WRIT PETITION (CIVIL) NO. 86 OF 2010

Smt. Poonam                                           ..... Petitioner


Sumit Tanwar                                          ..... Respondent

                              ORD ER


1. This Writ Petition has been filed under Article 32 of the

     Constitution of India for awarding the decree of divorce, annulling

     the marriage of the parties herein; and/or issue directions waiving

     the statutory period of six months provided under Section 13-B(2)

     of the Hindu Marriage Act, 1955 (hereinafter referred to as, "The

     Act, 1955").

2.     The facts and circumstances giving rise to the present case are

that the petitioner and the respondent got married on 30.11.2008
according to Hindu rites in Delhi. They separated just after two days

of their marriage i.e. on 02.12.2008.     A petition for dissolution of

marriage by consent being HMA No. 197/09 dated 09.09.2009 was

filed under Section 13-B(1) of The Act, 1955. The Family Court of

Delhi, vide order dated 25.11.2009 accepted the said HMA No.

197/2009 (titled as Poonam Vs. Sumit Tanwar) observing as under :-

      "7. In view of Section 13(B)(2) of the Hindu Marriage
      Act, the marriage between the parties cannot be
      dissolved straightaway in the present case. As per the
      statutory requirement, parties are advised to make
      further efforts for reconciliation in order to save their
      marriage. In case they are unable to do so, the parties
      may come up with the petition of second motion under
      Section 13-B(2) of the Hindu Marriage Act as per law.
      The present petition under Section 13-B(1) of the Hindu
      Marriage Act is hereby allowed and stands disposed

3.    Being aggrieved by the order of the Family Court, the present

Writ Petition has been filed.   The matter came up for preliminary

hearing on 19.03.2010. Mr. A., an proxy counsel, was not able to

explain as under what circumstances, a Writ Petition under Article 32

of the Constitution is maintainable for such a relief and as to whether

the Court has the power to issue a writ to the Court/Tribunal to violate

a mandatory statutory provision. The learned counsel was also not

able to explain under what circumstances a writ petition lies; who is

amenable to writ jurisdiction; and which are the necessary parties in

a writ petition? The matter was passed over and the proxy counsel

was asked to come along with Mr. B., Advocate-on-Record, who had

signed and filed the petition. In the second round when the matter

was taken up, another proxy counsel appeared and introduced

himself as brother of Mr. B., Advocate-on-Record. The second proxy

counsel also expressed his inability to render any assistance to the

Court on any legal issue.      Being faced with an inordinate and

unfortunate situation that the matter had been filed in the Apex Court

of the Country and the appearing counsel was not able to render any

assistance, the matter was adjourned for Monday i.e. for 22.03.2010

and the learned Advocate-on-Record Mr. B. was requested to appear

in the Court.

4.    Mr. B. learned Advocate-on-Record appeared in Court today

and could not furnish any explanation whatsoever to defend the

petition, nor he could explain how this petition is maintainable.

However, he tendered absolute and unconditional apology and

assured that he will not lend his name merely for filing the petition by

other counsel in future.

5.    This very Bench decided a Special Leave Petition (Civil) No.

2954/2010 (Manish Goel Vs. Rohini Goel) vide Judgment and Order

dated 05.02.2010 observing that this Court, in exercise of its powers

under Article 142 of the Constitution, generally should not issue any

direction to waive the statutory requirement. The Courts are meant to

enforce the law and therefore, are not expected to issue a direction

in contravention of law or to direct the statutory authority to act in

contravention of law. While deciding the said case, reliance has been

placed upon a large number of Judgments of this Court including

Constitution Bench Judgments of this Court viz. Prem Chand Garg &

Anr. Vs. Excise Commissioner, UP & Anr. AIR 1963 SC 996;

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.

6.    In the said case, a similar relief was claimed, however, it was

rejected observing that statutory period of six months for filing a

second petition under Section 13-B(2) of The Act, 1955 has been

prescribed for providing an opportunity to the parties to reconcile and

withdraw the petition for dissolution and as it was not a case where

there has been any obstruction to the stream of justice nor there had

been injustice to the parties, which was required to be undone, this

Court refused to grant the relief under Article 136 of the Constitution

of India.

7.    The citizens are entitled to appropriate relief under the

provisions of Article 32 of the Constitution, provided it is shown to the

satisfaction of the Court that the Fundamental Right of the petitioner

had been violated. (Vide Daryao & Ors. Vs. State of U.P. & Ors.

AIR 1961 SC 1457). This Court has a constitutional duty to protect

the Fundamental Rights of Indian citizens. (Vide M.C. Mehta Vs.

Union of India AIR 2006 SC 1325).

      The distinction in a Writ Petition under Article 226 and Article 32

of the Constitution is that the remedy under Article 32 is available

only for enforcement of the Fundamental Rights, while under Article

226 of the Constitution, a Writ Court can grant relief for any other

purpose also. (Vide A.K. Gopalan Vs. State of Madras AIR 1950 SC

27; Bhagwandas Gangasahai Vs. Union of India & Ors. AIR 1956

SC 175; Kalyan Singh Vs. State of Uttar Pradesh & Ors. AIR 1962

SC 1183; Fertilizer Corporation Kamagar Union, Sindri & Ors. Vs.

Union of India & Ors. AIR 1981 SC 344).

        Even if it is found that injury caused to the writ petitioner

alleging violation of Fundamental Right is too indirect or remote, the

discretionary writ jurisdiction may not be exercised as held by this

Court in State of Rajasthan & Ors. Vs. Union of India AIR 1977 SC


8.      More so, a writ lies only against a person if it is a statutory body

or performs a public function or discharges a public or a statutory

duty, or a "State" within the meaning of Article 12 of the Constitution.

(Vide Anandi Mukta Sadguru Trust Vs. V.R. Rudani AIR 1989 SC

1607; VST Industries Ltd. Vs. VST Industries Workers' Union &

Anr. (2001) 1 SCC 298; and State of Assam Vs. Barak Upatyaka

U.D. Karamchari Sanstha AIR 2009 SC 2249).

9.      It is settled legal proposition that the remedy of a person

aggrieved by the decision of the competent judicial Tribunal is to

approach for redress a superior Tribunal, if there is any, and that

order cannot be circumvented by resorting to an application for a writ

under Article 32 of the Constitution. Relief under Article 32 can be for

enforcing a right conferred by Part III of the Constitution and only on

the proof of infringement thereof. If by adjudication by a Court of

competent jurisdiction, the right claimed has been negatived, a

petition under Article 32 of the Constitution is not maintainable. It is

not generally assumed that a judicial decision pronounced by a Court

may violate the Fundamental Right of a party. Judicial orders passed

by the Court in or in relation to proceeding pending before it are not

amenable to be corrected by issuing a writ under Article 32 of the

Constitution.   (Vide Sahibzada Saiyed Muhammed Amirabbas

Abbasi & Ors. Vs. the State of Madhya Bharat (now Madhya

Pradesh) & Ors. AIR 1960 SC 768; Smt. Ujjam Bai Vs. State of

Uttar Pradesh & Anr. AIR 1962 SC 1621; and Naresh Shridhar

Mirajkar Vs. State of Maharashtra AIR 1967 SC 1)

10.   In the instant case, the Family Court, Delhi has passed an order

strictly in accordance with law asking the parties to wait for statutory

period of six months to file the second motion in the case. In such a

fact-situation, it is not permissible to suggest that the aforesaid order

has violated or infringed any of the fundamental rights or any legal

right of the parties. Therefore, we are not able to understand as

under what circumstances, the writ is maintainable.        The learned

counsel appearing for the petitioner is not able to explain under what

circumstances, the petition has been filed and as to whether such a

petition is maintainable or whether relief of dissolution of marriage

could be sought by the parties directly from this Court in a case,

wherein the marriage had taken place only a year and three months

ago. The counsel was not able even to explain that even if the Court

considers to issue the writ, to whom it would be issued as the only

parties in the case are wife and husband, who are seeking the

divorce by consent. The learned counsel is not able to enlighten the

Court as to whether the Family Court could be impleaded in this

petition. He expressed his inability to answer any question.

11.   In Thakur Sukhpal Singh Vs. Thakur Kalyan Singh & Anr.,

AIR 1963 SC 146, this Court has held that in absence of proper

assistance to the Court by the lawyer, there is no obligation on the

part of the Court to decide the case, for the simple reason that unless

the lawyer renders the proper assistance to the Court, the Court is

not able to decide the case. It is not for the Court itself to decide the

controversy. The counsel cannot just raise the issues in his petition

and leave it to the Court to give its decision on those points after

going through the record and determining the correctness thereof. It

is not for the Court itself to find out what the points for determination

can be and then proceed to give a decision on those points.

12.   While deciding the said case, this Court placed reliance upon

the judgment of Privy Council in Mst. Fakrunisa & Ors. Vs. Moulvi

Izarus Sadik & Ors., AIR 1921 PC 55 wherein it had been observed

as under:-

      "In every appeal it is incumbent upon the appellants to show
      some reason why the judgment appealed from should be
      disturbed; there must be some balance in their favour when
      all the circumstances are considered to justify the alteration
      of the judgment that stands. Their Lordships are unable to
      find that this duty has been discharged."

13.   In The Bar Council of Maharashtra Vs. M. V. Dabholkar &

Ors. AIR 1976 SC 242, this Court had observed as under :-

      "Be it remembered that the central function of the legal
      profession is to promote the administration of justice. If the

     practice of law is thus a public utility of great implications and
      a monopoly is statutorily granted by the nation, it obligates
      the lawyer to observe scrupulously those norms which make
      him worthy of the confidence of the community in him as a
      vehicle of justice - social justice..................Law is no
      trade, briefs no merchandise."

14.   In T.C. Mathai & Anr. Vs. District & Sessions Judge,

Thiruvananthapuram AIR 1999 SC 1385, this Court observed:

      "The work in a Court of law is a serious and responsible
      function. The primary duty of a.......court is to
      administer.......justice. Any lax or wayward approach, if
      adopted; towards the issues involved in the case, can cause
      serious consequences for the parties concerned........In the
      adversary system which is now being followed in India, both
      in civil and criminal litigation, it is very necessary that the
      Court gets proper assistance from both sides................
      Efficacies discharge of judicial process very often depends
      upon the valuable services rendered by the legal profession"

15.   In D.P. Chadha Vs. Triyugi Narain Mishra & Ors., AIR 2001

SC 457, this Court has observed as under:-

      "..........Mutual confidence in the discharge of duties and
      cordial relations between Bench and Bar smoothen the
      movement of the chariot. As responsible officers of the
      Court, as they are called ---- and rightly, the counsel have an
      overall obligation of assisting the Courts in a just and proper
      manner in the just and proper administration of justice."

16.   Thus, in view of the above, law can be summarised to the effect

that, in case, the counsel for the party is not able to render any

assistance, the Court may decline to entertain the petition.

17.   There is another aspect of the matter.       In case, petitioner's

counsel is not able to raise a factual or legal issue, though such a

point may have a good merit, the Court should not decide the same

as the opposite counsel does not "have a fair opportunity to answer

the line of reasoning adopted" in this behalf. Such a judgment may

be violative of principles of natural justice. (vide New Delhi Municipal

Committee vs. State of Punjab AIR 1997 SC 2847).

18.   While dealing with a similar issue, this Court in Re: Sanjiv

Datta (1995) 3 SCC 619 observed as under:-

      "Of late, we have been coming across several instances
      which can only be described as unfortunate both for the
      legal profession and the administration of justice. It
      becomes, therefore, our duty to bring it to the notice of the
      members of the profession that it is in their hands to
      improve the quality of the service they render both to the
      litigant-public and to the courts, and to brighten their image
      in the society. Some members of the profession have
      been adopting perceptibly casual approach to the

     practice of the profession as is evident from their
      absence when the matters are called out, the filing of
      incomplete and inaccurate pleadings -- many times even
      illegible and without personal check and verification, the
      non-payment of court fees and process fees, the failure to
      remove office objections, the failure to take steps to serve
      the parties, et al. They do not realise the seriousness of
      these acts and omissions. They not only amount to the
      contempt of the court but do positive disservice to the
      litigants and create embarrassing situation in the court
      leading to avoidable unpleasantness and delay in the
      disposal of matters. This augurs ill for the health of our
      judicial system....... The legal profession is different from
      other professions in that what the lawyers do, affects not
      only an individual but the administration of justice which is
      the foundation of the civilised society." (emphasis added)

19.    In Vijay Dhanji Chaudhary Vs. Suhas Jayant Natawadkar

(2010) 1 SCC 166, this Court has taken note of the ongoing rampant

unethical practice by some of the Advocates-on-Record, duly enrolled

under the provisions of the Supreme Court Rules, 1966, as many

special leave petitions are being filed by them being merely as name-

lenders, without having, or taking any responsibility for the case. As

a result of prevalence of such a practice, in such cases, the

Advocates-on-Record do not appear when matters are listed before

the Court, nor do they take any interest or responsibility for

processing or conducting the case.        They also play no role in

preparation of the petitions, nor ensure that requirements of Rules

are fulfilled and defects are cured. If role of an Advocate-on-Record

is merely to lend his name for filing cases without being responsible

for conduct of a case, the very purpose of having the system of

Advocates-on-Record would get defected.

      In the said case, this Court did not merely dismiss the petition

for not rendering any assistance by the appearing counsel in absence

of the Advocate-on-Record, rather issued notice to the Supreme

Court Bar Association and the Advocates-on-Record's Association

asking for suggestions for improving the system and to compel such

mere name-lending Advocates-on-Record to serve the purpose for

which they have been enrolled. The matter is to come for further

consideration after those Associations submit their suggestions for

observance and strict adherence to the Rules, as is evident from the

proceedings in that case dated 30.11.2009, 08.03.2010, 15.03.2010

and 18.03.2010.

20.   The aforesaid facts reveal that application for dissolution of

marriage was filed only on 9.9.2009 before the Family Court and the

said application was disposed of vide order dated 25.11.2009 asking

the parties to wait for six months. Thus, it is not a case that there had

been any delay in disposal of the case by the Family Court. The

petition has been filed without any sense of responsibility either by

the parties or their counsel. Such a practice is tantamount to not only

disservice to the institution but it also adversely affects the

administration of justice.    Conduct of all of them has been


     For the reasons aforesaid, this petition is dismissed.

                                         (AFTAB ALAM)

                                         (Dr. B.S. CHAUHAN)

New Delhi,
March 22, 2010


                WRIT PETITION (CIVIL) NO. 86 OF 2010

Smt. Poonam                                      ..... Petitioner


Sumit Tanwar                                     ..... Respondent

Dear Brother,

     A draft order in the above mentioned matter is being sent
herewith for your kind perusal and favourable consideration.

     With regards,

                                              Yours sincerely,

                                           (Dr. B.S. CHAUHAN)




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