J U D G M E N T

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

TRANSFER PETITION (CIVIL) NO. 1118 OF 2014

SHILPA SAILESH ..... PETITIONER

VERSUS

VARUN SREENIVASAN ..... RESPONDENT

W I T H

TRANSFER PETITION (CRIMINAL) NO. 96 OF 2014

TRANSFER PETITION (CRIMINAL) NO. 339 OF 2014

TRANSFER PETITION (CRIMINAL) NO. 382 OF 2014

TRANSFER PETITION (CRIMINAL) NO. 468 OF 2014

A N D

TRANSFER PETITION (CIVIL) NOS. 1481-1482 OF 2014

J U D G M E N T

SANJIV KHANNA, J.

Background.

T.P. (C) No. 1118 of 2014 & Ors. Page 1 of 61

Digitally signed by

Charanjeet Kaur

Date: 2023.05.01

14:05:29 IST

Reason:

Signature Not Verified

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 a bench of two judges had doubted the view expressed in

Anjana Kishore v. Puneet Kishore

and Manish Goel v. Rohini

Goel

that this Court, in exercise of the power under Article 142 of

the Constitution of India, cannot reduce or waive the period of six

months for moving the second motion as stipulated in sub-section

(2) to Section 13-B of the Hindu Marriage Act, 1956

. Noticing that

this Court, some High Courts and even family courts in some

States had been dispensing with or reducing the period of six

months for moving the second motion when there was no

possibility whatsoever of the spouses cohabiting, the following

question was referred to a three judges’ bench for a clear ruling

and future guidance:

“(I) Whether the period prescribed in sub-section

(2) of Section 13-B of the Hindu Marriage Act,

1955 can be waived or reduced by this Court in

exercise of its jurisdiction under Article 142 of the

Constitution?”

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

2 (2010) 4 SCC 393.

3 For Short, ‘Hindu Marriage Act’.

T.P. (C) No. 1118 of 2014 & Ors. Page 2 of 61

However, the question was never decided, since T.P. (C) No. 899

of 2007 was rendered infructuous as the parties, subsequent to

the order of reference, had dissolved their marriage by mutual

consent.

2. In T.P. (C) No. 1118 of 2014

, Shilpa Shailesh v. Varun

Sreenivasan, a bench of two judges, vide the order dated

06.04.2015

, issued notice to the Attorney General for India for

addressing arguments on the following issues:

“1. The scope and extent of power of this court under

Article 142 of the Constitution of India insofar as

dispensing with the period of notice under Section 13-

B of the Hindu Marriage Act, 1955 is concerned.

2. The stand of the Government with regard to

statutory incorporation of irretrievable break-down of

marriage as one of the conditions for grant of divorce.

3. Any other incidental and ancillary issue that may

arise may also be addressed by the learned Attorney

General.”

3. The Attorney General for India, in paragraph 5 of his written

submissions, had suggested two additional questions of law, which

read thus:

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

T.P. (C) No. 1118 of 2014 & Ors. Page 3 of 61

“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 the ground of “irretrievable

break-down of marriage” even in the absence of such

ground being contemplated by the Legislature may

require consideration by the Constitution Bench.

Similarly, the issue as to whether the period prescribed

in sub-section (2) of Section 13-B of the Hindu

Marriage Act, 1955 can be waived or reduced by this

Court in exercise of its jurisdiction under Article 142 of

the Constitution also requires consideration by the

Constitution Bench.”

4. T.P. (C) No. 1118 of 2014

was effectively disposed of vide the

order dated 06.05.2015 dissolving the marriage by grant of divorce

by mutual consent with the two judges’ bench exercising

jurisdiction under Article 142 of the Constitution of India. However,

in view the conflicting ratio of the judgments of this Court on the

applicability of the power and jurisdiction of this Court under Article

142 of the Constitution of India, the two judges’ bench of this Court

deferred the transfer petition to remain pending for statistical

purposes, and formulated the following questions of law to be

decided by a three judges’ bench:

“4. Notwithstanding the above order passed by us, for

the purposes of statistics the present transfer petitions

shall remain pending as we are of the view that an

issue of some importance needs to be addressed by

the Court in view of the huge number of requests for

exercise of power under Article 142 of the Constitution

that has confronted this Court consequent to

settlement arrived at by and between the husband and

the wife to seek divorce by mutual consent.

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.

T.P. (C) No. 1118 of 2014 & Ors. Page 4 of 61

5. The questions are formulated herein below:

1. “What could be the broad parameters for exercise of

powers under Article 142 of the Constitution to

dissolve a marriage between the consenting parties

without referring the parties to the Family Court to wait

for the mandatory period prescribed under Section 13-

B of the Hindu Marriage Act.

2. Whether the exercise of such jurisdiction under

Article 142 should not be made at all or whether such

exercise should be left to be determined in the facts of

every case.”

5. Thereafter, vide the order dated 29.06.2016, another bench of two

judges of this Court, on examining the questions formulated in T.P.

of India, and relying on Pradip Chandra Parija and Others v.

Pramod Chandra Patnaik and Others

, accepted the submission

made by the Attorney General for India to refer the questions

formulated in T.P. (C) No. 1118 of 2014 for consideration of the

Constitution Bench

. It was left to the discretion of the Constitution

Bench to decide whether it would be inclined to consider the two

questions of law indicated by the Attorney General for India.

7 (2002) 1 SCC 1.

8 We are not examining and commenting on the ratio expounded in Pradip Chandra Parija & Others

(supra).

T.P. (C) No. 1118 of 2014 & Ors. Page 5 of 61

6. This Constitution Bench, after hearing the parties, vide the order

dated 20.09.2022, had deemed it appropriate to formulate another

question of law, which reads thus:

“We do believe that another question which would

require consideration would be whether the power

under Article 142 of the Constitution of India is

inhibited in any manner in a scenario where there is an

irretrievable breakdown of marriage in the opinion of

the Court but one of the parties is not consenting to

the terms.”

7. Accordingly, the following substantial questions of law arise for

consideration before us:

(i) The scope and ambit of power and jurisdiction of this Court

under Article 142(1) of the Constitution of India;

(ii) Secondly, in view of, and depending upon the findings of this

bench on the first question, whether this Court, while hearing a

transfer petition, or in any other proceedings, can exercise

power under Article 142(1) of the Constitution of India, in view

of the settlement between the parties, and grant a decree of

divorce by mutual consent dispensing with the period and the

procedure prescribed under Section 13-B of the Hindu

Marriage Act, and also quash and dispose of other/connected

proceedings under the Protection of Women from Domestic

Violence Act, 2005

, Section 125 of the Code of Criminal

9 For short, ‘Domestic Violence Act’.

T.P. (C) No. 1118 of 2014 & Ors. Page 6 of 61

Procedure, 1973

, or criminal prosecution primarily under

Section 498-A and other provisions of the Indian Penal Code,

1860

. If the answer to this question is in the affirmative, in

which cases and under what circumstances should this Court

exercise jurisdiction under Article 142(1) of the Constitution of

India is an ancillary issue to be decided; and

(iii) The third issue, which is of considerable importance, is

whether this Court can grant divorce in exercise of power

under Article 142(1) of the Constitution of India when there is

complete and irretrievable breakdown of marriage in spite of

the other spouse opposing the prayer.

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 Court and orders as to discovery, etc.—

(1) The Supreme Court in the exercise of its

jurisdiction may pass such decree or make such order

as is necessary for doing complete justice in any

cause or matter pending before it, and any decree so

passed or order so made shall be enforceable

throughout the territory of India in such manner as

may be prescribed by or under any law made by

Parliament and, until provision in that behalf is so

made, in such manner as the President may by order

prescribe.”

10 For short, ‘Cr.P.C.’.

11 For short, ‘I.P.C.’.

T.P. (C) No. 1118 of 2014 & Ors. Page 7 of 61

This provision, apparently unique as it does not have any

counterpart in most of the major written constitutions of the

world

, has its origin in and is inspired from the age-old concepts

of justice, equity, and good conscience. Article 142(1) of the

Constitution of India, which gives wide and capacious power to the

Supreme Court to do ‘complete justice’ in any ‘cause or matter’ is

significant, as the judgment delivered by this Court ends the

litigation between the parties. Given the expansive amplitude of

power under Article 142(1) of the Constitution of India, the

exercise of power must be legitimate, and clamours for caution,

mindful of the danger that arises from adopting an individualistic

approach as to the exercise of the Constitutional power.

9. Interpreting Article 142(1) of the Constitution of India, in M. Siddiq

(Dead) Through Legal Representatives (Ram Janmabhumi

Temple Case) v. Mahant Suresh Das and Others

, the

Constitution Bench of this Court has summarised the contours of

the power as:

“1023. …The phrase ‘is necessary for doing complete

justice’ is of a wide amplitude and encompasses a

power of equity which is employed when the strict

application of the law is inadequate to produce a just

outcome. The demands of justice require a close

attention not just to positive law but also to the

12 The Constitutions of Bangladesh and Nepal have provisions similar to Article 142 of the

Constitution of India, suggesting that they have drawn inspiration from Article 142 of the Constitution

of India.

13 (2020) 1 SCC 1.

T.P. (C) No. 1118 of 2014 & Ors. Page 8 of 61

silences of positive law to find within its interstices, a

solution that is equitable and just. The legal enterprise

is premised on the application of generally worded

laws to the specifics of a case before courts. The

complexities of human history and activity inevitably

lead to unique contests “such as in this case, involving

religion, history and the law — which the law, by its

general nature, is inadequate to deal with. Even where

positive law is clear, the deliberately wide amplitude of

the power under Article 142 empowers a court to pass

an order which accords with justice. For justice is the

foundation which brings home the purpose of any legal

enterprise and on which the legitimacy of the rule of

law rests. The equitable power under Article 142 of the

Constitution brings to fore the intersection between the

general and specific. Courts may find themselves in

situations where the silences of the law need to be

infused with meaning or the rigours of its rough edges

need to be softened for law to retain its humane and

compassionate face...”

Words in the above quotation that ‘the equitable power under

Article 142 of the Constitution of India brings to fore the

intersection between the general and specific’ laws, should be

read as making a reference to the classification of equity by

Professor C.K. Allen

in two principle forms: (i) a liberal and

humane interpretation of law in general, so far as that is possible

without actual antagonism to the law itself – called equity in

general; and (ii) a liberal and humane modification of the law in

exceptional cases, not coming within the ambit of the general rule

– called particular equity.

The words ‘cause or matter’ in Article

142(1) of the Constitution of India, which particularise and

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 SCC J-30.

T.P. (C) No. 1118 of 2014 & Ors. Page 9 of 61

empower this Court to do ‘complete justice’ in that ‘cause or

matter’, are relatable to particular equity

. This is the reason that

it has been held that Article 142(1) of the Constitution of India

turns the maxim ‘equity follows the law’ on its head, as this Article

in the Constitution of India gives legal authority to this Court to

give precedence to equity over law. This power, like all powers

under the Constitution of India, must be contained and regulated,

as it has been held that relief based on equity should not

disregard the substantive mandate of law based on underlying

fundamental general and specific issues of public policy. Subject

to this limitation, this Court, while moulding relief, can go to the

extent of relaxing the application of law to the parties or exempting

the parties altogether from the rigours of the law, in view of the

particular facts and circumstances of the case.

In I. C. Golak

Nath and Others v. State of Punjab and Another

, K. Subba

Rao, CJ., while invoking the doctrine of prospective overruling,

held that the power under Article 142(1) of the Constitution of India

is wide and elastic, and enables this Court to formulate legal

doctrines to meet the ends of justice, and the only limitation

thereon is reason, restraint and injustice. Restraint and deference

16 As this Court interprets the law and adjudicates specific cases, in many a case, it exercises and

applies both equity in general and particular equity. Also see – distinction between ‘cause’ and

‘matter’.

17 See – State (Through Central Bureau of Investigation) v. Kalyan Singh (Former Chief Minister of

Uttar Pradesh) and Others, (2017) 7 SCC 444.

18 AIR 1967 SC 1643.

T.P. (C) No. 1118 of 2014 & Ors. Page 10 of 61

are facets of the Rule of Law, and when it comes to the separation

of the role and functions of the legislature, the executive and the

judiciary, the exercise of power by this Court to do ‘complete

justice’, being for a ‘cause or matter’, does not interfere with and

encroach on the legislature’s power and function to legislate.

Clearly, when this Court exercises jurisdiction conferred by Article

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

of India. The power specifically bestowed by the Constitution of

India on the apex court of the country is with a purpose, and

should be considered as integral to the decision in a ‘cause or

matter’. To do ‘complete justice’ is the utmost consideration and

guiding spirit of Article 142(1) of the Constitution of India.

10. In Union Carbide Corporation and Others v. Union of India

and Others

, this Court laid specific emphasis on the expression

‘cause or matter’ to observe that ‘cause’ means any action or

criminal proceedings, and ‘matter’ means any proceedings in the

court and not in a ‘cause’. The words ‘cause or matter’, when used

together, cover almost every kind of proceedings in court, whether

civil or criminal, interlocutory or final, before or after judgment.

Having held so, this Court observed thus:

19 (1991) 4 SCC 584.

T.P. (C) No. 1118 of 2014 & Ors. Page 11 of 61

“83. It is necessary to set at rest certain

misconceptions in the arguments touching the scope

of the powers of this Court under Article 142(1) of the

Constitution. These issues are matters of serious

public importance. The proposition that a provision in

any ordinary law irrespective of the importance of the

public policy on which it is founded, operates to limit

the powers of the apex Court under Article 142(1) is

unsound and erroneous. In both Garg as well

as Antulay cases the point was one of violation of

constitutional provisions and constitutional rights. The

observations as to the effect of inconsistency with

statutory provisions were really unnecessary in those

cases as the decisions in the ultimate analysis turned

on the breach of constitutional rights. We agree with

Shri Nariman that the power of the Court under Article

142 insofar as quashing of criminal proceedings are

concerned is not exhausted by Section 320 or 321 or

482 CrPC or all of them put together. The power under

Article 142 is at an entirely different level and of a

different quality. Prohibitions or limitations or

provisions contained in ordinary laws cannot, ipso

facto, act as prohibitions or limitations on the

constitutional powers under Article 142. Such

prohibitions or limitations in the statutes might embody

and reflect the scheme of a particular law, taking into

account the nature and status of the authority or the

court on which conferment of powers — limited in

some appropriate way — is contemplated. The

limitations may not necessarily reflect or be based on

any fundamental considerations of public policy. Sri

Sorabjee, learned Attorney General, referring to Garg

case, said that limitation on the powers under Article

142 arising from “inconsistency with express statutory

provisions of substantive law” must really mean and

be understood as some express prohibition contained

in any substantive statutory law. He suggested that if

the expression ‘prohibition’ is read in place of

‘provision’ that would perhaps convey the appropriate

idea. But we think that such prohibition should also be

shown to be based on some underlying fundamental

and general issues of public policy and not merely

incidental to a particular statutory scheme or pattern. It

will again be wholly incorrect to say that powers under

Article 142 are subject to such express statutory

prohibitions. That would convey the idea that statutory

provisions override a constitutional provision. Perhaps,

T.P. (C) No. 1118 of 2014 & Ors. Page 12 of 61

the proper way of expressing the idea is that in

exercising powers under Article 142 and in assessing

the needs of “complete justice” of a cause or matter,

the apex Court will take note of the express

prohibitions in any substantive statutory provision

based on some fundamental principles of public policy

and regulate the exercise of its power and discretion

accordingly. The proposition does not relate to the

powers of the Court under Article 142, but only to what

is or is not ‘complete justice’ of a cause or matter and

in the ultimate analysis of the propriety of the exercise

of the power. No question of lack of jurisdiction or of

nullity can arise.”

11. Whether this ratio is in conflict with the earlier decisions

of this

Court, including Prem Chand Garg and Another v. The Excise

Commissioner, U.P. and Others

, wherein five judges of the

Constitution Bench had held that this power under Article 142(1) of

the Constitution of India cannot be employed to make an order

plainly inconsistent with the express statutory provision or

substantive law, much less inconsistent with any Constitutional

provisions, was examined by another five judges’ bench of this

Court in Supreme Court Bar Association v. Union of India and

Another

, to observe that there was no conflict of ratios as

elucidated in Union Carbide Corporation (supra) and other

20 A.R. Antulay v. R.S. Nayak and Another, (1988) 2 SCC 602; Delhi Judicial Service Association,

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. In Mohammed Anis , this Court, while

elucidating and unfolding the aspect of public policy and when it would operate to limit the power of

the Supreme Court, observes that given the nature of power conferred by the Constitution of India on

this Court under Article 142 of the Constitution of India, which is of a different quality and level,

prohibitions or limitations on provisions contained in ordinary laws cannot ipso facto act as

prohibitions or limitations on the Constitutional power under Article 142 of the Constitution of India.

The decision observes that mere reference to a larger bench does not prohibit this Court in a given

case from its exercise of powers conferred under Article 142 of the Constitution of India.

21 AIR 1963 SC 996.

22 (1998) 4 SCC 409.

T.P. (C) No. 1118 of 2014 & Ors. Page 13 of 61

cases. It is one thing to state that prohibitions or limitations cannot

come in the way of the exercise of jurisdiction under Article 142(1)

of the Constitution of India to do ‘complete justice’ between the

parties in the pending ‘cause or matter’ arising out of that statute,

but quite a different thing to say that, while exercising jurisdiction

under Article 142(1) of the Constitution of India, this Court can

altogether ignore the substantive provisions of the statute dealing

with the subject and pass orders concerning an issue which can

be settled only through a mechanism prescribed in the statute.

These observations were in the context of the powers conferred

on the State Bar Councils under the Advocates Act, 1961, which,

at the first instance, is empowered to decide whether an advocate

is guilty of professional misconduct depending on the gravity and

nature of his contumacious conduct. This Court, in Supreme

Court Bar Association (supra), has highlighted that the

jurisdiction of the Supreme Court in contempt, and the jurisdiction

of the State Bar Councils under the Advocates Act, 1961 are

separate and distinct, and are exercisable by following separate

and distinct procedures. The power to punish for contempt of court

vests exclusively with the courts, whereas the power to punish an

advocate for professional misconduct has been vested with the

23 There is also distinction between existence of power, and proper exercise of power in a given

case, which aspect we have subsequently examined in paragraph 20.

T.P. (C) No. 1118 of 2014 & Ors. Page 14 of 61

concerned State Bar Council and the Bar Council of India. In this

context, we would like to quote the following passages from

Supreme Court Bar Association (supra):

“47. The plenary powers of this Court under Article 142

of the Constitution are inherent in the Court and are

complementary to those powers which are specifically

conferred on the Court by various statutes though are

not limited by those statutes. These powers also exist

independent of the statutes with a view to do complete

justice between the parties. These powers are of very

wide amplitude and are in the nature of supplementary

powers. This power exists as a separate and

independent basis of jurisdiction apart from the

statutes. It stands upon the foundation and the basis

for its exercise may be put on a different and perhaps

even wider footing, to prevent injustice in the process

of litigation and to do complete justice between the

parties. This plenary jurisdiction is, thus, the residual

source of power which this Court may draw upon as

necessary whenever it is just and equitable to do so

and in particular to ensure the observance of the due

process of law, to do complete justice between the

parties, while administering justice according to law.

There is no doubt that it is an indispensable adjunct to

all other powers and is free from the restraint of

jurisdiction and operates as a valuable weapon in the

hands of the Court to prevent “clogging or obstruction

of the stream of justice”. It, however, needs to be

remembered that the powers conferred on the Court

by Article 142 being curative in nature cannot be

construed as powers which authorise the Court to

ignore the substantive rights of a litigant while dealing

with a cause pending before it. This power cannot be

used to “supplant” substantive law applicable to the

case or cause under consideration of the Court. Article

142, even with the width of its amplitude, cannot be

used to build a new edifice where none existed earlier,

by ignoring express statutory provisions dealing with a

subject and thereby to achieve something indirectly

which cannot be achieved directly. Punishing a

contemner advocate, while dealing with a contempt of

court case by suspending his licence to practice, a

power otherwise statutorily available only to the Bar

Council of India, on the ground that the contemner is

T.P. (C) No. 1118 of 2014 & Ors. Page 15 of 61

also an advocate, is, therefore, not permissible in

exercise of the jurisdiction under Article 142. The

construction of Article 142 must be functionally

informed by the salutary purposes of the article, viz., to

do complete justice between the parties. It cannot be

otherwise. As already noticed in a case of contempt of

court, the contemner and the court cannot be said to

be litigating parties.

48. The Supreme Court in exercise of its jurisdiction

under Article 142 has the power to make such order as

is necessary for doing complete justice “between the

parties in any cause or matter pending before it”. The

very nature of the power must lead the Court to set

limits for itself within which to exercise those powers

and ordinarily it cannot disregard a statutory provision

governing a subject, except perhaps to balance the

equities between the conflicting claims of the litigating

parties by “ironing out the creases” in a cause or

matter before it. Indeed this Court is not a court of

restricted jurisdiction of only dispute-settling. It is well

recognised and established that this Court has always

been a law-maker and its role travels beyond merely

dispute-settling. It is a “problem-solver in the nebulous

areas” but the substantive statutory provisions dealing

with the subject-matter of a given case cannot be

altogether ignored by this Court, while making an

order under Article 142. Indeed, these constitutional

powers cannot, in any way, be controlled by any

statutory provisions but at the same time these powers

are not meant to be exercised when their exercise

may come directly in conflict with what has been

expressly provided for in a statute dealing expressly

with the subject.”

12. We must, at this stage, as noticed in Union Carbide Corporation

(supra), draw a distinction between the Constitutional power

exercisable by this Court under Article 142(1) of the Constitution of

India, and the inherent power of the civil court recognised by

Section 151 of the C.P.C. and the inherent power of the High

Court under Section 482 Cr.P.C., which provisions empower the

T.P. (C) No. 1118 of 2014 & Ors. Page 16 of 61

civil court in civil cases and the High Court in criminal cases to

pass such orders as may be necessary to 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 public

within the four corners of the law, albeit the courts are not

empowered to act contrary to the procedure on the particular

aspect of law provided in the C.P.C. and the Cr.P.C. Where the

C.P.C. and the Cr.P.C. are silent, the civil court or the High Court,

respectively, can pass orders in the interest of the public, for the

simple reason that no legislation is capable of contemplating all

possible circumstances that may arise in future litigation and

consequently provide a procedure for them

. Thus, the C.P.C. and

the Cr.P.C. should not be read as to limit or otherwise affect the

inherent power of the civil court and the High Court, respectively,

to make such order as is necessary for the ‘ends of justice’, or to

prevent abuse of the process of the court.

The Constitutional

power conferred by Article 142(1) of the Constitution of India on

24 For Section 151 C.P.C. see – Jet Ply Wood (P.) Ltd. and Another v. Madhukar Nowlakha and

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. State Represented By Inspector Of Police,

(2006) 7 SCC 296; and Dinesh Dutt Joshi v. State of Rajasthan and Another, (2001) 8 SCC 570.

25 This statement on legislation is equally true, if not truer, for exercise of power by this Court under

Article 142(1) of the Constitution of India.

26 Earlier judgments of different High Courts in Bhim Singh v. Kan Singh, 2003 SCC OnLine Raj 326;

Nagen Kundu v. Emperor, 1934 SCC OnLine Cal 12; and Chhail Das v. State of Haryana, 1974 SCC

OnLine P&H 246, relating to the Cr.P.C., hold that the Cr.P.C. is deemed to be exhaustive when

covered by a provision, but where a case arises which demands exercise of discretion, which is not

within the provisions that the Cr.P.C. specifically provides, it would be reasonable to say that the court

has power to make such order as the ‘ends of justice’ require. Every criminal court, including the

court of a Metropolitan Magistrate, has this power, notwithstanding the specific power conferred

under Section 482 of the Cr.P.C. on the High Court.

T.P. (C) No. 1118 of 2014 & Ors. Page 17 of 61

this Court is not a replication of the inherent power vested with the

civil court under the C.P.C., and the High Court under the Cr.P.C.

13. Given the aforesaid background and judgments of this Court, the

plenary and conscientious power conferred on this Court under

Article 142(1) of the Constitution of India, seemingly unhindered,

is tempered or bounded by restraint, which must be exercised

based on fundamental considerations of general and specific

public policy. Fundamental general conditions of public policy refer

to the fundamental rights, secularism, federalism, and other basic

features of the Constitution of India. Specific public policy should

be understood as some express pre-eminent prohibition in any

substantive law, and not stipulations and requirements to a

particular statutory scheme. It should not contravene a

fundamental and non-derogable principle at the core of the

statute. Even in the strictest sense

, it was never doubted or

27 Some jurists have opined that the judgments on the powers of this Court under Article 142(1) of

the Constitution of India can be divided into three phases. The first phase 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 and in violation of specific statutory provision and is limited to

deviation from the rules of procedure. Further, the direction must not infringe the Fundamental Rights

of the individual, which proposition has never been doubted and holds good in phase two and three.

The second phase has its foundation in the ratio of the judgment of the 11-Judge Constitution Bench

of this Court in I. C. Golak Nath (supra), dealing with the doctrine of prospective overruling, which

held that Articles 32, 141 and 142 are couched in such wide and elastic terms as to enable this Court

to formulate legal doctrines to meet the ends of justice, the only limitation thereon being reason,

restraint and injustice. In Delhi Judicial Service Association (supra), this Court observes that any

prohibition or restriction contained in ordinary laws cannot act as a limitation on the constitutional

power 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 Carbide Corporation (supra), which holds that

this Court, in exercising powers under Article 142 and in assessing the needs of ‘complete justice’ of

a ‘cause’ or ‘matter’, will take note of the express prohibitions in any substantive statutory provision

based on some fundamental principles of public policy and regulate the exercise of its power and

discretion accordingly. The judgment of Supreme Court Bar Association (supra), applies cautious and

T.P. (C) No. 1118 of 2014 & Ors. Page 18 of 61

debated that this Court is empowered under Article 142(1) of the

Constitution of India to do ‘complete justice’ without being bound

by the relevant provisions of procedure, if it is satisfied that the

departure from the said procedure is necessary to do ‘complete

justice’ between the parties.

Difference between procedural and

substantive law in jurisprudential terms is contentious, albeit not

necessary to be examined in depth in the present decision

, as in

terms of the dictum enunciated by this Court in Union Carbide

Corporation (supra) and Supreme Court Bar Association

(supra), exercise of power under Article 142(1) of the Constitution

of India to do ‘complete justice’ in a ‘cause or matter’ is prohibited

only when the exercise is to pass an order which is plainly and

expressly barred by statutory provisions of substantive law based

on fundamental considerations of general or specific public policy.

As explained in Supreme Court Bar Association (supra), the

exercise of power under Article 142(1) of the Constitution of India

being curative in nature, this Court would not ordinarily pass an

balanced approach, to hold that Article 142 being curative in nature and a constitutional power

cannot be controlled by any statutory provision, but this power is not meant to be exercised ignoring

the statutory provisions or directly in conflict with what is expressly provided in the statute. At the

same-time, it observes, that this Court will not ordinarily discard a statutory provision governing the

subject, except perhaps to balance the equities between the conflicting claims of the parties to “iron

out the creases” in a ‘cause or matter’ before it. [See – Rajat Pradhan, Ironing out the 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 Legislation Under Article 142 of the Constitution: A Pragmatic Prompt for

Proper Legislation by Parliament, 54 JILI (2012) 364]. As observed by us, the ratio as expounded in

Union Carbide 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 and 30 infra.

T.P. (C) No. 1118 of 2014 & Ors. Page 19 of 61

order ignoring or disregarding a statutory provision governing the

subject, except to balance the equities between conflicting claims

of the litigating parties by ironing out creases in a ‘cause or matter’

before it. In this sense, this Court is not a forum of restricted

jurisdiction when it decides and settles the dispute in a ‘cause or

matter’. While this Court cannot supplant the substantive law by

building a new edifice where none existed earlier, or by ignoring

express substantive statutory law provisions, it is a problem-solver

in the nebulous areas. As long as ‘complete justice’ required by

the ‘cause or matter’ is achieved without violating fundamental

principles of general or specific public policy, the exercise of the

power and discretion under Article 142(1) is valid and as per the

Constitution of India. This is the reason why the power under

Article 142(1) of the Constitution of India is undefined and

uncatalogued, so as to ensure elasticity to mould relief to suit a

given situation. The fact that the power is conferred only on this

Court is an assurance that it will be used with due restraint and

circumspection.

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

14. Hindu marriage is traditionally considered to be a sacred union; a

devout relationship that lasts till eternity. The Hindu Marriage Act

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

SCC 622.

T.P. (C) No. 1118 of 2014 & Ors. Page 20 of 61

provides the right to approach the court for dissolution of Hindu

marriage by grant of a decree of divorce on the grounds

mentioned in Section 13 thereof. The provisions of the Hindu

Marriage Act have undergone considerable changes over a period

of time. Section 13(1)(i-a) was enacted by the Marriage Laws

(Amendment) Act, 1976

to provide for divorce in cases of cruelty.

Section 13-B of the Hindu Marriage Act was introduced for

providing divorce by mutual consent. Explanation was added to

Section 9 of the Hindu Marriage Act, which relates to restitution of

conjugal rights, stating that where a question of whether there has

been reasonable excuse for withdrawal from society arises, the

burden of proving reasonable excuse shall be on the person who

has so withdrawn from the society. The effect of the said

amendment, as noticed below, partially dilutes the rigours of sub-

section (1)(a) to Section 23 of the Hindu Marriage Act, which

stipulates that the court, while examining whether any ground for

granting relief exists, should be satisfied that the petitioner is not,

in any way, taking advantage of his/her own wrong 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

the provisions of this Act a petition for dissolution of

31 Act 68 of 1976, w.e.f. 27.05.1976.

T.P. (C) No. 1118 of 2014 & Ors. Page 21 of 61

marriage by a decree of divorce may be presented to

the district court by both the parties to a marriage

together, whether such marriage was solemnized

before or after the commencement of the Marriage

Laws (Amendment) Act, 1976 (68 of 1976), on the

ground that they have been living separately for a

period of one year or more, that they have not been

able to live together and that they have mutually

agreed that the marriage should be dissolved.

(2) On the motion of both the parties made not earlier

than six months after the date of the presentation of

the petition referred to in sub-section (1) and not later

than eighteen months after the said date, if the petition

is not withdrawn in the meantime, the court shall, on

being satisfied, after hearing the parties and after

making such inquiry as it thinks fit, that a marriage has

been solemnized and that the averments in the

petition are true, pass a decree of divorce declaring

the marriage to be dissolved with effect from the date

of the decree.”

16. Section 13-B(1) of the Hindu Marriage Act states that a decree of

divorce may be granted on a joint petition by the parties on

fulfilment of the following conditions:

(a) the parties have been living separately for a period of one

year or more before presentation of the petition;

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

dissolved.

Sub-section (2) to Section 13-B of the Hindu Marriage Act

provides that after the first motion is passed, the couple/parties

would have to move to the court with the second motion, if the

T.P. (C) No. 1118 of 2014 & Ors. Page 22 of 61

petition is not withdrawn in the meanwhile, after six months and

not later than eighteen months of the first motion. No action can

be taken by the parties before the lapse of six months since the

first motion. When the second motion is filed, the court is to make

an inquiry, and on satisfaction that the averments made in the

petition are true, a decree of divorce is granted. Clearly, the

legislative intent behind incorporating sub-section (2) to Section

13-B of the Hindu Marriage Act is that the couple/party must have

time to introspect and consider the decision to separate before the

second motion is moved. However, there are cases of exceptional

hardship, where after some years of acrimonious litigation and

prolonged suffering, the parties, with a view to have a fresh start,

jointly pray to the court to dissolve the marriage, and seek waiver

of the need to move the second motion. On account of

irreconcilable differences, allegations and aspersions made

against each other and the family members, and in some cases

multiple litigations including criminal cases, continuation of the

marital relationship is an impossibility. The divorce is inevitable,

and the cooling off period of six 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) to Section 13-B of

the Hindu Marriage Act to safeguard against hurried and hasty

T.P. (C) No. 1118 of 2014 & Ors. Page 23 of 61

decisions are not in issue and question, and the procedural

requirement to move the court with the second motion after a gap

of six months acts as an impediment in the settlement. At times,

payment of alimony and permanent lump-sum maintenance gets

delayed, while anxiety and suspicion remain. Here, the procedure

should give way to a larger public and personal interest of the

parties in ending the litigation(s), and the pain and sorrow

effected, by passing a 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 of the

Hindu Marriage Act, this Court in Amardeep Singh v. Harveen

Kaur

went into the question of whether the cooling off period of

six months is mandatory or discretionary. It was held that the

cooling off period can be waived by the court where the

proceedings have remained pending for long in the courts, these

being cases of exceptional situations. It was held thus:

“14. The learned Amicus Curiae submitted that waiting

period enshrined under Section 13-B(2) of the Act is

directory and can be waived by the court where

proceedings are pending, in exceptional situations.

This view is supported by the judgments of the 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 Madhya Pradesh High Court in

Dineshkumar Shukla v. Neeta. Contrary view has been

taken by the Kerala High Court in M. Krishna Preetha

32 (2017) 8 SCC 746.

T.P. (C) No. 1118 of 2014 & Ors. Page 24 of 61

v. Jayan Moorkkanatt. It was submitted that Section

13-B(1) relates to jurisdiction of the court and the

petition is maintainable only if the parties are living

separately for a period of one year or more and if they

have not been able to live together and have agreed

that the marriage be dissolved. Section 13-B(2) is

procedural. He submitted that the discretion to waive

the period is a guided discretion by consideration of

interest of justice where there is no chance of

reconciliation and parties were already separated for a

longer period or contesting proceedings for a period

longer than the period mentioned in Section 13-B(2).

Thus, the court 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?

(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 takes care of alimony, custody of child or

any other pending issues between the parties?

xx xx xx

19. Applying the above to the present situation, we are

of the view that where the court dealing with a matter

is satisfied that a case is made out to waive the

statutory period under Section 13-B(2), it can do so

after considering the following:

(i) the statutory period of six months specified in

Section 13-B(2), in addition to the statutory period

of one year under Section 13-B(1) of separation of

parties is already over before the first motion itself;

(ii) all efforts for mediation/conciliation including

efforts in terms of Order 32-A Rule 3 CPC/Section

23(2) of the Act/Section 9 of the Family Courts Act

to reunite the parties have failed and there is no

likelihood of success in that direction by any

further efforts;

T.P. (C) No. 1118 of 2014 & Ors. Page 25 of 61

(iii) the parties have genuinely settled their differences

including alimony, custody of child or any other

pending issues between the parties;

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

The waiver application can be filed one week after the

first motion giving reasons for the prayer for waiver. If

the above conditions are satisfied, the waiver of the

waiting period for the second motion will be in the

discretion of the court concerned.”

The time gap is meant to enable the parties to cogitate, analyse

and take a deliberated decision. The object of the cooling off

period is not to stretch the already disintegrated marriage, or to

prolong the agony and misery of the parties when there are no

chances of the marriage working out. Therefore, once every effort

has been made to salvage the marriage and there remains no

possibility of reunion and cohabitation, the court is not powerless

in enabling the parties to avail a better option, which 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 has shattered

beyond repair. The judgment in Amardeep Singh (supra) refers to

several questions that the court would ask before passing an

order one way or the other. However, this judgment proceeds on

the interpretation of Section 13-B(2) of the Hindu Marriage Act,

and does not examine whether this Court can take on record a

settlement agreement and grant divorce by mutual consent under

T.P. (C) No. 1118 of 2014 & Ors. Page 26 of 61

Section 13-B of the Hindu Marriage Act in exercise of the power

under Article 142(1) of the Constitution of India.

18. We must acknowledge that this Court has very often entertained

applications/prayers for divorce by mutual consent under Section

13-B of the Hindu Marriage Act, and passed a decree of divorce

without relegating or asking the parties to move a joint motion

before the trial 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 arises when proceedings are pending in

this Court against an interim or a final order passed in a judicial

proceeding, or on a transfer petition being filed before this Court.

The parties may mutually agree to dissolve the marriage, albeit on

many occasions they enter into settlements, often through

mediation or on being prompted by the Court. In matrimonial

matters, settlement, and not litigation, is the preferable mode of

dispute resolution.

19. Exercise of jurisdiction under Article 142(1) of the Constitution of

India by this Court in such cases is clearly permissible to do

‘complete justice’ to a ‘cause or matter’. We should accept that

this Court can pass an order or decree which a family court, trial

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

T.P. (C) No. 1118 of 2014 & Ors. Page 27 of 61

court or High Court can pass. As per Article 142(1) of the

Constitution of India, a decree passed or an order made by this

Court is executable throughout the territory of India.

Power of

this Court under Articles 136 and 142(1) of the Constitution of

India will certainly embrace and enswathe this power to do

‘complete justice’, even when the main case/proceeding is

pending before the family court, the trial court or another judicial

forum. A question or issue of lack of subject-matter jurisdiction

does not arise. Settlements in matrimonial matters invariably end

multiple legal proceedings, including criminal proceedings in

different courts and at diverse locations. Necessarily, in such

cases, the parties have to move separate applications in multiple

courts, including the jurisdictional High Court, for appropriate relief

and closure, and disposal and/or dismissal of cases. This puts

burden on the courts in the form of listing, paper work, compliance

with formalities, verification etc. Parallelly, parties have to bear the

cost, appear before several forums/courts and the final orders get

delayed causing anxiety and apprehension. In this sense, when

this Court exercises the power under Article 142(1) of the

Constitution of India, it assists and aids the cause of justice.

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

T.P. (C) No. 1118 of 2014 & Ors. Page 28 of 61

20. However, there is a difference between existence of a power, and

exercise of that power in a given case. Existence of power is

generally a matter of law, whereas exercise of power is a mixed

question of law and facts. Even when the power to pass a decree

of divorce by mutual consent 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 power should be exercised to do ‘complete

justice’ in a ‘cause or matter’ is an issue that has to be determined

independent of existence of the power. This discretion has to be

exercised on the basis of the factual matrix in the particular case,

evaluated on objective criteria and factors, without ignoring the

objective of the statutory provisions. In Amit Kumar v. Suman

Beniwal

, this Court has held that reading of sub-sections (1)

and (2) to Section 13-B of the Hindu Marriage Act envisages a

total waiting period/gap of one and a half years from the date of

separation for the grant of decree of divorce by mutual consent.

Once the condition for waiting period/gap of one and a half year

from the date of separation is fulfilled, it can be safely said that the

parties had time to ponder, reflect and take a conscious decision

on whether they should really put the marriage to end for all times

to come. This period of separation prevents impulsive and

heedless dissolution of marriage, allows tempers to cool down,

35 (2021) SCC Online SC 1270.

T.P. (C) No. 1118 of 2014 & Ors. Page 29 of 61

anger to dissipate, and gives the spouses time to forgive and

forget. At the same time, when there is complete separation over a

long period and 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 observed that, in addition to referring to

the six factors/questions in Amardeep Singh (supra), this Court

should ascertain whether the parties have freely, on their own

accord, and without any coercion or pressure arrived at a genuine

settlement which took care of the alimony, if any, maintenance and

custody of children, etc.

21. In our opinion, Section 13-B of the Hindu Marriage Act does not

impose any fetters on the powers of this Court to grant a decree of

divorce by mutual consent on a joint application, when the

substantive conditions of the Section are fulfilled and the Court,

after referring to the factors mentioned above, is convinced and of

the opinion that the decree of divorce should be granted.

22. The legislature and the courts treat matrimonial litigations as a

special, if not a unique, category. Public policy underlying the

legislations dealing with family and matrimonial matters is to

encourage mutual settlement, as is clearly stated in Section 89 of

T.P. (C) No. 1118 of 2014 & Ors. Page 30 of 61

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 matrimonial disputes lead to a

miscellany of cases including criminal cases, at times genuine,

and on other occasions initiated because of indignation, hurt,

anger or even misguided advice to teach a lesson. The multiplicity

of litigations can restrict and block solutions, as a settlement has

to be holistic and comprehensive, given that the objective and

purpose is to enable the parties to cohabit and live together, or if

they decide to part ways, to have a new beginning and settle

down to live peacefully. Therefore, in B.S. Joshi and Others v.

State of Haryana and Another

, this Court, notwithstanding that

Section 320 of the Cr.P.C. does not permit compounding of an

offence under Section 498A of the I.P.C., has held that the High

Court, exercising the power under Section 482 of the Cr.P.C., may

quash prosecutions even in non-compoundable offences when the

ends of justice so require. This view has been affirmed by the

three judges’ bench in Gian Singh v. State of Punjab and

Another

and reiterated by another three judges’ bench in

Jitendra Raghuvanshi and Others v. Babita Raghuvanshi and

36 (2003) 4 SCC 675.

37 (2012) 10 SCC 303.

T.P. (C) No. 1118 of 2014 & Ors. Page 31 of 61

Another

. The reason is that the courts must not encourage

matrimonial litigation, and prolongation of such litigation is

detrimental to both the parties who lose their young age in chasing

multiple litigations. Thus, adopting a hyper-technical view can be

counter-productive as pendency itself causes pain, suffering and

harassment and, consequently, it is the duty of the court to ensure

that matrimonial matters are amicably resolved, thereby bringing

the agony, affliction, and torment to an end. In this regard, the

courts only have to enquire and ensure that the settlement

between the parties is achieved without pressure, force, coercion,

fraud, misrepresentation, or undue influence, and that the consent

is indeed sought by free will and choice, and the autonomy of the

parties is not compromised. The latter two decisions in Gian

Singh (supra) and Jitendra Raghuvanshi and Others (supra)

observe that the inherent power on the High Court under Section

482 of the Cr.P.C. is wide and can be used/wielded to quash

criminal proceedings to secure the ends of justice and prevent

abuse of the process of the court, albeit it has to be exercised

sparingly, carefully, and with caution. This Court, in State of

Madhya Pradesh v. Laxmi Narayan and Others

, has set out

guidelines as to when the High Court may exercise jurisdiction

38 (2013) 4 SCC 58.

39 (2019) 5 SCC 688.

T.P. (C) No. 1118 of 2014 & Ors. Page 32 of 61

under the inherent powers conferred under Section 482 of the

Cr.P.C. for quashing non-compoundable offences in terms of

Section 320 of the Cr.P.C. In view of the above legal position and

discussion, this Court, on the basis of settlement between the

parties, while passing a decree of divorce by mutual consent, can

set aside and quash other proceedings and orders, including

criminal cases and First Information Report(s), provided the

conditions, as specified in the aforementioned judgments, are

satisfied.

Grant of divorce on the ground of irretrievable breakdown of

marriage in exercise of jurisdiction and power under Article

142(1) of the Constitution of India.

23. This brings us to the last question of whether this Court, in

exercise of power under Article 142(1) of the Constitution of India,

can grant a decree of divorce when, upon the prayer of one of the

spouses, it is satisfied that there is complete and irretrievable

breakdown of marriage, notwithstanding the opposition to such

prayer by the other spouse?

24. Section 13(1)(i-a) of the Hindu Marriage Act, enacted by Act No.

68 of 1976 with effect from 25

May 1976, reads thus:

“13 Divorce.- (1) Any marriage solemnized, whether

before or after the commencement of this Act, may, on

a petition presented by either the husband or the wife,

T.P. (C) No. 1118 of 2014 & Ors. Page 33 of 61

be dissolved by a decree of divorce on the ground that

the other party—

xx xx xx

(i-a) has, after the solemnization of the marriage,

treated the petitioner with cruelty; or

xx xx xx"

This provision often has to be read with clause (a) to Section

23(1) of the Hindu Marriage Act, the substantive portion of which

was enacted as a part of the main enactment vide Act No. 25 of

1955, and reads:

“23. Decree in proceedings. — (1) In any proceeding

under this Act, whether defended or not, if the court is

satisfied that—

(a) any of the grounds for granting relief exists and the

petitioner

[except in cases where the relief is sought

by him on the ground specified in sub-clause (a), sub-

clause (b) or sub-clause (c) of clause (ii) of Section 5]

is not in anyway taking advantage of his or her own

wrong or disability for the purpose of such relief, and

xx xx xx”

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

‘fault theory’, an aspect which we shall subsequently examine.

First, we would like to delineate the meaning of the term ‘cruelty’,

which expression has not been defined in the Hindu Marriage Act.

40 The bracketed portion was enacted vide Act No. 68 of 1976 with effect from 27.05.1976.

T.P. (C) No. 1118 of 2014 & Ors. Page 34 of 61

25. In N.G. Dastane v. S. Dastane

, as early as 1975, a three judges’

bench of this Court, after referring to the provisions of the Indian

Evidence Act, 1972, held that the fact is said to be established if it

is proved by a preponderance of probabilities, that is, the court

believes it to exist or considers its existence so probable that a

prudent man ought to, under the circumstances of a particular

case, act upon the supposition that it exists. Often, the belief

regarding the existence of a fact is founded on balance of

probabilities, that is, the court is to weigh the various probabilities

to discern the preponderance in favour of the existence of a

particular fact. Holding that the proceedings under the Hindu

Marriage Act are civil proceedings, and referring to the provisions

of Section 23 of the Hindu Marriage Act, it was held that the word

‘satisfied’ must connote satisfaction on ‘preponderance of

probabilities’ and not ‘beyond a reasonable doubt’. On the

meaning of ‘cruelty’ as a ground for dissolution of marriage,

reference was made to the High Court’s reliance on D. Tolstoy’s

passage in The Law and Practice of Divorce and Matrimonial

Causes. Therein, ‘cruelty’ has been defined as wilful and

unjustified conduct of such character as to cause danger to life,

limb or health, bodily or mentally, or as to give rise to a reasonable

apprehension of such danger. However, this Court felt that D.

41 (1975) 2 SCC 326.

T.P. (C) No. 1118 of 2014 & Ors. Page 35 of 61

Tolstoy’s passage, which cites Horton v. Horton

, is not enough

to show that the spouses find life together impossible even if there

results injury to health. Accordingly, this Court elucidated that if the

danger to health arises merely from the fact that the spouses find

it impossible to live together and one of the parties is indifferent

towards the other, the charge of cruelty may perhaps fail.

However, harm or injury to health, reputation, the working-career

or the like, would be important considerations in determining

whether the conduct of the defending spouse amounts to cruelty.

The petitioner has to show that the respondent has treated them

with cruelty so as to cause reasonable apprehension in their mind

that it will be harmful or injurious to live with the contesting

spouse. In today’s context, two observations, while a court

enquires into the charge of cruelty, are of some significance. First,

the court should not philosophise on the modalities of married life.

Secondly, whether the charge is proved or not cannot be decided

by applying the principle of whether a reasonable man situated

similarly will behave in a similar manner. What may be cruel to

one may not matter to another, and what may not be cruel to an

individual under one set of circumstances may be extreme cruelty

under another set of circumstances. Cruelty is subjective, that is, it

is person, background, and circumstance specific.

42 [1940] P.187.

T.P. (C) No. 1118 of 2014 & Ors. Page 36 of 61

26. V. Bhagat v. D. Bhagat

, which was pronounced in 1993, 18

years after the decision in N.G. Dastane (supra), gives a life-like

expansion to the term ‘cruelty’. This case was between a husband

who was practicing as an Advocate, aged about 55 years, and the

wife, who was the Vice President in a public sector undertaking,

aged about 50 years, having two adult children – a doctor by

profession and an MBA degree holder working abroad,

respectively. Allegations of an adulterous course of life, lack of

mental equilibrium and pathologically suspicious character were

made against each other. This Court noticed that the divorce

petition had remained pending for more than eight years, and in

spite of the directions given by this Court, not much progress had

been made. It was highlighted that cruelty contemplated under

Section 13(1)(i-a) of the Hindu Marriage Act is both mental and

physical, albeit a comprehensive definition of what constitutes

cruelty would be most difficult. Much depends upon the knowledge

and intention of the defending spouse, the nature of their conduct,

the character and physical or mental weakness of the spouses,

etc. The sum total of the reprehensible conduct or departure from

normal standards of conjugal kindness that causes injury to

health, or an apprehension of it, constitutes cruelty. But these

43 (1994) 1 SCC 337.

T.P. (C) No. 1118 of 2014 & Ors. Page 37 of 61

factors must take into account the temperament and all other

specific circumstances in order to decide that the conduct

complained of is such that a petitioner should not be called to

endure it. It was further elaborated that cruelty, mental or physical,

may be both intentional or unintentional. Matrimonial obligations

and responsibilities vary in degrees. They differ in each household

and to each person, and the cruelty alleged depends upon the

nature of life the parties are accustomed to, or their social and

economic conditions. They may also depend upon the culture and

human values to which the spouses assign significance. There

may be instances of cruelty by unintentional but inexcusable

conduct of the other spouse. Thus, there is a distinction between

intention to commit cruelty and the actual act of cruelty, as

absence of intention may not, in a given case, make any

difference if the act complained of is otherwise regarded as cruel.

Deliberate and wilful intention, therefore, may not matter.

Paragraph 16 of the judgment in V. Bhagat (supra) reads as

under:

“16. Mental cruelty in Section 13(1)(i-a) can broadly be

defined as that conduct which inflicts upon the other

party such mental pain and suffering as would make it

not possible for that party to live with the other. In

other words, mental cruelty must be of such a nature

that the parties cannot reasonably be expected to live

together. The situation must be such that the wronged

party cannot reasonably be asked to put up with such

T.P. (C) No. 1118 of 2014 & Ors. Page 38 of 61

conduct and continue to live with the other party. It is

not necessary to prove that the mental cruelty is such

as to cause injury to the health of the petitioner. While

arriving at such conclusion, regard must be had to the

social status, educational level of the parties, the

society they move in, the possibility or otherwise of the

parties ever living together in case they are already

living apart and all other relevant facts and

circumstances which it is neither possible nor

desirable to set out exhaustively. What is cruelty in one

case may not amount to cruelty in another case. It is a

matter to be determined in each case having regard to

the facts and circumstances of that case. If it is a case

of accusations and allegations, regard must also be

had to the context in which they were made.”

The Division Bench of this Court in V. Bhagat (supra) has also

observed that while irretrievable breakdown of marriage is not a

ground for divorce, specific circumstances may have to be borne

in mind while ascertaining the type of cruelty contemplated by

Section 13(1)(i-a) of the Hindu Marriage Act. These observations,

with which we agree, give a different connotation to the ‘fault

theory’, as to dilute the strict legal understanding of the term

‘cruelty’ for the purpose of Section 13(1)(i-a) of the Hindu Marriage

Act. This interpretation is situation, case and person specific.

27. In Ashok Hurra v. Rupa Bipin Zaveri

, decided in 1997, this

Court was confronted with a situation where the marriage had

fallen apart and the couple had separated in 1983. They did not

have any specific issue, but difference of opinion had cropped up

44 (1997) 4 SCC 226.

T.P. (C) No. 1118 of 2014 & Ors. Page 39 of 61

between the parties. Further, even after residing separately for

thirteen years, the parties were not agreeable to a divorce by

mutual consent. This was in spite of the fact that the husband had

remarried and had a child. This Court was of the view that

considering the cumulative effect of various factors and the

marriage being dead, no useful purpose, both emotionally and

practically, would be served in postponing the inevitability and

prolonging the agony of the parties or their marriage and,

therefore, the curtain should be rung down. This Court, therefore,

exercised the power under Article 142(1) of the Constitution of

India to grant a decree of divorce, though the conduct of the

husband, it was observed, was blameworthy as he had remarried

and conceived a child during the pendency of the proceedings.

This decree of divorce by mutual consent was made conditional

on payment of Rs.10,00,000/- by the husband to the wife. Only on

payment or deposit of the amount in the Court, all proceedings,

including those under Section 494 of the I.P.C., were to stand

terminated.

28. In Naveen Kohli v. Neelu Kohli

, a three judges’ bench of this

Court referred to the opinion of Lord Denning, L.J. in Kaslefsky v.

Kaslefsky

that if the door of cruelty were opened too wide, the

45 (2006) 4 SCC 558.

46 (1950) 2 All ER 398.

T.P. (C) No. 1118 of 2014 & Ors. Page 40 of 61

courts would be granting divorce for incompatibility of

temperament, but this temptation must be resisted, lest the

institution of marriage is imperilled. At the same time, the bench

felt that the concept of legal cruelty has changed according to the

advancement of social concepts and standards of living.

Continuous ill-treatment, cessation of marital intercourse, studied

neglect, indifference on the part of the spouse and allegation of

unchastity are all factors that lead to mental or legal cruelty. While

doing so, this Court affirmed that a set of facts stigmatized as

cruelty in one case may not be so in another, as cruelty largely

depends on the kind of lifestyle the parties are accustomed to or

their social and economic conditions. Similarly, intention, it was

observed, was immaterial as there can be cruelty even by

unintentional conduct. Moreover, mental cruelty is difficult to

establish by direct evidence and is to be deciphered by attending

to the facts and circumstances in which the two partners in

matrimony had been living. On the question of irretrievable

breakdown of marriage, which is not a ground for divorce under

the Hindu Marriage Act, reference was made to the fault theory,

which is hinged on an accusatorial principle of divorce. Excessive

reliance on fault as a ground for divorce, the judges’ opined,

encourages matrimonial offences, increases bitterness and

T.P. (C) No. 1118 of 2014 & Ors. Page 41 of 61

widens the ongoing rift between the parties. Once serious

endeavours for reconciliation have been made, but it is found that

the separation is inevitable and the damage is irreparable, divorce

should not be withheld. An unworkable marriage, which has

ceased to be effective, is futile and bound to be a source of

greater misery for the parties. The law of divorce built

predominantly on assigning fault fails to serve broken marriages.

Under the fault theory, guilt has to be proven, and therefore, the

courts have to be presented with concrete instances of adverse

human behaviour, thereby maligning the institution of marriage.

Public interest demands 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 compelled to resume

life with a consort, and as such, nothing is gained by keeping the

parties tied forever to a marriage which has, in fact, ceased to

exist. In Naveen Kohli (supra), the parties had been living

separately for more than a decade, and civil and criminal

proceedings had been initiated. Therefore, the Court held that the

marriage should be dissolved, as wisdom lies in accepting the

pragmatic reality of life. The Court should take a decision which

would ultimately be conducive to the interest of both the parties.

T.P. (C) No. 1118 of 2014 & Ors. Page 42 of 61

The Court also directed the payment of Rs.25,00,000/- towards

permanent maintenance to the wife.

29. In 2018, the Supreme Court of the United Kingdom, in Owens v.

Owens

, had the occasion to analyse and evaluate the fault

theory as a ground for divorce, which requires one spouse to

make allegations on the conduct of the other. The judgment notes

that the courts invariably face a daunting task in finding the truth of

why the marriage has collapsed. Apportioning blame is an

inherently difficult task, given the fact that the court has to find

faults in the conduct of the spouses, expecting them to have

neither heroic virtues nor selfless abnegation. As subjectivity is

involved, the courts find it difficult to evaluate the gravity or

otherwise of the conduct complained of and find the truth. Lord

Wilson, with whom Lord Hodge and Lady Black agreed, had

referred to the three-fold test to interpret Section 1(2)(b) of the

Matrimonial Causes Act 1973 (of England and Wales) to establish

whether the marriage had been irretrievably broken down in such

a way that the petitioner cannot reasonably be expected to live

with the respondent; (i) by reference to the allegations of

behaviour in the petition, to determine what the respondent did or

did not do; (ii) to assess the effect which the behaviour had upon

47 (2018) UKSC 41.

T.P. (C) No. 1118 of 2014 & Ors. Page 43 of 61

the particular petitioner in the light of the latter’s personality and

disposition and of all circumstances in which it occurred; and (iii)

to make an evaluation whether as a result of the respondent’s

behaviour and in the light of its effect on the petitioner, an

expectation that the petitioner should continue to live with the

respondent would be unreasonable

. Lady Hale, in her judgment,

observed that searching and assigning blame is not vital, as the

ground of divorce is based on conduct, and not fault or fact finding

to ascertain the party to be blamed. On the other hand, cumulative

effect of a great number of small incidents indicative of

authoritarian, demeaning and humiliating conduct over a period of

time would constitute a good ground for divorce. Such conduct

can destroy the trust and confidence required to sustain a

marriage. Further, the effect of the spouse’s behaviour, rather than

the behaviour 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), which

applies the then law in England and Wales, not as a precedent,

but to highlight that even two perfectly gentle and pleasant

individuals having incompatible and clashing personalities can

have a miserable and morose married life. In such cases, fault

48 These tests, with suitable modification, can well be applied in cases under Section 13(1)(i-a) of

the Hindu Marriage Act.

T.P. (C) No. 1118 of 2014 & Ors. Page 44 of 61

theory in the pure form requiring apportionment of guilt and blame,

is a difficult, if not an impossible task, whereas in practical reality

the situation is appalling and unnerving. The marriage is

irretrievably broken down and dead. We would not read the

provisions of the Hindu Marriage Act, their underlying intent, and

any fundamental specific issue of public policy, as barring this

Court from dissolving a broken and shattered marriage in exercise

of the Constitutional power under Article 142(1) of the Constitution

of India. If at all, the underlying fundamental issues of public

policy, as explained in the judgments of V. Bhagat (supra), Ashok

Hurra (supra), and Naveen Kohli (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 formal divorce, to a dead

marriage, otherwise the litigation(s), resultant sufferance, misery

and torment shall continue. Therefore, apportioning blame and

greater fault may not be the rule to resolve and adjudicate the

dispute in rare and exceptional matrimonial cases, as the rules of

evidence under the Evidence Act are rules of procedure. When

the life-like situation is known indubitably, the essence and

objective behind section 13(1)(i-a) of the Hindu Marriage Act that

no spouse should be subjected to mental cruelty and live in misery

and pain is established. These rules of procedure must give way

T.P. (C) No. 1118 of 2014 & Ors. Page 45 of 61

to ‘complete justice’ in a ‘cause or matter’. Fault theory can be

diluted by this Court to do ‘complete justice’ in a particular case,

without breaching the self-imposed restraint applicable when this

Court exercises power under Article 142(1) of the Constitution of

India, as elucidated in the judgments referred to above.

31. At this juncture, we would refer to two judgments authored by one

of the members of this bench (Sanjay Kishan Kaul, J.) in Munish

Kakkar v. Nidhi Kakkar

and Sivasankaran v. Santhimeenal

In Munish Kakkar (supra), the parties had been engaged in

multifarious litigations, including divorce proceedings, for almost

two decades. Yet, they opposed divorce by mutual consent. The

respondent - wife was based in Canada, to where she had shifted,

and was statedly taking medication for depression. The appellant -

husband complained of loneliness 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 Article 142(1) of the

Constitution of India, recognising the futility of a completely failed

49 Explanation to Section 9 of the Hindu Marriage Act, which reads, “Where a question arises

whether there has been reasonable excuse for withdrawal from the society, the burden of proving

reasonable excuse shall be on the person who has withdrawn from the society”, partially mitigates

the rigors to Section 23(1)(a) of the Hindu Marriage Act and, consequently, the fault theory.

50 (2020) 14 SCC 657.

51 2021 SCC OnLine SC 702.

T.P. (C) No. 1118 of 2014 & Ors. Page 46 of 61

and broken down marriage. While observing that there was no

consent of the respondent - wife for grant of divorce, the Court felt

that there 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 was reluctant to let the appellant -

husband live his life by getting a decree of divorce. In view of the

aforesaid position, this Court exercised the power under Article

142(1) of the Constitution of India to do ‘complete justice’ between

the parties. It was also directed that the appellant - husband would

continue to pay the specified amount per month to the respondent

- wife, which amount could be enhanced or reduced by taking

recourse to appropriate proceedings.

32. In Sivasankaran (supra), the marriage had taken place in

February 2002, and after about a year, divorce proceedings were

initiated and the decree of divorce was passed in 2008 under

Section 13(1)(i-a) of the Hindu Marriage Act. The appellant -

husband had remarried within six days of the passing of the

decree of divorce. The respondent - wife filed an appeal and the

dispute had remained pending till it reached this Court. Attempts

to resolve the dispute through mediation and settlement between

the parties bore no fruit. The respondent - wife was resistant to

T.P. (C) No. 1118 of 2014 & Ors. Page 47 of 61

accept the decree of divorce, even though she was aware that the

marriage was but only on paper. Observations on the difficulty

faced by women in the form of social acceptance after a decree of

divorce, and also the need to guarantee financial and economic

security were elucidated. However, this Court, relying on the

earlier decisions in Munish Kakkar (supra) and R. Srinivas

Kumar v. R. Shametha

, observed that there was no necessity of

consent by both the parties for exercise of powers under Article

142(1) of the Constitution of India to dissolve the marriage on the

ground of irretrievable breakdown of marriage, albeit the interest

of the wife is also required to be protected financially so that she

may not have to suffer financially in future and she may not have

to depend upon others. Accordingly, this Court passed a decree of

divorce by exercising the jurisdiction under Article 142(1) of the

Constitution of India.

33. Having said so, we wish to clearly state that grant of divorce on

the ground of irretrievable breakdown of marriage by this Court is

not a matter of right, but a discretion which is to be exercised with

great care and caution, keeping in mind several factors ensuring

that ‘complete justice’ is done to both parties. It is obvious that this

Court should be fully convinced and satisfied that the marriage is

52 (2019) 9 SCC 409.

T.P. (C) No. 1118 of 2014 & Ors. Page 48 of 61

totally unworkable, emotionally dead and beyond salvation and,

therefore, dissolution of marriage is the right solution and the only

way forward. That the marriage has irretrievably broken down is to

be factually determined and firmly established. For this, several

factors are to be considered such as the period of time the parties

had cohabited after marriage; when the parties had last cohabited;

the nature of allegations made by the parties against each other

and their family members; the orders passed in the legal

proceedings from time to time, cumulative impact on the personal

relationship; whether, and how many attempts were made to settle

the disputes by intervention of the court or through mediation, and

when the last attempt was made, etc. The period of separation

should be sufficiently long, and anything above six years or more

will be a relevant factor. But these facts have to be evaluated

keeping in view the economic and 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 event how and

in what manner the party seeking divorce intends to take care and

provide for the spouse or the children. Question of custody and

welfare of minor children, provision for fair and adequate alimony

for the wife, and economic rights of the children and other pending

T.P. (C) No. 1118 of 2014 & Ors. Page 49 of 61

matters, if any, are relevant considerations. We would not like to

codify the factors so as to curtail exercise of jurisdiction under

Article 142(1) of the Constitution of India, which is situation

specific. Some of the factors mentioned can be taken as

illustrative, and worthy of consideration.

34. Towards the end, for the sake of completeness and to avoid

confusion and debate on the ratio we have expounded, we would

like to examine a few decisions, in which this Court had refused to

exercise jurisdiction under Article 142(1) of the Constitution of

India or dispense with the period of six months for moving the

second motion. In Manish Goel (supra), a division bench of this

Court has held that power and jurisdiction under Article 136 of the

Constitution of India, though couched in the widest possible terms

and plenary in nature, is discretionary. Thus, extraordinary care

and caution must be exercised, and unless it is shown that

exceptional and special circumstances exist to demonstrate that

substantial and grave injustice has been rendered, this Court

should not review/interfere with the decision appealed against.

Article 136 of the Constitution of India should not be used to short-

circuit the legal procedure prescribed. The power under Article

142(1) of the Constitution of India was summarised to observe

T.P. (C) No. 1118 of 2014 & Ors. Page 50 of 61

that generally, this Court would not pass an order in contravention

or ignorance of a statutory provision, or merely on sympathetic

grounds. However, the bench did not specifically examine the

question of whether the period prescribed under Section 13-B of

the Hindu Marriage Act is mandatory or directory in nature, and if

directory, whether the same could be dispensed with by the High

Court in exercise of its writ/appellate jurisdiction.

Further, the two

judges’ bench did not exercise extraordinary jurisdiction under

Article 142(1) of the Constitution of India, observing that it was not

a case where there was any obstruction to the stream of justice, or

there was injustice to the parties requiring the court to grant

equitable relief. The contingencies to exercise of power under

Article 142(1) of the Constitution of India were not established.

35. In Hitesh Bhatnagar v. Deepa Bhatnagar

, one of the parties

had withdrawn the consent before the stage of second motion,

and therefore, the decree of divorce could not be passed. The

bench relied on the earlier judgment in Sureshta Devi v. Om

Prakash

, wherein it has been held that in a case of divorce by

mutual consent, a party may withdraw the consent at any stage

See – Manish Goel (supra), paragraph 23.

54 (2011) 5 SCC 234.

55 (1991) 2 SCC 25.

T.P. (C) No. 1118 of 2014 & Ors. Page 51 of 61

before the decree of divorce is passed. This ratio has been

approved by a three judges’ bench in Smruti Pahariya v. Sanjay

Pahariya

. Consequently, following these judgments, Hitesh

Bhatnagar (supra) opines that a decree of divorce cannot be

passed as the second motion, which is a requirement in law, was

never moved by both the parties. It is also observed that non-

withdrawal of consent within 18 months, the period stipulated in

sub-section (2) to Section 13-B of the Hindu Marriage Act, has no

bearing as this period of 18 months is specified only to ensure

quick disposal of cases of divorce by mutual consent. Sub-section

(2) to Section 13-B of the Hindu Marriage Act does not specify the

time period for withdrawal of consent. Plea to grant divorce on the

ground of irretrievable breakdown by invoking Article 142 of the

Constitution of India was not entertained, albeit observing that this

can be granted only in situations where the Court is convinced

beyond any doubt that there is absolutely no chance in the

marriage surviving and that it had broken beyond repair.

Nevertheless, the bench deemed it appropriate to state that they

have not finally expressed any opinion on the issue of the power

under Article 142 of the Constitution of India vis-à-vis dissolution

of marriage.

56 (2009) 13 SCC 338.

T.P. (C) No. 1118 of 2014 & Ors. Page 52 of 61

36. In Shyam Sundar Kohli v. Sushma Kohli alias Satya Devi

, the

bench had refused to grant divorce on the ground of irretrievable

breakdown of marriage, but also observed that only in extreme

circumstances would this Court dissolve the marriage on this

ground.

37. In Darshan Gupta v. Radhika Gupta

, the ground of cruelty had

not been established. Thereafter, the two judges’ bench, on

examination of Section 13(1) of the Hindu Marriage Act, observed

that it is founded on ‘matrimonial offence theory’ or ‘fault theory’,

and as a sequitur, the person who is at fault and commits cruelty

cannot raise the accusing finger on the other spouse on the basis

of those very allegations and seek dissolution of marriage thereon.

This case was peculiar as the person seeking divorce, as per the

findings, was clearly at fault and to be blamed. The plea of

irretrievable breakdown of marriage was raised and rejected as

not postulated in the statutory provisions. Reliance placed on

Gurbux Singh v. Harminder Kaur

, to urge that divorce should

be granted in exercise of power under Article 142 of the

Constitution of India, was not accepted as the bench could not be

57 (2004) 7 SCC 747.

58 (2013) 9 SCC 1.

59 (2010) 14 SCC 301.

T.P. (C) No. 1118 of 2014 & Ors. Page 53 of 61

persuaded on the ground and facts of the case to justify exercise

of the power. The bench observed that the concept of justice

varies depending upon the interest of the party. The Hon’ble

judges held that “it is questionable as to whether the relief

sought…on the ground of irretrievable breakdown of marriage is

available…”. Thus, in this case, the judgment did not give any firm

opinion and finding on the questions that we have answered with

reference to the jurisdiction and power of this Court under Article

142(1) of the Constitution of India.

38. In Neelam Kumar v. Dayarani

, reference was made to Satish

Sitole v. Ganga,

wherein the marriage was dissolved in exercise

of the power under Article 142 of the Constitution of India on the

ground of its irretrievable breakdown, but the submission was not

accepted in Neelam Kumar (supra) on the reason that there was

nothing to indicate that the respondent was, in any way,

responsible for the breakdown of marriage. It was observed that in

Vishnu Dutt Sharma v. Manju Sharma

, this Court has held that

irretrievable breakdown of marriage is not a ground for divorce

under the Hindu Marriage Act. However, Vishnu Dutt Sharma

60 (2010) 13 SCC 298.

61 (2008) 7 SCC 734.

62 (2009) 6 SCC 379.

T.P. (C) No. 1118 of 2014 & Ors. Page 54 of 61

(supra) did not determinatively enunciate on the jurisdiction under

Article 142(1) of the Constitution of India. The judgment in

Neelam Kumar (supra) acknowledges that in Satish Sitole

(supra), this Court did exercise jurisdiction under Article 142(1) of

the Constitution of India to dissolve the marriage, as it was in the

interest of the parties. In the facts of Neelam Kumar (supra), the

bench was not inclined to accede to the request of granting

divorce in exercise of the power conferred by Article 142(1) of the

Constitution of India.

39. The judgment in Savitri Pandey v. Prem Chandra Pandey

refers to an earlier decision of this Court in Jorden Diengdeh v.

S.S. Chopra

, in which the two judges’ bench had suggested a

complete reform of the law of marriage and for a uniform law

applicable to all, irrespective of religion and caste, as well as the

need to introduce irretrievable breakdown of marriage as a ground

for divorce. Jorden Diengdeh (supra) observes that no purpose

would be served by continuing a marriage that has completely and

signally broken down, but the legislature has not thought it proper

to provide for the said ground. This Court in Savitri Pandey

(supra) held that there could be cases where on facts, the

63 (2002) 2 SCC 73.

64 (1985) 3 SCC 62.

T.P. (C) No. 1118 of 2014 & Ors. Page 55 of 61

marriage has become dead on account of contributory acts 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

of marriage cannot be left at the whims of one of the annoying

parties.

40. In view of our findings recorded above, we are of the opinion that

the decisions of this Court in Manish Goel (supra), Neelam

Kumar (supra), Darshan Gupta (supra), Hitesh Bhatnagar

(supra), Savitri Pandey (supra) and others have to be read down

in the context of the power of this Court given by the Constitution

of India to do ‘complete justice’ in exercise of the jurisdiction under

Article 142(1) of the Constitution of India. In consonance with our

findings on the scope and ambit of the power under Article 142(1)

of the Constitution of India, in the context of matrimonial disputes

arising out of the Hindu Marriage Act, we hold that the power to do

‘complete justice’ is not fettered by the doctrine of fault and blame,

applicable to petitions for divorce under Section 13(1)(i-a) of the

Hindu Marriage Act. As held above, this Court’s power to dissolve

marriage on settlement by passing a decree of divorce by mutual

consent, as well as quash and set aside other proceedings,

including criminal proceedings, remains and can be exercised.

T.P. (C) No. 1118 of 2014 & Ors. Page 56 of 61

41. Lastly, we must express our opinion on whether a party can

directly canvass before this Court the ground of irretrievable

breakdown by filing a writ petition under Article 32 of the

Constitution. In Poonam v. Sumit Tanwar

, a two judges’ bench

of this Court has rightly held that any such attempt must be

spurned and not accepted, as the parties should not be permitted

to file a writ petition under Article 32 of the Constitution of India, or

for that matter under Article 226 of the Constitution of India before

the High Court, and seek divorce on the ground of irretrievable

breakdown of marriage. The reason is that the remedy of a person

aggrieved by the decision of the competent judicial forum is to

approach the superior tribunal/forum for redressal of his/her

grievance. The parties should not be permitted to circumvent the

procedure by resorting to the writ jurisdiction under Article 32 or

226 of the Constitution of India, as the case may be. Secondly,

and more importantly, relief under Article 32 of the Constitution of

India can be sought to enforce the rights conferred by Part III of

the Constitution of India, and on the proof of infringement thereof.

Judicial orders passed by the court in, or in relation to, the

proceedings pending before it, are not amenable to correction

65 (2010) 4 SCC 460.

T.P. (C) No. 1118 of 2014 & Ors. Page 57 of 61

under Article 32 of the Constitution of India.

Therefore, a party

cannot file a writ petition under Article 32 of the Constitution of

India and seek relief of dissolution of marriage directly from this

Court. While we accept the said view, we also clarify that

reference in Poonam (supra) to Manish Goel (supra) and the

observation that it is questionable whether the period of six

months for moving the second motion can be waived has not been

approved by us.

Conclusion.

42. In view of the aforesaid discussion, we decide this reference by

answering the questions framed in the following manner:

(i) The scope and ambit of power and jurisdiction of this Court

under Article 142(1) of the Constitution of India.

This question as to the power and jurisdiction of this Court

under Article 142(1) of the Constitution of India is answered in

terms of paragraphs 8 to 13, inter alia, holding that this Court can

depart from the procedure as well as the substantive laws, as long

as the decision is exercised based on considerations of

fundamental general and specific public policy. While deciding

whether to exercise discretion, this Court must consider the

66 See – Sahibzada Saiyed Muhammed Amirabbas Abbasi & Others v. State Of Madhya Bharat

(Now Madhya Pradesh) & Others, AIR 1960 SC 768; Ujjam Bai v. State of Uttar Pradesh, AIR 1962

SC 1621; and Naresh Shridhar Mirajkar and Others v. State of Maharashtra and Another, AIR 1967

SC 1.

T.P. (C) No. 1118 of 2014 & Ors. Page 58 of 61

substantive provisions as enacted and not ignore the same, albeit

this Court acts as a problem solver by balancing out equities

between the conflicting claims. This power is to be exercised in a

‘cause or matter’.

(ii) In view of, and depending upon the findings of this bench on

the first question, whether this Court, while hearing a transfer

petition, or in any other proceedings, can exercise power

under Article 142(1) of the Constitution, in view of the

settlement between the parties, and grant a decree of divorce

by mutual consent dispensing with the period and the

procedure prescribed under Section 13-B of the Hindu

Marriage Act, and also quash and dispose of other/connected

proceedings under the Domestic Violence Act, Section 125 of

the Cr.P.C., or criminal prosecution primarily under Section

498-A and other provisions of the I.P.C. If the answer to this

question is in the affirmative, in which cases and under what

circumstances should this Court exercise jurisdiction under

Article 142 of the Constitution of India is an ancillary issue to

be decided.

In view of our findings on the first question, this question has

to be answered in the affirmative, inter alia, holding that this Court,

in view of settlement between the parties, has the discretion to

dissolve the marriage by passing a decree of divorce by mutual

consent, without being bound by the procedural requirement to

move the second motion. This power should be exercised with

care and caution, keeping in mind the factors stated in Amardeep

Singh (supra) and Amit Kumar (supra). This Court can also, in

exercise of power under Article 142(1) of the Constitution of India,

T.P. (C) No. 1118 of 2014 & Ors. Page 59 of 61

quash and set aside other proceedings and orders, including

criminal proceedings.

(iii) Whether this Court can grant divorce in exercise of power

under Article 142(1) of the Constitution of India when there is

complete and irretrievable breakdown of marriage in spite of

the other spouses opposing the prayer?

This question is also answered in the affirmative, inter alia,

holding that this Court, in exercise of power under Article 142(1) of

the Constitution of India, has the discretion to dissolve the

marriage on the ground of its irretrievable breakdown. This

discretionary power is to be exercised to do ‘complete justice’ to

the parties, wherein this Court is satisfied that the facts

established show that the marriage has completely failed and

there is no possibility that the parties will cohabit together, and

continuation of the formal legal relationship is unjustified. The

Court, as a court of equity, is required to also balance the

circumstances and the background in which the party opposing

the dissolution is placed.

43. For the foregoing reasons, Transfer Petition (Civil) No. 1118 of

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, a division bench of this Court has already dissolved

T.P. (C) No. 1118 of 2014 & Ors. Page 60 of 61

the marriage between the parties by invoking Article 142(1) of the

Constitution of India.

44. Transfer Petition (Criminal) Nos. 96 and 339 of 2014 may be listed

before the regular bench in the second week of May, 2023 for

appropriate orders and directions.