SHILPA SAILESH versus VARUN SREENIVASAN

[2023] 5 S.C.R. 165

SHILPA SAILESH

VARUN SREENIVASAN

(Transfer Petition (Civil) No. 1118 of 2014)

MAY 01, 2023

[SANJAY KISHAN KAUL, SANJIV KHANNA, ABHAY S.OKA, VIKRAM NATH AND J.K. MAHESHWARI, JJ.]

Constitution of India – Art. 142 – Scope and ambit of – Held:The power u/Art. 142(1) is undefined and uncatalogued, so as toensure elasticity to mould relief to suit given situation – The SupremeCourt can depart from the procedure as well as the substantive laws,as long as the decision is exercised based on considerations offundamental general and specific public policy – While decidingwhether to exercise discretion, the Court must consider thesubstantive provisions as enacted and not ignore the same, albeitthe Court acts as problem solver by balancing out equities betweenthe conflicting claims – This power is to be exercised in ‘cause ormatter’.

Constitution of India – Art. 142 – Hindu Marriage Act, 1955– s.13-B – Grant of decree of divorce by mutual consent – WhetherSupreme Court while hearing transfer petition, or in any otherproceedings, can exercise power u/Art.142(1) to grant decree ofdivorce by mutual consent dispensing with the period and theprocedure prescribed u/s.13-B of the Act of 1956 and also quashand dispose of other/connected proceedings and in which casesand under what circumstances should Supreme Court exercisejurisdiction u/Art. 142 – Held: In view of settlement between theparties, the Supreme Court has the discretion to dissolve the marriageby passing decree of divorce by mutual consent, without beingbound by the procedural requirement to move the second motion –This power should be exercised with care and caution, keeping inmind the factors stated in Amardeep Singh case and Amit Kumar case– This Court can also, in exercise of power u/Art. 142(1) can alsoquash and set aside other proceedings and orders, including criminalproceedings.

AConstitution of India – Art. 142 – Grant of divorce in case ofirretrievable breakdown of marriage – Whether Supreme Court cangrant divorce in exercise of power under Article 142(1), when thereis complete and irretrievable breakdown of marriage in spite of theother spouses opposing the prayer – Held: The Court in exercise ofpower under Art.142(1), has the discretion to dissolve the marriageBon the ground of its irretrievable breakdown – The Court’sdiscretionary power is to be exercised to do ‘complete justice’ to theparties – The Court should be fully convinced and satisfied that themarriage is totally unworkable, emotionally dead and beyondsalvation and, therefore, dissolution of marriage is the right solutionCand the only way forward – The Supreme Court, as court of equity,is required to also balance the circumstances and the backgroundin which the party opposing the dissolution is placed.

Hindu Marriage Act, 1955 – Irretrievable breakdown ofmarriage – Determination of – Held: That the marriage hasDirretrievably broken down is to be factually determined and firmlyestablished – For this, several factors are to be considered such asthe period of time the parties had cohabited after marriage; whenthe parties had last cohabited; the nature of allegations made bythe parties against each other and their family members; the orderspassed in the legal proceedings from time to time, cumulative impactEon the personal relationship; whether, and how many attempts weremade to settle the disputes by intervention of the court or throughmediation, and when the last attempt was made, etc. – The period ofseparation should be sufficiently long, and anything above six yearsor more will be relevant factor – Question of custody and welfareFof minor children are also to be considered – Some of the factorsmentioned can be taken as illustrative, and worthy of consideration– The factors are not codified – The exercise of jurisdiction u/Art.142(1) is situation specific.Constitution of India – Art.32 – Whether party can directlyGcanvass before the Supreme Court on the ground of irretrievablebreakdown, by filing writ petition under Art. 32 of the Constitution– Held: The parties should not be permitted to circumvent theprocedure by resorting to the writ jurisdiction u/Art. 32 or 226 –The remedy of person aggrieved by the decision of the competentjudicial forum is to approach the superior forum for redressal ofH

his grievance – Relief u/Art. 32 can be sought to enforce the rightsconferred by Part III of the Constitution of India, and on the proofof infringement thereof – Judicial orders passed by the court in, orin relation to, the proceedings pending before it, are not amenableto correction u/Art. 32 of the Constitution of India – The viewregarding the same in Poonam v. Sumit Tanwar is accepted.

Judgment/Order – Clarification – Held: It is clarified thatreference in Poonam v. Sumit Tanwar and the observation that it isquestionable whether the period of six months for moving the secondmotion can be waived has not been approved.

Answering the reference, the Court

HELD: The scope and ambit of power and jurisdiction ofthis Court under Article 142(1) of the Constitution of India;

1. The plenary and conscientious power conferred on thisCourt under Article 142(1) of the Constitution of India, seeminglyunhindered, is tempered or bounded by restraint, which must beexercised based on fundamental considerations of general andspecific public policy. Fundamental general conditions of publicpolicy refer to the fundamental rights, secularism, federalism,and other basic features of the Constitution of India. Specific publicpolicy should be understood as some express pre-eminentprohibition in any substantive law, and not stipulations andrequirements to particular statutory scheme. It should notcontravene fundamental and non-derogable principle at the coreof the statute. Even in the strictest sense, it was never doubtedor debated that this Court is empowered under Article 142(1) ofthe Constitution of India to do ‘complete justice’ without beingbound by the relevant provisions of procedure, if it is satisfiedthat the departure from the said procedure is necessary to do‘complete justice’ between the parties. Difference betweenprocedural and substantive law in jurisprudential terms iscontentious, albeit not necessary to be examined in depth in thepresent decision, as in terms of the dictum enunciated by thisCourt in Union Carbide Corporation and Supreme Court BarAssociation, exercise of power under Article 142(1) of the

AConstitution of India to do ‘complete justice’ in ‘cause or matter’is prohibited only when the exercise is to pass an order which isplainly and expressly barred by statutory provisions of substantivelaw based on fundamental considerations of general or specificpublic policy. As explained in Supreme Court Bar Association, theexercise of power under Article 142(1) of the Constitution of IndiaBbeing curative in nature, this Court would not ordinarily pass anorder ignoring or disregarding statutory provision governingthe subject, except to balance the equities between conflictingclaims of the litigating parties by ironing out creases in ‘causeor matter’ before it. In this sense, this Court is not forum ofCrestricted jurisdiction when it decides and settles the dispute ina ‘cause or matter’. While this Court cannot supplant thesubstantive law by building new edifice where none existedearlier, or by ignoring express substantive statutory lawprovisions, it is problem-solver in the nebulous areas. As longas ‘complete justice’ required by the ‘cause or matter’ is achievedDwithout violating fundamental principles of general or specificpublic policy, the exercise of the power and discretion underArticle 142(1) is valid and as per the Constitution of India. Thisis the reason why the power under Article 142(1) of theConstitution of India is undefined and uncatalogued, so as toEensure elasticity to mould relief to suit given situation. The factthat the power is conferred only on this Court is an assurancethat it will be used with due restraint and circumspection. [Para13][188-F; 189-A-C; 190-A-F]

2. Question as to the power and jurisdiction of this CourtFunder Article 142(1) of the Constitution of India is answeredholding that this Court can depart from the procedure as well asthe substantive laws, as long as the decision is exercised basedon considerations of fundamental general and specific publicpolicy. While deciding whether to exercise discretion, this Courtmust consider the substantive provisions as enacted and notGignore the same, albeit this Court acts as problem solver bybalancing out equities between the conflicting claims. This poweris to be exercised in ‘cause or matter’. [Para 42][212-D-E]

Whether Court, while hearing transfer petition, or in anyother proceedings, can exercise power under Article 142(1) of theConstitution of India, in view of the settlement between the parties,and grant decree of divorce by mutual consent dispensing with-the period and the procedure prescribed under Section 13B of theHindu Marriage Act, and also quash and dispose of other/connectedproceedings under the Protection of Women from Domestic ViolenceAct, 2005, Section 125 of the Code of Criminal Procedure, 1973, orcriminal prosecution primarily under Section 498-A and otherprovisions of the Indian Penal Code, 1860. If the answer to thisquestion is in the affirmative, in which cases and under whatcircumstances should this Court exercise jurisdiction under Article142(1) of the Constitution of India is an ancillary issue to be decided;

3.There is difference between existence of power, andexercise of that power in given case. Existence of power isgenerally matter of law, whereas exercise of power is mixedquestion of law and facts. Even when the power to pass decreeof divorce by mutual consent exists and can be exercised by thisCourt under Article 142(1) of the Constitution of India, when andin which of the cases the power should be exercised to do‘complete justice’ in ‘cause or matter’ is an issue that has to bedetermined independent of existence of the power. Thisdiscretion has to be exercised on the basis of the factual matrixin the particular case, evaluated on objective criteria and factors,without ignoring the objective of the statutory provisions. [Para20][196-C-D]4. Section 13-B of the Hindu Marriage Act does not imposeany fetters on the powers of this Court to grant decree of divorceby mutual consent on joint application, when the substantiveconditions of the Section are fulfilled and the Court, after referringto the factors mentioned above, is convinced and of the opinionthat the decree of divorce should be granted. [Para 21][197-A-B]

5. The legislature and the Courts treat matrimoniallitigations as special, if not unique category. Public policyunderlying the legislations dealing with family and matrimonialmatters is to encourage mutual settlement, as is clearly stated inSection 89 of the C.P.C., Section 23(2) of the Hindu Marriage

AAct, and Section 9 of the Family Courts Act, 1984. Given thatthere are multiple legislations governing different aspects, evenif the cause of dispute is identical or similar, most matrimonialdisputes lead to miscellany of cases including criminal cases, attimes genuine, and on other occasions initiated because ofindignation, hurt, anger or even misguided advice to teach aBlesson. The multiplicity of litigations can restrict and blocksolutions, as settlement has to be holistic and comprehensive,given that the objective and purpose is to enable the parties tocohabit and live together, or if they decide to part ways, to have anew beginning and settle down to live peacefully. The courts mustCnot encourage matrimonial litigation, and prolongation of suchlitigation is detrimental to both the parties who lose their youngage in chasing multiple litigations. Thus, adopting hyper-technicalview can be counter-productive as pendency itself causes pain,suffering and harassment and, consequently, it is the duty of thecourt to ensure that matrimonial matters are amicably resolved,Dthereby bringing the agony, affliction, and torment to an end. Inthis regard, the courts only have to enquire and ensure that thesettlement between the parties is achieved without pressure,force, coercion, fraud, misrepresentation, or undue influence, andthat the consent is indeed sought by free will and choice, and theEautonomy of the parties is not compromised. In view of the abovelegal position and discussion, Supreme Court, on the basis ofsettlement between the parties, while passing decree of divorceby mutual consent, can set aside and quash other proceedingsand orders, including criminal cases and First InformationReport(s), provided the conditions, as specified in the variousFjudgments, are satisfied. [Para 22][197-B-D; 198-A, D]

6. This Court, in view of settlement between the parties,has the discretion to dissolve the marriage by passing decreeof divorce by mutual consent, without being bound by theprocedural requirement to move the second motion. This powerGshould be exercised with care and caution, keeping in mind thefactors stated in Amardeep Singh and Amit Kumar. This Courtcan also, in exercise of power under Article 142(1) of theConstitution of India, quash and set aside other proceedings andorders, including criminal proceedings. [Para 42][213-C-D]

Whether this Court can grant divorce in exercise of powerunder Article 142(1) of the Constitution of India when there iscomplete and irretrievable breakdown of marriage in spite of theother spouse opposing the prayer.

7. This Court would not read the provisions of the HinduMarriage Act, their underlying intent, and any fundamental specificissue of public policy, as barring this Court from dissolving abroken and shattered marriage in exercise of the Constitutionalpower under Article 142(1) of the Constitution of India. If at all,the underlying fundamental issues of public policy, as explainedin the judgments of V. Bhagat, Ashok Hurra, and Naveen Kohli,support the view that it would be in the best interest of all,including the individuals involved, to give legality, in the form offormal divorce, to dead marriage, otherwise the litigation(s),resultant sufferance, misery and torment shall continue.Therefore, apportioning blame and greater fault may not be therule to resolve and adjudicate the dispute in rare and exceptionalmatrimonial cases, as the rules of evidence under the EvidenceAct are rules of procedure. When the life-like situation is knownindubitably, the essence and objective behind section 13(1)(i-a)of the Hindu Marriage Act that no spouse should be subjected tomental cruelty and live in misery and pain is established. Theserules of procedure must give way to ‘complete justice’ in ‘causeor matter’. Fault theory can be diluted by this Court to do‘complete justice’ in particular case, without breaching the self-imposed restraint applicable when this Court exercises powerunder Article 142(1) of the Constitution of India. [Para 30][205-C-F]

8. It is clearly stated that grant of divorce on the ground ofirretrievable breakdown of marriage by this Court is not matterof right, but discretion which is to be exercised with great careand caution, keeping in mind several factors ensuring that‘complete justice’ is done to both parties. It is obvious that thisCourt should be fully convinced and satisfied that the marriage istotally unworkable, emotionally dead and beyond salvation and,therefore, dissolution of marriage is the right solution and theonly way forward. That the marriage has irretrievably broken downis to be factually determined and firmly established. For this,

172SUPREME COURT REPORTS

Aseveral factors are to be considered such as the period of timethe parties had cohabited after marriage; when the parties hadlast cohabited; the nature of allegations made by the partiesagainst each other and their family members; the orders passedin the legal proceedings from time to time, cumulative impact onthe personal relationship; whether, and how many attempts wereBmade to settle the disputes by intervention of the court or throughmediation, and when the last attempt was made, etc. The periodof separation should be sufficiently long, and anything above sixyears or more will be relevant factor. But these facts have to beevaluated keeping in view the economic and social status of theCparties, including their educational qualifications, whether theparties have any children, their age, educational qualification, andwhether the other spouse and children are dependent, in whichevent how and in what manner the party seeking divorce intendsto take care and provide for the spouse or the children. Questionof custody and welfare of minor children, provision for fair andDadequate alimony for the wife, and economic rights of the childrenand other pending matters, if any, are relevant considerations.This Court would not like to codify the factors so as to curtailexercise of jurisdiction under Article 142(1) of the Constitutionof India, which is situation specific. Some of the factors mentionedEcan be taken as illustrative, and worthy of consideration. [Para33][207-C-G; 208-A]9. This Court, in exercise of power under Article 142(1) ofthe Constitution of India, has the discretion to dissolve themarriage on the ground of its irretrievable breakdown. ThisFdiscretionary power is to be exercised to do ‘complete justice’to the parties, wherein this Court is satisfied that the factsestablished show that the marriage has completely failed and thereis no possibility that the parties will cohabit together, andcontinuation of the formal legal relationship is unjustified. TheCourt, as court of equity, is required to also balance theGcircumstances and the background in which the party opposingthe dissolution is placed. [Para 42][213-F-G]

10. This Court is of the opinion that the decisions of thisCourt in Manish Goel , Neelam Kumar , Darshan Gupta , Hitesh

Bhatnagar, Savitri Pandey and others have to be read down inthe context of the power of this Court given by the Constitutionof India to do ‘complete justice’ in exercise of the jurisdictionunder Article 142(1) of the Constitution of India. In consonancewith our findings on the scope and ambit of the power under Article142(1) of the Constitution of India, in the context of matrimonialdisputes arising out of the Hindu Marriage Act, this Court holdthat the power to do ‘complete justice’ is not fettered by thedoctrine of fault and blame, applicable to petitions for divorceunder Section 13(1)(i-a) of the Hindu Marriage Act. As held above,this Court’s power to dissolve marriage on settlement by passinga decree of divorce by mutual consent, as well as quash and setaside other proceedings, including criminal proceedings, remainsand can be exercised. [Para 40][211-B-D]

11. Lastly, this Court must express its opinion on whethera party can directly canvass before this Court the ground ofirretrievable breakdown by filing writ petition under Article 32of the Constitution. In Poonam v. Sumit Tanwar, two judges’bench of this Court has rightly held that any such attempt mustbe spurned and not accepted, as the parties should not bepermitted to file writ petition under Article 32 of the Constitutionof India, or for that matter under Article 226 of the Constitutionof India before the High Court, and seek divorce on the groundof irretrievable breakdown of marriage. The reason is that theremedy of person aggrieved by the decision of the competentjudicial forum is to approach the superior tribunal/forum forredressal of his/her grievance. The parties should not bepermitted to circumvent the procedure by resorting to the writjurisdiction under Article 32 or 226 of the Constitution of India,as the case may be. Secondly, and more importantly, relief underArticle 32 of the Constitution of India can be sought to enforcethe rights conferred by Part III of the Constitution of India, andon the proof of infringement thereof. Judicial orders passed bythe court in, or in relation to, the proceedings pending before it,are not amenable to correction under Article 32 of theConstitution of India. Therefore, party cannot file writ petitionunder Article 32 of the Constitution of India and seek relief ofdissolution of marriage directly from this Court. [Para 41][211-E-G; 212-A]

M. Siddiq (Dead) Through Legal Representatives (RamJanmabhumi Temple Case) v. Mahant Suresh Das andOthers (2020) 1 SCC 1 : [2019] 18 SCR 1; Prem ChandGarg and Another v. The Excise Commissioner, U.P. andOthers AIR 1963 SC 996 : [1963] Suppl. SCR 885;Supreme Court Bar Association v. Union of India andAnother (1998) 4 SCC 409 : [1998] 2 SCR 795 –followed.

Union Carbide Corporation and Others v. Union ofIndia and Others (1991) 4 SCC 584 : [1991] 1 Suppl.SCR 251; Amardeep Singh v. Harveen Kaur (2017) 8SCC 746 : [2017] 8 SCR 925; Amit Kumar v. SumanBeniwal (2021) SCC Online SC 1270 – relied on.

Poonam v. Sumit Tanwar (2010) 4 SCC 460 : [2010] 3SCR 557 – affirmed.

Manish Goel v. Rohini Goel (2010) 4 SCC 393 : [2010]2 SCR 414; Anjana Kishore v. Puneet Kishore (2002)10 SCC 194; Pradip Chandra Parija and Others v.Pramod Chandra Patnaik and Others (2002) 1 SCC 1: [2001] 5 Suppl. SCR 460; State (Through CentralBureau of Investigation) v. Kalyan Singh (Former ChiefMinister of Uttar Pradesh) and Others (2017) 7 SCC444 : [2017] 6 SCR 946; I. C. Golak Nath and Othersv. State of Punjab and Another AIR 1967 SC 1643 :[1967] SCR 762; B.S. Joshi and Others v. State ofHaryana and Another (2003) 4 SCC 675 : [2003] 2SCR 1104; Gian Singh v. State of Punjab and Another(2012) 10 SCC 303 : [2012] 8 SCR 753; JitendraRaghuvanshi and Others v. Babita Raghuvanshi andAnother (2013) 4 SCC 58 : [2013] 2 SCR 921; State ofMadhya Pradesh v. Laxmi Narayan and Others (2019)5 SCC 688 : [2019] 2 SCR 864; N.G. Dastane v. S.Dastane (1975) 2 SCC 326 : [1975] 3 SCR 967;V. Bhagat v. D. Bhagat (1994) 1 SCC 337 : [1993] 3Suppl. SCR 796; Ashok Hurra v. Rupa Bipin Zaveri(1997) 4 SCC 226 : [1997] 2 SCR 875; Naveen Kohliv. Neelu Kohli (2006) 4 SCC 558 : [2006] 3 SCR 53;Munish Kakkar v. Nidhi Kakkar (2020) 14 SCC 657 :

SHILPA SAILESH v. VARUN SREENIVASAN

[2019] 15 SCR 169; Sivasankaran v. Santhimeenal 2021SCC OnLine SC 702; R. Srinivas Kumar v. R. Shametha(2019) 9 SCC 409 : [2019] 12 SCR 873; HiteshBhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234 :[2011] 6 SCR 118; Sureshta Devi v. Om Prakash (1991)2 SCC 25 : [1991] 1 SCR 274; Smruti Pahariya v.Sanjay Pahariya (2009) 13 SCC 338 : [2009] 8 SCR631; Shyam Sundar Kohli v. Sushma Kohli Alias SatyaDevi (2004) 7 SCC 747; Darshan Gupta v. RadhikaGupta (2013) 9 SCC 1 : [2013] 10 SCR 937; GurbuxSingh v. Harminder Kaur (2010) 14 SCC 301 : [2010]12 SCR 275; Neelam Kumar v. Dayarani (2010) 13SCC 298; Satish Sitole v. Ganga (2008) 7 SCC 734 :[2008] 10 SCR 767; Vishnu Dutt Sharma v. ManjuSharma (2009) 6 SCC 379 : [2009] 3 SCR 891; SavitriPandey v. Prem Chandra Pandey (2002) 2 SCC 73 :[2002] 1 SCR 50; Jorden Diengdeh v. S.S. Chopra(1985) 3 SCC 62 : [1985] 1 Suppl. SCR 704 – referredto.

Horton v. Horton [1940] P.187; Owens v. Owens (2018)UKSC 41 – referred to.

176SUPREME COURT REPORTS

CIVIL ORIGINAL JURISDICTION: Transfer Petition (Civil) No.1118 of 2014.

Petition seeking transfer of P.A. No. 1148 of 2013 of the FamilyGCourt, Pune at Pune, to Family Court Ernakulam, Kerala State.

With

Transfer Petition (Criminal) Nos. 96, 339, 382, 468 of 2014 andTransfer Petition (Civil) Nos. 1481-1482 of 2014.

Ms. Indira Jaising, V. Giri, Ms. Meenakshi Arora, Dushyant Dave,Sr. Advs., (AC) Paras Nath Singh, Rohin Bhatt, Ms. Suveni Bhagat,Ms. Ankita Gupta, Shrirang Varma, Arjun Ranganathan, ChandratanayChaube, Ms. Kiran Bhardwaj, Ms. Neha Sangwan, Advs.

V. Mohana, Sr. Adv., Ms. Hetu Arora Sethi, Ms. Saumya Tandon,Ms. L.M. Bhat, Rahul Jain, Anirudh Bhat, Ms. Jyotika Kalra,Ms. Annwesha Deb, Ms. Ayushi Chugh, Ms. Piyushi Malik, Aditya Jha,Kartik Sundar, Amol Chitale, Nirnimesh Dube, Ankur S Kulkarni, SusheelJoseph Cyriac, Ms. Sonia Dube, Subash Nair, Ms. Uditha Chakravarthyfor M/s. Lex Regis Law Offices, Roy Abraham, Ms. Reena Roy, AkhilAbraham Roy, Mrs. Rajni Ohri Lal, Yaduinder Lal, Himinder Lal, Advs.for the Petitioner.

Jay Savla, Sr. Advs., Kapil Sibal, Jasdeep Dhillon, Ms. MohinaAnand, Anurag, Prabhat Chaurasia, Ms. Renuka Sahu, Sanjeev Agarwal,Ms. P. Ankleshwari, Rohit Sharma, Shlok Chandra, Mukul Katyal, RishabhParikh, Ms. Aparajita jamwal, Nimit Saigal, Ms. Malavika Rajkotia,Ajunee Singh, Ms. Devina Malviya, Ms. Shrieya Maheshwari, VikrantPachandra, Ms. Mansie Jain, Rohit Sharma, Ashok Kumar, Advs. forthe Respondent.

The Judgment of the Court was delivered by

SANJIV KHANNA, J.

Background.

The issues before this Constitution Bench, as adumbrated below,arise primarily from the order dated 12.05.2010 passed in T.P. (C) No.899 of 2007, Neeti Malviya v. Rakesh Malviya, wherein bench oftwo judges had doubted the view expressed in Anjana Kishore v. PuneetKishore[1] and Manish Goel v. Rohini Goel[2] that this Court, in exerciseof the power under Article 142 of the Constitution of India, cannot reduceor waive the period of six months for moving the second motion asstipulated in sub-section (2) to Section 13-B of the Hindu Marriage Act,1956[3]. Noticing that this Court, some High Courts and even family courtsin some States had been dispensing with or reducing the period of sixmonths for moving the second motion when there was no possibility

1 (2002) 10 SCC 194. This decision is rendered by three judges’ bench.

2 (2010) 4 SCC 393.

3 For Short, ‘Hindu Marriage Act’.

Awhatsoever of the spouses cohabiting, the following question was referredto three judges’ bench for clear ruling and future guidance:

“(I) Whether the period prescribed in sub-section (2) of Section13-B of the Hindu Marriage Act, 1955 can be waived or reducedby this Court in exercise of its jurisdiction under Article 142 of theBConstitution?”

However, the question was never decided, since T.P. (C) No. 899of 2007 was rendered infructuous as the parties, subsequent to the orderof reference, had dissolved their marriage by mutual consent.

2. In T.P. (C) No. 1118 of 2014[4], Shilpa Shailesh v. VarunCSreenivasan, bench of two judges, vide the order dated 06.04.2015[5],issued notice to the Attorney General for India for addressing argumentson the following issues:

“1. The scope and extent of power of this court under Article 142of the Constitution of India insofar as dispensing with the periodDof notice under Section 13-B of the Hindu Marriage Act, 1955 isconcerned.

2. The stand of the Government with regard to statutoryincorporation of irretrievable break-down of marriage as one ofthe conditions for grant of divorce.E

3. Any other incidental and ancillary issue that may arise mayalso be addressed by the learned Attorney General.”

3. The Attorney General for India, in paragraph 5 of his writtensubmissions, had suggested two additional questions of law, which readthus:F

“In view of the decisions of the Hon’ble Court in the above cases,the view of the Hon’ble Court that divorce can be granted on theground of “irretrievable break-down of marriage” even in theabsence of such ground being contemplated by the Legislaturemay require consideration by the Constitution Bench.G

4 Tagged with T.P. (Crl) No. 96 of 2014, T.P. (Crl) No. 339 of 2014, T.P. (Crl.) No. 382of 2014, T.P. (Crl.) No. 468 of 2014 and T.P. (C) No. 1481 – 1482 of 2014.

5 T.P. (C) No. 1118 of 2014 along with T.P. (Crl.) No. 382 of 2014, T.P. (Crl.) No. 468of 2014 and T.P. (C) No. 1481 – 1482 of 2014.H

Similarly, the issue as to whether the period prescribed in sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955 canbe waived or reduced by this Court in exercise of its jurisdictionunder Article 142 of the Constitution also requires considerationby the Constitution Bench.”

4. T.P. (C) No. 1118 of 2014[6] was effectively disposed of vide theorder dated 06.05.2015 dissolving the marriage by grant of divorce bymutual consent with the two judges’ bench exercising jurisdiction underArticle 142 of the Constitution of India. However, in view the conflictingratio of the judgments of this Court on the applicability of the power andjurisdiction of this Court under Article 142 of the Constitution of India,the two judges’ bench of this Court deferred the transfer petition toremain pending for statistical purposes, and formulated the followingquestions of law to be decided by three judges’ bench:

“4. Notwithstanding the above order passed by us, for the purposesof statistics the present transfer petitions shall remain pending aswe are of the view that an issue of some importance needs to beaddressed by the Court in view of the huge number of requestsfor exercise of power under Article 142 of the Constitution thathas confronted this Court consequent to settlement arrived at byand between the husband and the wife to seek divorce by mutualconsent.

5. The questions are formulated herein below:

1. “What could be the broad parameters for exercise of powersunder Article 142 of the Constitution to dissolve marriagebetween the consenting parties without referring the parties tothe Family Court to wait for the mandatory period prescribed underSection 13-B of the Hindu Marriage Act.

2. Whether the exercise of such jurisdiction under Article 142should not be made at all or whether such exercise should be leftto be determined in the facts of every case.”

5. Thereafter, vide the order dated 29.06.2016, another bench oftwo judges of this Court, on examining the questions formulated in T.P.

(C) No. 1118 of 2014, referred to Article 145(3) of the Constitution of

6 Along with T.P.(Crl.) No. 382 of 2014, T.P.(Crl.) No. 468 of 2014 and T.P.(C) No.1481 – 1482 of 2014.

AIndia, and relying on Pradip Chandra Parija and Others v. PramodChandra Patnaik and Others[7], accepted the submission made by theAttorney General for India to refer the questions formulated in T.P. (C)No. 1118 of 2014 for consideration of the Constitution Bench[8]. It wasleft to the discretion of the Constitution Bench to decide whether it wouldbe inclined to consider the two questions of law indicated by the AttorneyBGeneral for India.

6. This Constitution Bench, after hearing the parties, vide the orderdated 20.09.2022, had deemed it appropriate to formulate another questionof law, which reads thus:

C“We do believe that another question which would requireconsideration would be whether the power under Article 142 ofthe Constitution of India is inhibited in any manner in scenariowhere there is an irretrievable breakdown of marriage in the opinionof the Court but one of the parties is not consenting to the terms.”

D7. Accordingly, the following substantial questions of law arise forconsideration before us:

(i)The scope and ambit of power and jurisdiction of this Courtunder Article 142(1) of the Constitution of India;

(ii)Secondly, in view of, and depending upon the findings ofEthis bench on the first question, whether this Court, whilehearing transfer petition, or in any other proceedings, canexercise power under Article 142(1) of the Constitution ofIndia, in view of the settlement between the parties, andgrant decree of divorce by mutual consent dispensing withFthe period and the procedure prescribed under Section 13-B of the Hindu Marriage Act, and also quash and disposeof other/connected proceedings under the Protection ofWomen from Domestic Violence Act, 2005[9], Section 125of the Code of Criminal Procedure, 1973[10], or criminalprosecution primarily under Section 498-A and otherGprovisions of the Indian Penal Code, 1860[11]. If the answer

7 (2002) 1 SCC 1.

8 We are not examining and commenting on the ratio expounded in Pradip ChandraParija & Others (supra).

9 For short, ‘Domestic Violence Act’.

10 For short, ‘Cr.P.C.’.H11 For short, ‘I.P.C.’.

to this question is in the affirmative, in which cases andunder what circumstances should this Court exercisejurisdiction under Article 142(1) of the Constitution of Indiais an ancillary issue to be decided; and

(iii)The third issue, which is of considerable importance, iswhether this Court can grant divorce in exercise of powerunder Article 142(1) of the Constitution of India when thereis complete and irretrievable breakdown of marriage in spiteof the other spouse opposing the prayer.

Article 142(1) of the Constitution of India.

8. Article 142(1) of the Constitution of India reads:

“142. Enforcement of decrees and orders of Supreme Courtand orders as to discovery, etc.—(1) The Supreme Court inthe exercise of its jurisdiction may pass such decree or makesuch order as is necessary for doing complete justice in any causeor matter pending before it, and any decree so passed or order somade shall be enforceable throughout the territory of India in suchmanner as may be prescribed by or under any law made byParliament and, until provision in that behalf is so made, in suchmanner as the President may by order prescribe.”

This provision, apparently unique as it does not have any counterpartin most of the major written constitutions of the world[12], has its origin inand is inspired from the age-old concepts of justice, equity, and goodconscience. Article 142(1) of the Constitution of India, which gives wideand capacious power to the Supreme Court to do ‘complete justice’ inany ‘cause or matter’ is significant, as the judgment delivered by thisCourt ends the litigation between the parties. Given the expansiveamplitude of power under Article 142(1) of the Constitution of India, theexercise of power must be legitimate, and clamours for caution, mindfulof the danger that arises from adopting an individualistic approach as tothe exercise of the Constitutional power.

9. Interpreting Article 142(1) of the Constitution of India, inM. Siddiq (Dead) Through Legal Representatives (Ram

12 The Constitutions of Bangladesh and Nepal have provisions similar to Article 142 ofthe Constitution of India, suggesting that they have drawn inspiration from Article 142of the Constitution of India.

AJanmabhumi Temple Case) v. Mahant Suresh Das and Others[13],the Constitution Bench of this Court has summarised the contours of thepower as:

“1023. …The phrase ‘is necessary for doing complete justice’ isof wide amplitude and encompasses power of equity which isBemployed when the strict application of the law is inadequate toproduce just outcome. The demands of justice require closeattention not just to positive law but also to the silences of positivelaw to find within its interstices, solution that is equitable andjust. The legal enterprise is premised on the application of generallyworded laws to the specifics of case before courts. TheCcomplexities of human history and activity inevitably lead to uniquecontests “such as in this case, involving religion, history and thelaw — which the law, by its general nature, is inadequate to dealwith. Even where positive law is clear, the deliberately wideamplitude of the power under Article 142 empowers court toDpass an order which accords with justice. For justice is thefoundation which brings home the purpose of any legal enterpriseand on which the legitimacy of the rule of law rests. The equitablepower under Article 142 of the Constitution brings to fore theintersection between the general and specific. Courts may findthemselves in situations where the silences of the law need to beEinfused with meaning or the rigours of its rough edges need to besoftened for law to retain its humane and compassionate face...”

Words in the above quotation that ‘the equitable power underArticle 142 of the Constitution of India brings to fore the intersectionbetween the general and specific’ laws, should be read as making aFreference to the classification of equity by Professor C.K. Allen[14] intwo principle forms: (i) liberal and humane interpretation of law ingeneral, so far as that is possible without actual antagonism to the lawitself – called equity in general; and (ii) liberal and humane modificationof the law in exceptional cases, not coming within the ambit of the generalGrule – called particular equity.[15] The words ‘cause or matter’ in Article142(1) of the Constitution of India, which particularise and empowerthis Court to do ‘complete justice’ in that ‘cause or matter’, are relatable

13 (2020) 1 SCC 1.

14 ‘See – C.K. Allen, Law in the Making (Clarendon Press, Oxford, 1927).

15 See – Ninad Laud, Rationalising “Complete Justice” under Article 142, (2021) 1 SCCHJ-30.

to particular equity[16]. This is the reason that it has been held that Article142(1) of the Constitution of India turns the maxim ‘equity follows thelaw’ on its head, as this Article in the Constitution of India gives legalauthority to this Court to give precedence to equity over law. This power,like all powers under the Constitution of India, must be contained andregulated, as it has been held that relief based on equity should notdisregard the substantive mandate of law based on underlying fundamentalgeneral and specific issues of public policy. Subject to this limitation, thisCourt, while moulding relief, can go to the extent of relaxing the applicationof law to the parties or exempting the parties altogether from the rigoursof the law, in view of the particular facts and circumstances of the case.[17]In I. C. Golak Nath and Others v. State of Punjab and Another[18], K.Subba Rao, CJ., while invoking the doctrine of prospective overruling,held that the power under Article 142(1) of the Constitution of India iswide and elastic, and enables this Court to formulate legal doctrines tomeet the ends of justice, and the only limitation thereon is reason, restraintand injustice. Restraint and deference are facets of the Rule of Law,and when it comes to the separation of the role and functions of thelegislature, the executive and the judiciary, the exercise of power by thisCourt to do ‘complete justice’, being for ‘cause or matter’, does notinterfere with and encroach on the legislature’s power and function tolegislate. Clearly, when this Court exercises jurisdiction conferred byArticle 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 ofIndia. The power specifically bestowed by the Constitution of India onthe apex court of the country is with purpose, and should be consideredas integral to the decision in ‘cause or matter’. To do ‘complete justice’is the utmost consideration and guiding spirit of Article 142(1) of theConstitution of India.

10. In Union Carbide Corporation and Others v. Union of Indiaand Others[19], this Court laid specific emphasis on the expression ‘causeor matter’ to observe that ‘cause’ means any action or criminal

16 As this Court interprets the law and adjudicates specific cases, in many case, itexercises and applies both equity in general and particular equity. Also see – distinctionbetween ‘cause’ and ‘matter’.

17 See – State (Through Central Bureau of Investigation) v. Kalyan Singh (Former ChiefMinister of Uttar Pradesh) and Others, (2017) 7 SCC 444.

18 AIR 1967 SC 1643.

19 (1991) 4 SCC 584.

ABC

DEF

Aproceedings, and ‘matter’ means any proceedings in the court and not ina ‘cause’. The words ‘cause or matter’, when used together, coveralmost every kind of proceedings in court, whether civil or criminal,interlocutory or final, before or after judgment. Having held so, this Courtobserved thus:

B“83. It is necessary to set at rest certain misconceptions in thearguments touching the scope of the powers of this Court underArticle 142(1) of the Constitution. These issues are matters ofserious public importance. The proposition that provision in anyordinary law irrespective of the importance of the public policy onwhich it is founded, operates to limit the powers of the apex CourtCunder Article 142(1) is unsound and erroneous. In both Garg aswell as Antulay cases the point was one of violation ofconstitutional provisions and constitutional rights. The observationsas to the effect of inconsistency with statutory provisions werereally unnecessary in those cases as the decisions in the ultimateDanalysis turned on the breach of constitutional rights. We agreewith Shri Nariman that the power of the Court under Article 142insofar as quashing of criminal proceedings are concerned is notexhausted by Section 320 or 321 or 482 CrPC or all of them puttogether. The power under Article 142 is at an entirely differentlevel and of different quality. Prohibitions or limitations or

Eprovisions contained in ordinary laws cannot, ipso facto, act asprohibitions or limitations on the constitutional powers under Article142. Such prohibitions or limitations in the statutes might embodyand reflect the scheme of particular law, taking into account thenature and status of the authority or the court on which conferment

Fof powers — limited in some appropriate way — is contemplated.The limitations may not necessarily reflect or be based on anyfundamental considerations of public policy. Sri Sorabjee, learnedAttorney General, referring to Garg case, said that limitation onthe powers under Article 142 arising from “inconsistency withexpress statutory provisions of substantive law” must really meanGand be understood as some express prohibition contained in anysubstantive statutory law. He suggested that if the expression‘prohibition’ is read in place of ‘provision’ that would perhapsconvey the appropriate idea. But we think that such prohibitionshould also be shown to be based on some underlying fundamentalHand general issues of public policy and not merely incidental to

particular statutory scheme or pattern. It will again be whollyincorrect to say that powers under Article 142 are subject to suchexpress statutory prohibitions. That would convey the idea thatstatutory provisions override constitutional provision. Perhaps,the proper way of expressing the idea is that in exercising powersunder Article 142 and in assessing the needs of “complete justice”of cause or matter, the apex Court will take note of the expressprohibitions in any substantive statutory provision based on somefundamental principles of public policy and regulate the exerciseof its power and discretion accordingly. The proposition does notrelate to the powers of the Court under Article 142, but only towhat is or is not ‘complete justice’ of cause or matter and in theultimate analysis of the propriety of the exercise of the power. Noquestion of lack of jurisdiction or of nullity can arise.”11. Whether this ratio is in conflict with the earlier decisions[20] ofthis Court, including Prem Chand Garg and Another v. The ExciseCommissioner, U.P. and Others[21], wherein five judges of theConstitution Bench had held that this power under Article 142(1) of theConstitution of India cannot be employed to make an order plainlyinconsistent with the express statutory provision or substantive law, muchless inconsistent with any Constitutional provisions, was examined byanother five judges’ bench of this Court in Supreme Court BarAssociation v. Union of India and Another[22], to observe that therewas no conflict of ratios as elucidated in Union Carbide Corporation(supra) and other cases. It is one thing to state that prohibitions orlimitations cannot come in the way of the exercise of jurisdiction underArticle 142(1) of the Constitution of India to do ‘complete justice’ between

20 A.R. Antulay v. R.S. Nayak and Another, (1988) 2 SCC 602; Delhi Judicial ServiceAssociation, Tis Hazari Court, Delhi v. State of Gujarat and Others, (1991) 4 SCC 406;and Mohammed Anis v. Union of India and Others, 1994 Suppl. (1) SCC 145. InMohammed Anis , this Court, while elucidating and unfolding the aspect of publicpolicy and when it would operate to limit the power of the Supreme Court, observesthat given the nature of power conferred by the Constitution of India on this Courtunder Article 142 of the Constitution of India, which is of different quality and level,prohibitions or limitations on provisions contained in ordinary laws cannot ipso factoact as prohibitions or limitations on the Constitutional power under Article 142 of theConstitution of India. The decision observes that mere reference to larger bench doesnot prohibit this Court in given case from its exercise of powers conferred underArticle 142 of the Constitution of India.21 AIR 1963 SC 996.22 (1998) 4 SCC 409.

Athe parties in the pending ‘cause or matter’ arising out of that statute,but quite different thing to say that, while exercising jurisdiction underArticle 142(1) of the Constitution of India, this Court can altogetherignore the substantive provisions of the statute dealing with the subjectand pass orders concerning an issue which can be settled only through amechanism prescribed in the statute.[23] These observations were in theBcontext of the powers conferred on the State Bar Councils under theAdvocates Act, 1961, which, at the first instance, is empowered to decidewhether an advocate is guilty of professional misconduct depending onthe gravity and nature of his contumacious conduct. This Court, inSupreme Court Bar Association (supra), has highlighted that theCjurisdiction of the Supreme Court in contempt, and the jurisdiction of theState Bar Councils under the Advocates Act, 1961 are separate anddistinct, and are exercisable by following separate and distinct procedures.The power to punish for contempt of court vests exclusively with thecourts, whereas the power to punish an advocate for professionalmisconduct has been vested with the concerned State Bar Council andDthe Bar Council of India. In this context, we would like to quote thefollowing passages from Supreme Court Bar Association (supra):

“47. The plenary powers of this Court under Article 142 of theConstitution are inherent in the Court and are complementary tothose powers which are specifically conferred on the Court byEvarious statutes though are not limited by those statutes. Thesepowers also exist independent of the statutes with view to docomplete justice between the parties. These powers are of verywide amplitude and are in the nature of supplementary powers.This power exists as separate and independent basis ofFjurisdiction apart from the statutes. It stands upon the foundationand the basis for its exercise may be put on different and perhapseven wider footing, to prevent injustice in the process of litigationand to do complete justice between the parties. This plenaryjurisdiction is, thus, the residual source of power which this Courtmay draw upon as necessary whenever it is just and equitable toGdo so and in particular to ensure the observance of the due processof law, to do complete justice between the parties, whileadministering justice according to law. There is no doubt that it isan indispensable adjunct to all other powers and is free from the

23 There is also distinction between existence of power, and proper exercise of power inHa given case, which aspect we have subsequently examined in paragraph 20.

restraint of jurisdiction and operates as valuable weapon in thehands of the Court to prevent “clogging or obstruction of the streamof justice”. It, however, needs to be remembered that the powersconferred on the Court by Article 142 being curative in naturecannot be construed as powers which authorise the Court to ignorethe substantive rights of litigant while dealing with causepending before it. This power cannot be used to “supplant”substantive law applicable to the case or cause under considerationof the Court. Article 142, even with the width of its amplitude,cannot be used to build new edifice where none existed earlier,by ignoring express statutory provisions dealing with subjectand thereby to achieve something indirectly which cannot beachieved directly. Punishing contemner advocate, while dealingwith contempt of court case by suspending his licence to practice,a power otherwise statutorily available only to the Bar Council ofIndia, on the ground that the contemner is also an advocate, is,therefore, not permissible in exercise of the jurisdiction under Article142. The construction of Article 142 must be functionally informedby the salutary purposes of the article, viz., to do complete justicebetween the parties. It cannot be otherwise. As already noticedin case of contempt of court, the contemner and the court cannotbe said to be litigating parties.

48. The Supreme Court in exercise of its jurisdiction under Article142 has the power to make such order as is necessary for doingcomplete justice “between the parties in any cause or matterpending before it”. The very nature of the power must lead theCourt to set limits for itself within which to exercise those powersand ordinarily it cannot disregard statutory provision governinga subject, except perhaps to balance the equities between theconflicting claims of the litigating parties by “ironing out thecreases” in cause or matter before it. Indeed this Court is not acourt of restricted jurisdiction of only dispute-settling. It is wellrecognised and established that this Court has always been law-maker and its role travels beyond merely dispute-settling. It is a“problem-solver in the nebulous areas” but the substantive statutoryprovisions dealing with the subject-matter of given case cannotbe altogether ignored by this Court, while making an order underArticle 142. Indeed, these constitutional powers cannot, in anyway, be controlled by any statutory provisions but at the same

188SUPREME COURT REPORTS

Atime these powers are not meant to be exercised when theirexercise may come directly in conflict with what has beenexpressly provided for in statute dealing expressly with thesubject.”

12. We must, at this stage, as noticed in Union CarbideBCorporation (supra), draw distinction between the Constitutional powerexercisable by this Court under Article 142(1) of the Constitution ofIndia, and the inherent power of the civil court recognised by Section151 of the C.P.C. and the inherent power of the High Court under Section482 Cr.P.C., which provisions empower the civil court in civil cases andthe High Court in criminal cases to pass such orders as may be necessaryCto meet the ‘ends of justice’ or to prevent abuse of the process of court.The expression ‘ends of justice’ refers to the best interest of the publicwithin the four corners of the law, albeit the courts are not empoweredto act contrary to the procedure on the particular aspect of law providedin the C.P.C. and the Cr.P.C. Where the C.P.C. and the Cr.P.C. areDsilent, the civil court or the High Court,[24] respectively, can pass orders inthe interest of the public, for the simple reason that no legislation iscapable of contemplating all possible circumstances that may arise infuture litigation and consequently provide procedure for them[25]. Thus,the C.P.C. and the Cr.P.C. should not be read as to limit or otherwiseaffect the inherent power of the civil court and the High Court,Erespectively, to make such order as is necessary for the ‘ends of justice’,or to prevent abuse of the process of the court.[26] The Constitutionalpower conferred by Article 142(1) of the Constitution of India on thisCourt is not replication of the inherent power vested with the civilcourt under the C.P.C., and the High Court under the Cr.P.C.F13. Given the aforesaid background and judgments of this Court,the plenary and conscientious power conferred on this Court under Article142(1) of the Constitution of India, seemingly unhindered, is tempered or

24 For Section 151 C.P.C. see – Jet Ply Wood (P.) Ltd. and Another v. Madhukar Nowlakhaand Others, (2006) 3 SCC 699; and Bhagat Singh Bugga v. Dewan Jagbir Sawhney,1941 SCC OnLine Cal 247. For Section 482 Cr.P.C. see – Popular Muthiah v. StateGRepresented By Inspector Of Police, (2006) 7 SCC 296; and Dinesh Dutt Joshi v. Stateof Rajasthan and Another, (2001) 8 SCC 570.

25 This statement on legislation is equally true, if not truer, for exercise of power by thisCourt under Article 142(1) of the Constitution of India.

26 Earlier judgments of different High Courts in Bhim Singh v. Kan Singh, 2003 SCCOnLine Raj 326; Nagen Kundu v. Emperor, 1934 SCC OnLine Cal 12; and Chhail DasHv. State of Haryana, 1974 SCC OnLine P&H 246, relating to the Cr.P.C., hold that the

bounded by restraint, which must be exercised based on fundamentalconsiderations of general and specific public policy. Fundamental generalconditions of public policy refer to the fundamental rights, secularism,federalism, and other basic features of the Constitution of India. Specificpublic policy should be understood as some express pre-eminentprohibition in any substantive law, and not stipulations and requirementsto particular statutory scheme. It should not contravene fundamentaland non-derogable principle at the core of the statute. Even in the strictestsense[27], it was never doubted or debated that this Court is empoweredunder Article 142(1) of the Constitution of India to do ‘complete justice’without being bound by the relevant provisions of procedure, if it isCr.P.C. is deemed to be exhaustive when covered by provision, but where case ariseswhich demands exercise of discretion, which is not within the provisions that theCr.P.C. specifically provides, it would be reasonable to say that the court has power tomake such order as the ‘ends of justice’ require. Every criminal court, including thecourt of Metropolitan Magistrate, has this power, notwithstanding the specificpower conferred under Section 482 of the Cr.P.C. on the High Court.

27 Some jurists have opined that the judgments on the powers of this Court underArticle 142(1) of the Constitution of India can be divided into three phases. The firstphase till late 1980s is reflected in the judgments of Prem Chand Garg (supra) and A.R.Antulay (supra), which inter alia held that the directions should not be repugnant to andin violation of specific statutory provision and is limited to deviation from the rules ofprocedure. Further, the direction must not infringe the Fundamental Rights of theindividual, which proposition has never been doubted and holds good in phase two andthree. The second phase has its foundation in the ratio of the judgment of the 11-JudgeConstitution Bench of this Court in I. C. Golak Nath (supra), dealing with the doctrineof prospective overruling, which held that Articles 32, 141 and 142 are couched in suchwide and elastic terms as to enable this Court to formulate legal doctrines to meet theends of justice, the only limitation thereon being reason, restraint and injustice. In DelhiJudicial Service Association (supra), this Court observes that any prohibition orrestriction contained in ordinary laws cannot act as limitation on the constitutionalpower of this Court to issue any order or direction to do ‘complete justice’ in any‘cause’ or ‘matter’. Finally, the moderated approach has its origin in Union CarbideCorporation (supra), which holds that this Court, in exercising powers under Article142 and in assessing the needs of ‘complete justice’ of ‘cause’ or ‘matter’, will takenote of the express prohibitions in any substantive statutory provision based on somefundamental principles of public policy and regulate the exercise of its power anddiscretion accordingly. The judgment of Supreme Court Bar Association (supra), appliescautious and balanced approach, to hold that Article 142 being curative in nature and aconstitutional power cannot be controlled by any statutory provision, but this poweris not meant to be exercised ignoring the statutory provisions or directly in conflictwith what is expressly provided in the statute. At the same-time, it observes, that thisCourt will not ordinarily discard statutory provision governing the subject, exceptperhaps to balance the equities between the conflicting claims of the parties to “ironout the creases” in ‘cause or matter’ before it. [See - Rajat Pradhan, Ironing out the

Asatisfied that the departure from the said procedure is necessary to do‘complete justice’ between the parties.[28] Difference between proceduraland substantive law in jurisprudential terms is contentious, albeit notnecessary to be examined in depth in the present decision[29], as in termsof the dictum enunciated by this Court in Union Carbide Corporation(supra) and Supreme Court Bar Association (supra), exercise of powerBunder Article 142(1) of the Constitution of India to do ‘complete justice’in ‘cause or matter’ is prohibited only when the exercise is to pass anorder which is plainly and expressly barred by statutory provisions ofsubstantive law based on fundamental considerations of general orspecific public policy. As explained in Supreme Court Bar AssociationC(supra), the exercise of power under Article 142(1) of the Constitutionof India being curative in nature, this Court would not ordinarily pass anorder ignoring or disregarding statutory provision governing the subject,except to balance the equities between conflicting claims of the litigatingparties by ironing out creases in ‘cause or matter’ before it. In thissense, this Court is not forum of restricted jurisdiction when it decidesDand settles the dispute in ‘cause or matter’. While this Court cannotsupplant the substantive law by building new edifice where none existedearlier, or by ignoring express substantive statutory law provisions, it is aproblem-solver in the nebulous areas. As long as ‘complete justice’required by the ‘cause or matter’ is achieved without violating fundamentalEprinciples of general or specific public policy, the exercise of the powerand discretion under Article 142(1) is valid and as per the Constitution ofIndia. This is the reason why the power under Article 142(1) of theConstitution of India is undefined and uncatalogued, so as to ensureelasticity to mould relief to suit given situation. The fact that the poweris conferred only on this Court is an assurance that it will be used withFdue restraint and circumspection.[30]

Creases: Re-examining the Contours of Invoking Article 142(1) of the Constitution,(2011) 6 NSLR 1; Ninad Laud, Rationalising “Complete Justice” under Article 142,(2021) 1 SCC J-30; and Virendra Kumar, Notes and Comments: Judicial LegislationGUnder Article 142 of the Constitution: Pragmatic Prompt for Proper Legislation byParliament, 54 JILI (2012) 364]. As observed by us, the ratio as expounded in UnionCarbide Corporation (supra) holds good and applies.

28 See – Prem Chand Garg (supra), paragraph 13.

29 However, this aspect has been, to some extent, examined in paragraphs 16 to 22 and30 infra.

30 See – Delhi Development Authority v. Skipper Construction Co. (P) Ltd. And Another,H(1996) 4 SCC 622.

Hindu marriage and divorce under the Hindu Marriage Act,1955.

14. Hindu marriage is traditionally considered to be sacred union;a devout relationship that lasts till eternity. The Hindu Marriage Actprovides the right to approach the court for dissolution of Hindu marriageby grant of decree of divorce on the grounds mentioned in Section 13thereof. The provisions of the Hindu Marriage Act have undergoneconsiderable changes over period of time. Section 13(1)(i-a) wasenacted by the Marriage Laws (Amendment) Act, 1976[31] to provide fordivorce in cases of cruelty. Section 13-B of the Hindu Marriage Actwas introduced for providing divorce by mutual consent. Explanationwas added to Section 9 of the Hindu Marriage Act, which relates torestitution of conjugal rights, stating that where question of whetherthere has been reasonable excuse for withdrawal from society arises,the burden of proving reasonable excuse shall be on the person who hasso withdrawn from the society. The effect of the said amendment, asnoticed below, partially dilutes the rigours of sub-section (1)(a) to Section23 of the Hindu Marriage Act, which stipulates that the court, whileexamining whether any ground for granting relief exists, should be satisfiedthat the petitioner is not, in any way, taking advantage of his/her ownwrong or disability for the purpose of such relief.

15. Section 13-B of the Hindu Marriage Act reads as under:

“13-B. Divorce by mutual consent.—(1) Subject to theprovisions of this Act petition for dissolution of marriage by adecree of divorce may be presented to the district court by boththe parties to marriage together, whether such marriage wassolemnized before or after the commencement of the MarriageLaws (Amendment) Act, 1976 (68 of 1976), on the ground thatthey have been living separately for period of one year or more,that they have not been able to live together and that they havemutually agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier than sixmonths after the date of the presentation of the petition referredto in sub-section (1) and not later than eighteen months after thesaid date, if the petition is not withdrawn in the meantime, thecourt shall, on being satisfied, after hearing the parties and after

Amaking such inquiry as it thinks fit, that marriage has beensolemnized and that the averments in the petition are true, pass adecree of divorce declaring the marriage to be dissolved witheffect from the date of the decree.”

16. Section 13-B(1) of the Hindu Marriage Act states that decreeBof divorce may be granted on joint petition by the parties on fulfilmentof the following conditions:

(a) the parties have been living separately for period of oneyear or more before presentation of the petition;

(b) they have not been able to live together; and

(c) they have mutually agreed that the marriage should bedissolved.

Sub-section (2) to Section 13-B of the Hindu Marriage Act providesthat after the first motion is passed, the couple/parties would have toDmove to the court with the second motion, if the petition is not withdrawnin the meanwhile, after six months and not later than eighteen months ofthe first motion. No action can be taken by the parties before the lapseof six months since the first motion. When the second motion is filed, thecourt is to make an inquiry, and on satisfaction that the averments madein the petition are true, decree of divorce is granted. Clearly, theElegislative intent behind incorporating sub-section (2) to Section 13-B ofthe Hindu Marriage Act is that the couple/party must have time tointrospect and consider the decision to separate before the second motionis moved. However, there are cases of exceptional hardship, where aftersome years of acrimonious litigation and prolonged suffering, the parties,Fwith view to have fresh start, jointly pray to the court to dissolve themarriage, and seek waiver of the need to move the second motion. Onaccount of irreconcilable differences, allegations and aspersions madeagainst each other and the family members, and in some cases multiplelitigations including criminal cases, continuation of the marital relationshipis an impossibility. The divorce is inevitable, and the cooling off period ofGsix months, if at all, breeds misery and pain, without any gain and benefit.These are cases where the object and purpose behind sub-section (2) toSection 13-B of the Hindu Marriage Act to safeguard against hurriedand hasty decisions are not in issue and question, and the proceduralrequirement to move the court with the second motion after gap of sixmonths acts as an impediment in the settlement. At times, payment ofH

alimony and permanent lump-sum maintenance gets delayed, whileanxiety and suspicion remain. Here, the procedure should give way to alarger public and personal interest of the parties in ending the litigation(s),and the pain and sorrow effected, by passing formal decree of divorce,as de-facto the marriage had ended much earlier.

17. Analysing the provisions of sub-section (2) to Section 13-B ofthe Hindu Marriage Act, this Court in Amardeep Singh v. HarveenKaur[32] went into the question of whether the cooling off period of sixmonths is mandatory or discretionary. It was held that the cooling offperiod can be waived by the court where the proceedings have remainedpending for long in the courts, these being cases of exceptional situations.It was held thus:

“14. The learned Amicus Curiae submitted that waiting periodenshrined under Section 13-B(2) of the Act is directory and canbe waived by the court where proceedings are pending, inexceptional situations. This view is supported by the judgments ofthe Andhra Pradesh High Court in K. Omprakash v. K. Nalini,Karnataka High Court in Roopa Reddy v. Prabhakar Reddy,Delhi High Court in Dhanjit Vadra v. Beena Vadra and MadhyaPradesh High Court in Dineshkumar Shukla v. Neeta. Contraryview has been taken by the Kerala High Court in M. KrishnaPreetha v. Jayan Moorkkanatt. It was submitted that Section13-B(1) relates to jurisdiction of the court and the petition ismaintainable only if the parties are living separately for periodof one year or more and if they have not been able to live togetherand have agreed that the marriage be dissolved. Section 13-B(2)is procedural. He submitted that the discretion to waive the periodis guided discretion by consideration of interest of justice wherethere is no chance of reconciliation and parties were alreadyseparated for longer period or contesting proceedings for periodlonger than the period mentioned in Section 13-B(2). Thus, thecourt should consider the questions:

(i)How long parties have been married?

(ii)How long litigation is pending?

(iii)How long they have been staying apart?

A(iv)Are there any other proceedings between the parties?

(v)Have the parties attended mediation/ conciliation?

(vi)Have the parties arrived at genuine settlement which takescare of alimony, custody of child or any other pending issuesbetween the parties?B

19. Applying the above to the present situation, we are of theview that where the court dealing with matter is satisfied that acase is made out to waive the statutory period under SectionC13-B(2), it can do so after considering the following:

(i)the statutory period of six months specified in Section13-B(2), in addition to the statutory period of one year underSection 13-B(1) of separation of parties is already overbefore the first motion itself;

D(ii)all efforts for mediation/conciliation including efforts in termsof Order 32-A Rule 3 CPC/Section 23(2) of the Act/Section9 of the Family Courts Act to reunite the parties have failedand there is no likelihood of success in that direction by anyfurther efforts;

E(iii)the parties have genuinely settled their differences includingalimony, custody of child or any other pending issues betweenthe parties;

(iv)the waiting period will only prolong their agony.

The waiver application can be filed one week after the first motionFgiving reasons for the prayer for waiver. If the above conditionsare satisfied, the waiver of the waiting period for the second motionwill be in the discretion of the court concerned.”

The time gap is meant to enable the parties to cogitate, analyseand take deliberated decision. The object of the cooling off period isGnot to stretch the already disintegrated marriage, or to prolong the agonyand misery of the parties when there are no chances of the marriageworking out. Therefore, once every effort has been made to salvage themarriage and there remains no possibility of reunion and cohabitation,the court is not powerless in enabling the parties to avail better option,Hwhich is to grant divorce. The waiver is not to be given on mere asking,but on the court being satisfied beyond doubt that the marriage hasshattered beyond repair. The judgment in Amardeep Singh (supra) refersto several questions that the court would ask before passing an orderone way or the other. However, this judgment proceeds on theinterpretation of Section 13-B(2) of the Hindu Marriage Act, and doesnot examine whether this Court can take on record settlementagreement and grant divorce by mutual consent under Section 13-B ofthe Hindu Marriage Act in exercise of the power under Article 142(1) ofthe Constitution of India.

18. We must acknowledge that this Court has very oftenentertained applications/prayers for divorce by mutual consent underSection 13-B of the Hindu Marriage Act, and passed decree of divorcewithout relegating or asking the parties to move joint motion before thetrial court. In such cases, other pending proceedings between the parties,civil and criminal, are appropriately dealt with in terms of the settlement,and are decreed, quashed or closed accordingly. This situation ariseswhen proceedings are pending in this Court against an interim or finalorder passed in judicial proceeding, or on transfer petition being filedbefore this Court. The parties may mutually agree to dissolve the marriage,albeit on many occasions they enter into settlements, often throughmediation or on being prompted by the Court. In matrimonial matters,settlement, and not litigation, is the preferable mode of dispute resolution.[33]

19. Exercise of jurisdiction under Article 142(1) of the Constitutionof India by this Court in such cases is clearly permissible to do ‘completejustice’ to ‘cause or matter’. We should accept that this Court canpass an order or decree which family court, trial court or High Courtcan pass. As per Article 142(1) of the Constitution of India, decreepassed or an order made by this Court is executable throughout theterritory of India.[34] Power of this Court under Articles 136 and 142(1) ofthe Constitution of India will certainly embrace and enswathe this powerto do ‘complete justice’, even when the main case/proceeding is pendingbefore the family court, the trial court or another judicial forum. questionor issue of lack of subject-matter jurisdiction does not arise. Settlementsin matrimonial matters invariably end multiple legal proceedings, includingcriminal proceedings in different courts and at diverse locations.Necessarily, in such cases, the parties have to move separate applications

33 See – Section 89 of the C.P.C. and Section 9 of the Family Courts Act, 1984.

34 See – the Supreme Court (Decrees and Orders) Enforcement Order, 1954 (C.O.47).

Ain multiple courts, including the jurisdictional High Court, for appropriaterelief and closure, and disposal and/or dismissal of cases. This puts burdenon the courts in the form of listing, paper work, compliance with formalities,verification etc. Parallelly, parties have to bear the cost, appear beforeseveral forums/courts and the final orders get delayed causing anxietyand apprehension. In this sense, when this Court exercises the powerBunder Article 142(1) of the Constitution of India, it assists and aids thecause of justice.20. However, there is difference between existence of power,and exercise of that power in given case. Existence of power is generallya matter of law, whereas exercise of power is mixed question of lawCand facts. Even when the power to pass decree of divorce by mutualconsent exists and can be exercised by this Court under Article 142(1)of the Constitution of India, when and in which of the cases the powershould be exercised to do ‘complete justice’ in ‘cause or matter’ is anissue that has to be determined independent of existence of the power.DThis discretion has to be exercised on the basis of the factual matrix inthe particular case, evaluated on objective criteria and factors, withoutignoring the objective of the statutory provisions. In Amit Kumar v.Suman Beniwal [35], this Court has held that reading of sub-sections (1)and (2) to Section 13-B of the Hindu Marriage Act envisages totalwaiting period/gap of one and half years from the date of separationEfor the grant of decree of divorce by mutual consent. Once the conditionfor waiting period/gap of one and half year from the date of separationis fulfilled, it can be safely said that the parties had time to ponder, reflectand take conscious decision on whether they should really put themarriage to end for all times to come. This period of separation prevents

Fimpulsive and heedless dissolution of marriage, allows tempers to cooldown, anger to dissipate, and gives the spouses time to forgive and forget.At the same time, when there is complete separation over long periodand the parties have moved apart and have mutually agreed to separate,it would be incoherent to perpetuate the litigation by asking the parties to

move the trial court. This Court in Amit Kumar (supra) has observedGthat, in addition to referring to the six factors/questions in AmardeepSingh (supra), this Court should ascertain whether the parties have freely,on their own accord, and without any coercion or pressure arrived at agenuine settlement which took care of the alimony, if any, maintenanceand custody of children, etc.H35 (2021) SCC Online SC 1270.

21. In our opinion, Section 13-B of the Hindu Marriage Act doesnot impose any fetters on the powers of this Court to grant decree ofdivorce by mutual consent on joint application, when the substantiveconditions of the Section are fulfilled and the Court, after referring to thefactors mentioned above, is convinced and of the opinion that the decreeof divorce should be granted.

22. The legislature and the courts treat matrimonial litigations as aspecial, if not unique, category. Public policy underlying the legislationsdealing with family and matrimonial matters is to encourage mutualsettlement, 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. Given that there are multiple legislations governing different aspects,even if the cause of dispute is identical or similar, most matrimonialdisputes lead to miscellany of cases including criminal cases, at timesgenuine, and on other occasions initiated because of indignation, hurt,anger or even misguided advice to teach lesson. The multiplicity oflitigations can restrict and block solutions, as settlement has to be holisticand comprehensive, given that the objective and purpose is to enable theparties to cohabit and live together, or if they decide to part ways, tohave new beginning and settle down to live peacefully. Therefore, inB.S. Joshi and Others v. State of Haryana and Another[36], this Court,notwithstanding that Section 320 of the Cr.P.C. does not permitcompounding of an offence under Section 498A of the I.P.C., has heldthat the High Court, exercising the power under Section 482 of the Cr.P.C.,may quash prosecutions even in non-compoundable offences when theends of justice so require. This view has been affirmed by the threejudges’ bench in Gian Singh v. State of Punjab and Another[37]andreiterated by another three judges’ bench in Jitendra Raghuvanshiand Others v. Babita Raghuvanshi and Another[38]. The reason is thatthe courts must not encourage matrimonial litigation, and prolongation ofsuch litigation is detrimental to both the parties who lose their young agein chasing multiple litigations. Thus, adopting hyper-technical view canbe counter-productive as pendency itself causes pain, suffering andharassment and, consequently, it is the duty of the court to ensure thatmatrimonial matters are amicably resolved, thereby bringing the agony,affliction, and torment to an end. In this regard, the courts only have to

36 (2003) 4 SCC 675.

37 (2012) 10 SCC 303.

38 (2013) 4 SCC 58.

Aenquire and ensure that the settlement between the parties is achievedwithout pressure, force, coercion, fraud, misrepresentation, or undueinfluence, and that the consent is indeed sought by free will and choice,and the autonomy of the parties is not compromised. The latter twodecisions in Gian Singh (supra) and Jitendra Raghuvanshi and Others(supra) observe that the inherent power on the High Court under SectionB482 of the Cr.P.C. is wide and can be used/wielded to quash criminalproceedings to secure the ends of justice and prevent abuse of the processof the court, albeit it has to be exercised sparingly, carefully, and withcaution. This Court, in State of Madhya Pradesh v. Laxmi Narayanand Others[39], has set out guidelines as to when the High Court mayCexercise jurisdiction under the inherent powers conferred under Section482 of the Cr.P.C. for quashing non-compoundable offences in terms ofSection 320 of the Cr.P.C. In view of the above legal position anddiscussion, this Court, on the basis of settlement between the parties,while passing decree of divorce by mutual consent, can set aside andquash other proceedings and orders, including criminal cases and FirstDInformation Report(s), provided the conditions, as specified in theaforementioned judgments, are satisfied.

Grant of divorce on the ground of irretrievable breakdownof marriage in exercise of jurisdiction and power underArticle 142(1) of the Constitution of India.

23. This brings us to the last question of whether this Court, inexercise of power under Article 142(1) of the Constitution of India, cangrant decree of divorce when, upon the prayer of one of the spouses,it is satisfied that there is complete and irretrievable breakdown ofmarriage, notwithstanding the opposition to such prayer by the otherFspouse?

24. Section 13(1)(i-a) of the Hindu Marriage Act, enacted by ActNo. 68 of 1976 with effect from 25[th] May 1976, reads thus:

“13 Divorce.- (1) Any marriage solemnized, whether before orGafter the commencement of this Act, may, on petition presentedby either the husband or the wife, be dissolved by decree ofdivorce on the ground that the other party—

(i-a) has, after the solemnization of the marriage, treated thepetitioner with cruelty; or

This provision often has to be read with clause (a) to Section23(1) of the Hindu Marriage Act, the substantive portion of which wasenacted as part of the main enactment vide Act No. 25 of 1955, andreads:

“23. Decree in proceedings. — (1) In any proceeding underthis Act, whether defended or not, if the court is satisfied that—

(a) any of the grounds for granting relief exists and the petitioner40[except in cases where the relief is sought by him on theground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of Section 5] is not in anyway takingadvantage of his or her own wrong or disability for the purpose ofsuch relief, and

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 ‘faulttheory’, an aspect which we shall subsequently examine. First, we wouldlike to delineate the meaning of the term ‘cruelty’, which expression hasnot been defined in the Hindu Marriage Act.

25. In N.G. Dastane v. S. Dastane[41], as early as 1975, threejudges’ bench of this Court, after referring to the provisions of the IndianEvidence Act, 1972, held that the fact is said to be established if it isproved by preponderance of probabilities, that is, the court believes itto exist or considers its existence so probable that prudent man oughtto, under the circumstances of particular case, act upon the suppositionthat it exists. Often, the belief regarding the existence of fact is foundedon balance of probabilities, that is, the court is to weigh the variousprobabilities to discern the preponderance in favour of the existence of aparticular fact. Holding that the proceedings under the Hindu MarriageAct are civil proceedings, and referring to the provisions of Section 23of the Hindu Marriage Act, it was held that the word ‘satisfied’ must

40 The bracketed portion was enacted vide Act No. 68 of 1976 with effect from27.05.1976.

41 (1975) 2 SCC 326.

Aconnote satisfaction on ‘preponderance of probabilities’ and not ‘beyonda reasonable doubt’. On the meaning of ‘cruelty’ as ground fordissolution of marriage, reference was made to the High Court’s relianceon D. Tolstoy’s passage in The Law and Practice of Divorce andMatrimonial Causes. Therein, ‘cruelty’ has been defined as wilful andunjustified conduct of such character as to cause danger to life, limb orBhealth, bodily or mentally, or as to give rise to reasonable apprehensionof such danger. However, this Court felt that D. Tolstoy’s passage, whichcites Horton v. Horton[42], is not enough to show that the spouses findlife together impossible even if there results injury to health. Accordingly,this Court elucidated that if the danger to health arises merely from theCfact that the spouses find it impossible to live together and one of theparties is indifferent towards the other, the charge of cruelty may perhapsfail. However, harm or injury to health, reputation, the working-careeror the like, would be important considerations in determining whetherthe conduct of the defending spouse amounts to cruelty. The petitionerhas to show that the respondent has treated them with cruelty so as toDcause reasonable apprehension in their mind that it will be harmful orinjurious to live with the contesting spouse. In today’s context, twoobservations, while court enquires into the charge of cruelty, are ofsome significance. First, the court should not philosophise on the modalitiesof married life. Secondly, whether the charge is proved or not cannot beEdecided by applying the principle of whether reasonable man situatedsimilarly will behave in similar manner. What may be cruel to one maynot matter to another, and what may not be cruel to an individual underone set of circumstances may be extreme cruelty under another set ofcircumstances. Cruelty is subjective, that is, it is person, background,and circumstance specific.F

26. V. Bhagat v. D. Bhagat[43], which was pronounced in 1993, 18years after the decision in N.G. Dastane (supra), gives life-likeexpansion to the term ‘cruelty’. This case was between husband whowas practicing as an Advocate, aged about 55 years, and the wife, whowas the Vice President in public sector undertaking, aged about 50Gyears, having two adult children – doctor by profession and an MBAdegree holder working abroad, respectively. Allegations of an adulterouscourse of life, lack of mental equilibrium and pathologically suspicious

42 [1940] P.187.H43 (1994) 1 SCC 337.

character were made against each other. This Court noticed that thedivorce petition had remained pending for more than eight years, and inspite of the directions given by this Court, not much progress had beenmade. It was highlighted that cruelty contemplated under Section 13(1)(i-a) of the Hindu Marriage Act is both mental and physical, albeit acomprehensive definition of what constitutes cruelty would be mostdifficult. Much depends upon the knowledge and intention of the defendingspouse, the nature of their conduct, the character and physical or mentalweakness of the spouses, etc. The sum total of the reprehensible conductor departure from normal standards of conjugal kindness that causesinjury to health, or an apprehension of it, constitutes cruelty. But thesefactors must take into account the temperament and all other specificcircumstances in order to decide that the conduct complained of is suchthat petitioner should not be called to endure it. It was further elaboratedthat cruelty, mental or physical, may be both intentional or unintentional.Matrimonial obligations and responsibilities vary in degrees. They differin each household and to each person, and the cruelty alleged dependsupon the nature of life the parties are accustomed to, or their social andeconomic conditions. They may also depend upon the culture and humanvalues to which the spouses assign significance. There may be instancesof cruelty by unintentional but inexcusable conduct of the other spouse.Thus, there is distinction between intention to commit cruelty and theactual act of cruelty, as absence of intention may not, in given case,make any difference if the act complained of is otherwise regarded ascruel. Deliberate and wilful intention, therefore, may not matter. Paragraph16 of the judgment in V. Bhagat (supra) reads as under:

“16. Mental cruelty in Section 13(1)(i-a) can broadly be definedas that conduct which inflicts upon the other party such mentalpain and suffering as would make it not possible for that party tolive with the other. In other words, mental cruelty must be of sucha nature that the parties cannot reasonably be expected to livetogether. The situation must be such that the wronged party cannotreasonably be asked to put up with such conduct and continue tolive with the other party. It is not necessary to prove that themental cruelty is such as to cause injury to the health of thepetitioner. While arriving at such conclusion, regard must be hadto the social status, educational level of the parties, the societythey move in, the possibility or otherwise of the parties ever living

Atogether in case they are already living apart and all other relevantfacts and circumstances which it is neither possible nor desirableto set out exhaustively. What is cruelty in one case may not amountto cruelty in another case. It is matter to be determined in eachcase having regard to the facts and circumstances of that case. Ifit is case of accusations and allegations, regard must also beBhad to the context in which they were made.”

The Division Bench of this Court in V. Bhagat (supra) has alsoobserved that while irretrievable breakdown of marriage is not groundfor divorce, specific circumstances may have to be borne in mind whileascertaining the type of cruelty contemplated by Section 13(1)(i-a) ofCthe Hindu Marriage Act. These observations, with which we agree, givea different connotation to the ‘fault theory’, as to dilute the strict legalunderstanding of the term ‘cruelty’ for the purpose of Section 13(1)(i-a)of the Hindu Marriage Act. This interpretation is situation, case andperson specific.D27. In Ashok Hurra v. Rupa Bipin Zaveri[44], decided in 1997,this Court was confronted with situation where the marriage had fallenapart and the couple had separated in 1983. They did not have anyspecific issue, but difference of opinion had cropped up between theparties. Further, even after residing separately for thirteen years, theEparties were not agreeable to divorce by mutual consent. This was inspite of the fact that the husband had remarried and had child. ThisCourt was of the view that considering the cumulative effect of variousfactors and the marriage being dead, no useful purpose, both emotionallyand practically, would be served in postponing the inevitability andprolonging the agony of the parties or their marriage and, therefore, theFcurtain should be rung down. This Court, therefore, exercised the powerunder Article 142(1) of the Constitution of India to grant decree ofdivorce, though the conduct of the husband, it was observed, wasblameworthy as he had remarried and conceived child during thependency of the proceedings. This decree of divorce by mutual consentGwas made conditional on payment of Rs.10,00,000/- by the husband tothe wife. Only on payment or deposit of the amount in the Court, allproceedings, including those under Section 494 of the I.P.C., were tostand terminated.28. In Naveen Kohli v. Neelu Kohli[45], three judges’ bench ofthis Court referred to the opinion of Lord Denning, L.J. in Kaslefsky v.Kaslefsky[46] that if the door of cruelty were opened too wide, the courtswould be granting divorce for incompatibility of temperament, but thistemptation must be resisted, lest the institution of marriage is imperilled.At the same time, the bench felt that the concept of legal cruelty haschanged according to the advancement of social concepts and standardsof living. Continuous ill-treatment, cessation of marital intercourse, studiedneglect, indifference on the part of the spouse and allegation of unchastityare all factors that lead to mental or legal cruelty. While doing so, thisCourt affirmed that set of facts stigmatized as cruelty in one case maynot be so in another, as cruelty largely depends on the kind of lifestylethe parties are accustomed to or their social and economic conditions.Similarly, intention, it was observed, was immaterial as there can becruelty even by unintentional conduct. Moreover, mental cruelty is difficultto establish by direct evidence and is to be deciphered by attending tothe facts and circumstances in which the two partners in matrimony hadbeen living. On the question of irretrievable breakdown of marriage,which is not ground for divorce under the Hindu Marriage Act, referencewas made to the fault theory, which is hinged on an accusatorial principleof divorce. Excessive reliance on fault as ground for divorce, the judges’opined, encourages matrimonial offences, increases bitterness and widensthe ongoing rift between the parties. Once serious endeavours forreconciliation have been made, but it is found that the separation isinevitable and the damage is irreparable, divorce should not be withheld.An unworkable marriage, which has ceased to be effective, is futile andbound to be source of greater misery for the parties. The law of divorcebuilt predominantly on assigning fault fails to serve broken marriages.Under the fault theory, guilt has to be proven, and therefore, the courtshave to be presented with concrete instances of adverse humanbehaviour, thereby maligning the institution of marriage. Public interestdemands that the marriage status should, as far as possible, be maintained,but where the marriage has been wrecked beyond the hope of salvage,public interest lies in recognising the real fact. No spouse can be compelledto resume life with consort, and as such, nothing is gained by keepingthe parties tied forever to marriage which has, in fact, ceased to exist.In Naveen Kohli (supra), the parties had been living separately for more

45 (2006) 4 SCC 558.

46 (1950) 2 All ER 398.

Athan decade, and civil and criminal proceedings had been initiated.Therefore, the Court held that the marriage should be dissolved, as wisdomlies in accepting the pragmatic reality of life. The Court should take adecision which would ultimately be conducive to the interest of both theparties. The Court also directed the payment of Rs.25,00,000/- towardspermanent maintenance to the wife.B

29. In 2018, the Supreme Court of the United Kingdom, in Owensv. Owens[47], had the occasion to analyse and evaluate the fault theory asa ground for divorce, which requires one spouse to make allegations onthe conduct of the other. The judgment notes that the courts invariablyface daunting task in finding the truth of why the marriage has collapsed.CApportioning blame is an inherently difficult task, given the fact that thecourt has to find faults in the conduct of the spouses, expecting them tohave neither heroic virtues nor selfless abnegation. As subjectivity isinvolved, the courts find it difficult to evaluate the gravity or otherwiseof the conduct complained of and find the truth. Lord Wilson, with whomDLord Hodge and Lady Black agreed, had referred to the three-fold testto interpret Section 1(2)(b) of the Matrimonial Causes Act 1973 (ofEngland and Wales) to establish whether the marriage had beenirretrievably broken down in such way that the petitioner cannotreasonably be expected to live with the respondent; (i) by reference tothe allegations of behaviour in the petition, to determine what theErespondent did or did not do; (ii) to assess the effect which the behaviourhad upon the particular petitioner in the light of the latter’s personalityand disposition and of all circumstances in which it occurred; and (iii) tomake an evaluation whether as result of the respondent’s behaviourand in the light of its effect on the petitioner, an expectation that the

Fpetitioner should continue to live with the respondent would beunreasonable[48]. Lady Hale, in her judgment, observed that searchingand assigning blame is not vital, as the ground of divorce is based onconduct, and not fault or fact finding to ascertain the party to be blamed.On the other hand, cumulative effect of great number of small incidentsindicative of authoritarian, demeaning and humiliating conduct over aGperiod of time would constitute good ground for divorce. Such conductcan destroy the trust and confidence required to sustain marriage.Further, the effect of the spouse’s behaviour, rather than the behaviour

47 (2018) UKSC 41.

48 These tests, with suitable modification, can well be applied in cases under SectionH13(1)(i-a) of the Hindu Marriage Act.

itself, should make it unreasonable to expect the other spouse to cohabit;this is the question to be answered.

30. We have referred to the judgment in Owens (supra), whichapplies the then law in England and Wales, not as precedent, but tohighlight that even two perfectly gentle and pleasant individuals havingincompatible and clashing personalities can have miserable and morosemarried life. In such cases, fault theory in the pure form requiringapportionment of guilt and blame, is difficult, if not an impossible task,whereas in practical reality the situation is appalling and unnerving. Themarriage is irretrievably broken down and dead. We would not read theprovisions of the Hindu Marriage Act, their underlying intent, and anyfundamental specific issue of public policy, as barring this Court fromdissolving broken and shattered marriage in exercise of theConstitutional power under Article 142(1) of the Constitution of India. Ifat all, the underlying fundamental issues of public policy, as explained inthe judgments of V. Bhagat (supra), Ashok Hurra (supra), and NaveenKohli (supra), support the view that it would be in the best interest of all,including the individuals involved, to give legality, in the form of formaldivorce, to dead marriage, otherwise the litigation(s), resultantsufferance, misery and torment shall continue. Therefore, apportioningblame and greater fault may not be the rule to resolve and adjudicate thedispute in rare and exceptional matrimonial cases, as the rules of evidenceunder the Evidence Act are rules of procedure. When the life-like situationis known indubitably, the essence and objective behind section 13(1)(i-a)of the Hindu Marriage Act that no spouse should be subjected to mentalcruelty and live in misery and pain is established. These rules of proceduremust give way to ‘complete justice’ in ‘cause or matter’. Fault theorycan be diluted by this Court to do ‘complete justice’ in particular case,without breaching the self-imposed restraint applicable when this Courtexercises power under Article 142(1) of the Constitution of India, aselucidated in the judgments referred to above.[49]

31. At this juncture, we would refer to two judgments authored byone of the members of this bench (Sanjay Kishan Kaul, J.) in Munish

49 Explanation to Section 9 of the Hindu Marriage Act, which reads, “Where questionarises whether there has been reasonable excuse for withdrawal from the society, theburden of proving reasonable excuse shall be on the person who has withdrawn fromthe society”, partially mitigates the rigors to Section 23(1)(a) of the Hindu Marriage Actand, consequently, the fault theory.

AKakkar v. Nidhi Kakkar[50] and Sivasankaran v. Santhimeenal[51]. InMunish Kakkar (supra), the parties had been engaged in multifariouslitigations, including divorce proceedings, for almost two decades. Yet,they opposed divorce by mutual consent. The respondent - wife wasbased in Canada, to where she had shifted, and was statedly takingmedication for depression. The appellant - husband complained ofBloneliness and lack of co-habitation, causing mental and physical torture.Several attempts to mediate, and efforts made by counsellors,psychologists, the panchayat and even the courts did not yield results.In these circumstances, this Court exercised the power under Article142(1) of the Constitution of India, recognising the futility of completelyCfailed and broken down marriage. While observing that there was noconsent of the respondent - wife for grant of divorce, the Court felt thatthere was no willingness on her part either to live with the appellant -husband. What was left in the marriage were bitter memories and angst,which increased with the passage of time, as the respondent - wife wasreluctant to let the appellant - husband live his life by getting decree ofDdivorce. In view of the aforesaid position, this Court exercised the powerunder Article 142(1) of the Constitution of India to do ‘complete justice’between the parties. It was also directed that the appellant - husbandwould continue to pay the specified amount per month to the respondent- wife, which amount could be enhanced or reduced by taking recourseEto appropriate proceedings.

32. In Sivasankaran (supra), the marriage had taken place inFebruary 2002, and after about year, divorce proceedings were initiatedand the decree of divorce was passed in 2008 under Section 13(1)(i-a)of the Hindu Marriage Act. The appellant - husband had remarried withinFsix days of the passing of the decree of divorce. The respondent - wifefiled an appeal and the dispute had remained pending till it reached thisCourt. Attempts to resolve the dispute through mediation and settlementbetween the parties bore no fruit. The respondent - wife was resistantto accept the decree of divorce, even though she was aware that themarriage was but only on paper. Observations on the difficulty faced byGwomen in the form of social acceptance after decree of divorce, andalso the need to guarantee financial and economic security wereelucidated. However, this Court, relying on the earlier decisions in Munish

50 (2020) 14 SCC 657.51 2021 SCC OnLine SC 702.H

Kakkar (supra) and R. Srinivas Kumar v. R. Shametha[52], observedthat there was no necessity of consent by both the parties for exerciseof powers under Article 142(1) of the Constitution of India to dissolvethe marriage on the ground of irretrievable breakdown of marriage, albeitthe interest of the wife is also required to be protected financially so thatshe may not have to suffer financially in future and she may not have todepend upon others. Accordingly, this Court passed decree of divorceby exercising the jurisdiction under Article 142(1) of the Constitution ofIndia.33. Having said so, we wish to clearly state that grant of divorceon the ground of irretrievable breakdown of marriage by this Court isnot matter of right, but discretion which is to be exercised with greatcare and caution, keeping in mind several factors ensuring that ‘completejustice’ is done to both parties. It is obvious that this Court should befully convinced and satisfied that the marriage is totally unworkable,emotionally dead and beyond salvation and, therefore, dissolution ofmarriage is the right solution and the only way forward. That the marriagehas irretrievably broken down is to be factually determined and firmlyestablished. For this, several factors are to be considered such as theperiod of time the parties had cohabited after marriage; when the partieshad last cohabited; the nature of allegations made by the parties againsteach other and their family members; the orders passed in the legalproceedings from time to time, cumulative impact on the personalrelationship; whether, and how many attempts were made to settle thedisputes by intervention of the court or through mediation, and when thelast attempt was made, etc. The period of separation should besufficiently long, and anything above six years or more will be relevantfactor. But these facts have to be evaluated keeping in view the economicand social status of the parties, including their educational qualifications,whether the parties have any children, their age, educational qualification,and whether the other spouse and children are dependent, in which eventhow and in what manner the party seeking divorce intends to take careand provide for the spouse or the children. Question of custody andwelfare of minor children, provision for fair and adequate alimony forthe wife, and economic rights of the children and other pending matters,if any, are relevant considerations. We would not like to codify the factorsso as to curtail exercise of jurisdiction under Article 142(1) of the

AConstitution of India, which is situation specific. Some of the factorsmentioned can be taken as illustrative, and worthy of consideration.

34. Towards the end, for the sake of completeness and to avoidconfusion and debate on the ratio we have expounded, we would like toexamine few decisions, in which this Court had refused to exerciseBjurisdiction under Article 142(1) of the Constitution of India or dispensewith the period of six months for moving the second motion. In ManishGoel (supra), division bench of this Court has held that power andjurisdiction under Article 136 of the Constitution of India, though couchedin the widest possible terms and plenary in nature, is discretionary. Thus,extraordinary care and caution must be exercised, and unless it is shownCthat exceptional and special circumstances exist to demonstrate thatsubstantial and grave injustice has been rendered, this Court should notreview/interfere with the decision appealed against. Article 136 of theConstitution of India should not be used to short-circuit the legal procedureprescribed. The power under Article 142(1) of the Constitution of India

Dwas summarised to observe that generally, this Court would not pass anorder in contravention or ignorance of statutory provision, or merelyon sympathetic grounds. However, the bench did not specifically examinethe question of whether the period prescribed under Section 13-B of theHindu Marriage Act is mandatory or directory in nature, and if directory,whether the same could be dispensed with by the High Court in exerciseEof its writ/appellate jurisdiction.[53] Further, the two judges’ bench did notexercise extraordinary jurisdiction under Article 142(1) of the Constitutionof India, observing that it was not case where there was any obstructionto the stream of justice, or there was injustice to the parties requiring thecourt to grant equitable relief. The contingencies to exercise of powerFunder Article 142(1) of the Constitution of India were not established.35. In Hitesh Bhatnagar v. Deepa Bhatnagar[54], one of theparties had withdrawn the consent before the stage of second motion,and therefore, the decree of divorce could not be passed. The benchrelied on the earlier judgment in Sureshta Devi v. Om Prakash[55], whereinGit has been held that in case of divorce by mutual consent, party maywithdraw the consent at any stage before the decree of divorce is passed.This ratio has been approved by three judges’ bench in Smruti Pahariya

53 See – Manish Goel (supra), paragraph 23.54 (2011) 5 SCC 234.H55 (1991) 2 SCC 25.

v. Sanjay Pahariya[56]. Consequently, following these judgments, HiteshBhatnagar (supra) opines that decree of divorce cannot be passed asthe second motion, which is requirement in law, was never moved byboth the parties. It is also observed that non-withdrawal of consent within18 months, the period stipulated in sub-section (2) to Section 13-B of theHindu Marriage Act, has no bearing as this period of 18 months isspecified only to ensure quick disposal of cases of divorce by mutualconsent. Sub-section (2) to Section 13-B of the Hindu Marriage Actdoes not specify the time period for withdrawal of consent. Plea to grantdivorce on the ground of irretrievable breakdown by invoking Article142 of the Constitution of India was not entertained, albeit observingthat this can be granted only in situations where the Court is convincedbeyond any doubt that there is absolutely no chance in the marriagesurviving and that it had broken beyond repair. Nevertheless, the benchdeemed it appropriate to state that they have not finally expressed anyopinion on the issue of the power under Article 142 of the Constitution ofIndia vis-à-vis dissolution of marriage.

36. In Shyam Sundar Kohli v. Sushma Kohli alias Satya Devi[57],the bench had refused to grant divorce on the ground of irretrievablebreakdown of marriage, but also observed that only in extremecircumstances would this Court dissolve the marriage on this ground.

37. In Darshan Gupta v. Radhika Gupta[58], the ground of crueltyhad not been established. Thereafter, the two judges’ bench, onexamination of Section 13(1) of the Hindu Marriage Act, observed thatit is founded on ‘matrimonial offence theory’ or ‘fault theory’, and as asequitur, the person who is at fault and commits cruelty cannot raise theaccusing finger on the other spouse on the basis of those very allegationsand seek dissolution of marriage thereon. This case was peculiar as theperson seeking divorce, as per the findings, was clearly at fault and to beblamed. The plea of irretrievable breakdown of marriage was raisedand rejected as not postulated in the statutory provisions. Reliance placedon Gurbux Singh v. Harminder Kaur[59], to urge that divorce should begranted in exercise of power under Article 142 of the Constitution ofIndia, was not accepted as the bench could not be persuaded on the

56 (2009) 13 SCC 338.

57 (2004) 7 SCC 747.

58 (2013) 9 SCC 1.

59 (2010) 14 SCC 301.

Aground and facts of the case to justify exercise of the power. The benchobserved that the concept of justice varies depending upon the interestof the party. The Hon’ble judges held that “it is questionable as towhether the relief sought…on the ground of irretrievable breakdownof marriage is available…”. Thus, in this case, the judgment did notgive any firm opinion and finding on the questions that we have answeredBwith reference to the jurisdiction and power of this Court under Article142(1) of the Constitution of India.38. In Neelam Kumar v. Dayarani[60], reference was made toSatish Sitole v. Ganga,[61] wherein the marriage was dissolved in exerciseof the power under Article 142 of the Constitution of India on the groundCof its irretrievable breakdown, but the submission was not accepted inNeelam Kumar (supra) on the reason that there was nothing to indicatethat the respondent was, in any way, responsible for the breakdown ofmarriage. It was observed that in Vishnu Dutt Sharma v. ManjuSharma[62], this Court has held that irretrievable breakdown of marriageDis not ground for divorce under the Hindu Marriage Act. However,Vishnu Dutt Sharma (supra) did not determinatively enunciate on thejurisdiction under Article 142(1) of the Constitution of India. The judgmentin Neelam Kumar (supra) acknowledges that in Satish Sitole (supra),this Court did exercise jurisdiction under Article 142(1) of the Constitutionof India to dissolve the marriage, as it was in the interest of the parties.EIn the facts of Neelam Kumar (supra), the bench was not inclined toaccede to the request of granting divorce in exercise of the powerconferred by Article 142(1) of the Constitution of India.

39. The judgment in Savitri Pandey v. Prem Chandra Pandey[63]refers to an earlier decision of this Court in Jorden Diengdeh v. S.S.FChopra[64], in which the two judges’ bench had suggested completereform of the law of marriage and for uniform law applicable to all,irrespective of religion and caste, as well as the need to introduceirretrievable breakdown of marriage as ground for divorce. JordenDiengdeh (supra) observes that no purpose would be served byGcontinuing marriage that has completely and signally broken down, butthe legislature has not thought it proper to provide for the said ground.60 (2010) 13 SCC 298.61 (2008) 7 SCC 734.62 (2009) 6 SCC 379.63 (2002) 2 SCC 73.H64 (1985) 3 SCC 62.

This Court in Savitri Pandey (supra) held that there could be caseswhere on facts, the marriage has become dead on account of contributoryacts of commission and omission by the parties, as in the case of V.Bhagat (supra). At the same time, the bench felt that the sanctity ofmarriage cannot be left at the whims of one of the annoying parties.

40. In view of our findings recorded above, we are of the opinionthat the decisions of this Court in Manish Goel (supra), Neelam Kumar(supra), Darshan Gupta (supra), Hitesh Bhatnagar (supra), SavitriPandey (supra) and others have to be read down in the context of thepower of this Court given by the Constitution of India to do ‘completejustice’ in exercise of the jurisdiction under Article 142(1) of theConstitution of India. In consonance with our findings on the scope andambit of the power under Article 142(1) of the Constitution of India, inthe context of matrimonial disputes arising out of the Hindu MarriageAct, we hold that the power to do ‘complete justice’ is not fettered bythe doctrine of fault and blame, applicable to petitions for divorce underSection 13(1)(i-a) of the Hindu Marriage Act. As held above, this Court’spower to dissolve marriage on settlement by passing decree of divorceby mutual consent, as well as quash and set aside other proceedings,including criminal proceedings, remains and can be exercised.41. Lastly, we must express our opinion on whether party candirectly canvass before this Court the ground of irretrievable breakdownby filing writ petition under Article 32 of the Constitution. In Poonamv. Sumit Tanwar[65], two judges’ bench of this Court has rightly heldthat any such attempt must be spurned and not accepted, as the partiesshould not be permitted to file writ petition under Article 32 of theConstitution of India, or for that matter under Article 226 of theConstitution of India before the High Court, and seek divorce on theground of irretrievable breakdown of marriage. The reason is that theremedy of person aggrieved by the decision of the competent judicialforum is to approach the superior tribunal/forum for redressal of his/hergrievance. The parties should not be permitted to circumvent theprocedure by resorting to the writ jurisdiction under Article 32 or 226 ofthe Constitution of India, as the case may be. Secondly, and moreimportantly, relief under Article 32 of the Constitution of India can besought to enforce the rights conferred by Part III of the Constitution ofIndia, and on the proof of infringement thereof. Judicial orders passed

65 (2010) 4 SCC 460.

ABC

Aby the court in, or in relation to, the proceedings pending before it, arenot amenable to correction under Article 32 of the Constitution of India.[66]Therefore, party cannot file writ petition under Article 32 of theConstitution of India and seek relief of dissolution of marriage directlyfrom this Court. While we accept the said view, we also clarify thatreference in Poonam (supra) to Manish Goel (supra) and theBobservation that it is questionable whether the period of six months formoving the second motion can be waived has not been approved by us.

Conclusion.

42. In view of the aforesaid discussion, we decide this referenceCby answering the questions framed in the following manner:

(i)The scope and ambit of power and jurisdiction of thisCourt under Article 142(1) of the Constitution of India.

This question as to the power and jurisdiction of this Courtunder Article 142(1) of the Constitution of India is answeredDin terms of paragraphs 8 to 13, inter alia, holding that thisCourt can depart from the procedure as well as thesubstantive laws, as long as the decision is exercised basedon considerations of fundamental general and specific publicpolicy. While deciding whether to exercise discretion, thisECourt must consider the substantive provisions as enactedand not ignore the same, albeit this Court acts as problemsolver by balancing out equities between the conflictingclaims. This power is to be exercised in ‘cause or matter’.

(ii)In view of, and depending upon the findings of thisFbench on the first question, whether this Court, whilehearing transfer petition, or in any otherproceedings, can exercise power under Article 142(1)of the Constitution, in view of the settlement betweenthe parties, and grant decree of divorce by mutualconsent dispensing with the period and the procedureGprescribed under Section 13-B of the Hindu MarriageAct, and also quash and dispose of other/connected

66 See – Sahibzada Saiyed Muhammed Amirabbas Abbasi & Others v. State Of MadhyaBharat (Now Madhya Pradesh) & Others, AIR 1960 SC 768; Ujjam Bai v. State of UttarPradesh, AIR 1962 SC 1621; and Naresh Shridhar Mirajkar and Others v. State ofHMaharashtra and Another, AIR 1967 SC 1.

proceedings under the Domestic Violence Act,Section 125 of the Cr.P.C., or criminal prosecutionprimarily under Section 498-A and other provisionsof the I.P.C. If the answer to this question is in theaffirmative, in which cases and under whatcircumstances should this Court exercise jurisdictionunder Article 142 of the Constitution of India is anancillary issue to be decided.

In view of our findings on the first question, this question has to beanswered in the affirmative, inter alia, holding that this Court, in viewof settlement between the parties, has the discretion to dissolve themarriage by passing decree of divorce by mutual consent, withoutbeing bound by the procedural requirement to move the second motion.This power should be exercised with care and caution, keeping in mindthe factors stated in Amardeep Singh (supra) and Amit Kumar (supra).This Court can also, in exercise of power under Article 142(1) of theConstitution of India, quash and set aside other proceedings and orders,including criminal proceedings.

(iii)Whether this Court can grant divorce in exercise ofpower under Article 142(1) of the Constitution of Indiawhen there is complete and irretrievable breakdownof marriage in spite of the other spouses opposingthe prayer?

This question is also answered in the affirmative, inter alia, holdingthat this Court, in exercise of power under Article 142(1) of theConstitution of India, has the discretion to dissolve the marriage on theground of its irretrievable breakdown. This discretionary power is to beexercised to do ‘complete justice’ to the parties, wherein this Court issatisfied that the facts established show that the marriage has completelyfailed and there is no possibility that the parties will cohabit together, andcontinuation of the formal legal relationship is unjustified. The Court, asa court of equity, is required to also balance the circumstances and thebackground in which the party opposing the dissolution is placed.

43. For the foregoing reasons, Transfer Petition (Civil) No. 1118of 2014, Transfer Petition (Criminal) No. 382 of 2014, Transfer Petition(Criminal) No. 468 of 2014, and Transfer Petition (Civil) Nos. 1481-1482 of 2014 are disposed of, as vide order dated 06.05.2015, division

Abench of this Court has already dissolved the marriage between theparties by invoking Article 142(1) of the Constitution of India.

44. Transfer Petition (Criminal) Nos. 96 and 339 of 2014 may belisted before the regular bench in the second week of May, 2023 forappropriate orders and directions.

Ankit Gyan

Reference answered.

(Assisted by : Aarsh Choudhary, LCRA)