The instant case requires to be examined in the light of aforesaid
settled legal propositions. Parties got married on 23.7.2008 and as they could
not bear each other, started living separately from 24.10.2008. There had
been claims and counter claims, allegations and criminal prosecution
between them. Petitioner approached the Competent Court at Gurgaon for
dissolution of marriage. Admittedly, that case is still pending consideration.
Parties filed the petition for divorce by mutual consent only in November 2009
before the Family Court, Delhi. Learned counsel for the petitioner could not
explain as to how the case for divorce could be filed before the Family Court,
Delhi during the pendency of the case for divorce before the Gurgaon Court.
Such a procedure adopted by the petitioner amounts to abuse of process of
the court. Petitioner has approached the different forums for the same relief
merely because he is very much eager and keen to get the marriage
dissolved immediately even by abusing the process of the Court. In Jai Singh
v. Union of India AIR 1977 SC 898, this Court while dealing with a similar
issue held that a litigant cannot pursue two parallel remedies in respect of the
same matter at the same time. This judgment has subsequently been
approved by this Court in principle but distinguished on facts in Awadh Bihari
Yadav v. State of Bihar AIR 1996 SC 122; and Arunima Baruah v. Union of
India (2007) 6 SCC 120.


   17. In Dr. Buddhi Kota Subbarao v. K. Parasaran & Ors. AIR 1996 SC
2687, this Court has observed as under:-


   "No litigant has a right to unlimited drought on the Court time and public
   money in order to get his affairs settled in the manner he wishes.
   However, access to justice should not be misused as a licence to file
   misconceived and frivolous petitions."


   18. Even otherwise, the statutory period of six months for filing the
second petition under Section 13-B(2) of the Act has been prescribed for
providing an opportunity to parties to reconcile and withdraw petition for
dissolution of marriage. Learned counsel for the petitioner is not able to
advance arguments on the issue as to whether, statutory period prescribed
under Section 13-B(1) of the Act is mandatory or directory and if directory,
whether could be dispensed with even by the High Court in exercise of its
writ/appellate jurisdiction.


    Thus, this is not a case where there has been any obstruction to the
stream of justice or there has been injustice to the parties, which is required
to be eradicated, and this Court may grant equitable relief. Petition does not
raise any question of general public importance. None of contingencies,
which may require this Court to exercise its extraordinary jurisdiction under
Article 142 of the Constitution, has been brought to our notice in the case at
hand.


    19. Thus, in view of the above, we do not find any justification to entertain
this petition. It is accordingly dismissed.

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