SIX MONTHS FOR MUTUAL DIVORCE NOT VIOLATIVE OF LIBERTY.

     IN THE SUPREME COURT OF INDIA
                      CIVIL ORIGINAL JURISDICTION


                WRIT PETITION (CIVIL) NO. 86 OF 2010




Smt. Poonam                                           ..... Petitioner


                                 Versus


Sumit Tanwar                                          ..... Respondent








                              ORD ER








Dr. B.S. CHAUHAN, J.




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
      of..........".




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






                                                                       2
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








                                                                     3
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






                                                                       4
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






                                                                        5
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


1361.






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






                                                                           6
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






                                                                       7
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






                                                                        8
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




                                                                        9
     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."








                                                                           10
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




                                                                       11
     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




                                                                      12
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




                                                                       13
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


reprehensible.


     For the reasons aforesaid, this petition is dismissed.








                                         ..............................J.
                                         (AFTAB ALAM)




                                         .............................J.
                                         (Dr. B.S. CHAUHAN)


New Delhi,
March 22, 2010








                                                                            14
                IN THE SUPREME COURT OF INDIA
                   CIVIL ORIGINAL JURISDICTION


                WRIT PETITION (CIVIL) NO. 86 OF 2010




Smt. Poonam                                      ..... Petitioner


                              Versus


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)




HON'BLE MR. JUSTICE AFTAB ALAM








                                                                    15

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