The Sneak Peek takes a look at of the various approaches adopted by Hon’ble Apex Court in invocation of Power under Article 142 of the Constitution to do complete justice and What it augurs for public policy and the rule of Law
The August 22, 2012, Judgment by Hon’ble Supreme Court in Devinder Singh Narula v. MeenakshiNagia (Civil Appeal No. 5946 of 2012) raises at least two very important yet related issues of legal and constitutional importance
Before we analyse the ratio of the Judgment in this case, in invoking power under Article 142, it would not be out of place to examine the approach of the Hon’ble Supreme Court adopted in the similar cases:
In Anjana Kishore v. Puneet Kishore (2002) a three-Judge bench of the Supreme Court while considering a transfer petition, directed that in (para 3):
“An application for curtailment of time for grant of divorce shall also be filed along with the joint petition. On such application being moved the Family Court may, dispensing with the need of waiting for six months, which is required otherwise by sub-section (2) of Section 13-B of the Hindu Marriage Act, 1955, pass final order on the petition within such time as it may deem fit.” [Emphasis added]
This direction was made by the Supreme Court “to do complete justice” by invoking its extraordinary power under Article 142 of the Constitution.
In this case, however, there is no revealing analysis showing how the fact matrix prompted the Bench to invoke its extraordinary powers ‘to do complete justice’ between the parties, nor an indication of the complete breakdown of the marriage necessitating the immediate dissolution of their marriage by overriding the specific statutory stipulation in Section 13-B(2). We may, therefore, call it at best a ‘non-speaking’ or a ‘closed’ case having no ‘precedent’ value.
The second approach is discernable Supreme Court as Harpreet Singh Popli v. ManmeetKaurPopli (Transfer petition (CRL) No. 27 of 2009) and Priyanka Singh v. Jayant Singh (Transfer petition (C) No. 400 of 2009). In Harpreet Singh Popli, the division bench of the Supreme Courtconcluded (para 6) by observing:
“Accordingly, H.M.A. Petition NO. 51 of 2009, pending on the file of the District Judge, Tis Hazari Courts, Delhi is withdrawn to this Court and a decree of divorce by mutual consent is passed in terms of Section 13-B of the Act by waiving the requirement of six months period specified in sub-section (2) thereof.” [Emphasis added]
On similar lines is the decision of the division bench of the Supreme Court in Priyanka Singh.
What is worth noticing here is that in these cases there is no reference either to Article 142 of the Constitution, or to the threejudge bench decision in Anjana Kishore.
In the category of third version fall such cases as Manish Goel v. RohiniGoel (Special Leave Petition (C) No. 2954 of 2010), Smt. Poonam v. SumitTanwar (Writ Petition (Civil) No. 86 of 2010), and Anil Kumar Jain v. Maya Jain (2009). In these cases, the division benches of the Supreme Court showed reluctance to invoke their extraordinary power under Article 142 to waive the statutory period of six months’- wait as prescribed in the provisions of Section 13-B(2) of the Hindu Marriage Act, 1955, although they did not wipe out the possibility of using such a power.
The basic thrust of their reasoning that revolved around the observation made by the constitution bench of the Supreme Court in Prem Chand Garg v. Excise Commissioner, UP (1963) was that the courts meant for enforcing law are not expected to issue direction in contravention of law or to direct the statutory authority to act in contravention of law.
In NeetiMalviya v. RakeshMalviya, (Transfer Petition (C) No. 899 of 2007,decided on May 12, 2010) a case in which a bench of two Judges of the Supreme Court was required to respond, whether the matrimonial court has the discretion to grant the divorce decree by waiving the statutory waiting as envisaged under subsection (2) of section 13-B of the Act of 1955.
The Supreme Court hesitated to answer this straight question in a straight manner. The reason being the impediment placed before it by a three-judge bench decision in Anjana Kishore (supra) whose correctness came to be somewhat suspected, albeit obliquely, in later decisions of the Supreme Court in Manish Goel (supra) and Smt. Poonam (supra). In this predicament, the Supreme Court in NeetiMalviya, adopted the strategy of making a reference to the three-judge bench of the Supreme Court in following terms:
“[B]oth the said decisions do not altogether rule out the exercise of extraordinary jurisdiction by this Court under Article 142 of the Constitution, yet we feel that in the light of certain observations in the said decisions, particularly in Manish Goel (supra), coupled with the fact that the decisions in Anjana Kishore (supra) was rendered by a Bench of three learned Judges of this Court, it would be appropriate to refer the matter to a Bench of three Judges in order to have a clear ruling on the issue for future guidance.”
Be that as it may, the three-judge bench decision in Anjana Kishore and the cases following it, even without its specific citation as an indication of relying on its authority, continue to remain somewhat suspect, at least seemingly, as long as we are able to find some plausible explanation to overcome the clear and categorical observation of the constitution bench of five Judges of the Supreme Court in Prem Chand Garg (supra).
In the backdrop of various approaches, letus examineDevinder Singh Narula, if we can decipher and locate any exposition that could legally and constitutionally address the two issues raised above.
In Devinder Singh Narula, by recalling the legislative objective of Section 13-B(2) of the Hindu Marriage Act, 1955, the Court has observed (para 9): “It is no doubt true that the Legislature has in its wisdom stipulated a cooling period of six months from the date of filing of a petition for mutual divorce till such divorce is actually granted, with the intention that it would save the institution of marriage,” and that “the intention of the Legislature (in this respect) cannot be faulted with.” Notwithstanding this stipulation, the apex court has stated that “there may be occasions when in order to do complete justice to the parties it becomes necessary for this Court to invoke its powers under Article 142 in an irreconcilable situation.”
To illustrate an ‘irreconcilable situation’ that would instantly justify the exercise of extraordinary power under Article 142 of the Constitution, the Supreme Court has cited its earlier decision in the case of Kiran v. SharadDutt (2000). In this case, after living separately for many years and 11 years after initiating proceedings under Section 13 of the Hindu Marriage Act, 1955, the parties filed a joint application before the Supreme Court for leave to amend the divorce petition and to convert the same into a proceeding under Section 13-B of the said Act. Treating the petition as one under Section 13-B of the Act of 1955, the Supreme Court by invoking its powers under Article 142 of the Constitution granted a decree of divorce by mutual consent at the stage of SLP itself.
The fact matrix of the cited case clearly reveals that the marriage had completely broken-down between the parties; it merely subsisted in name and not in substance. For doing ‘substantive justice’ in such a case, it is imperative to eschew formal requirements that might be otherwise extremely useful to observe for exploringthe possibility of resuscitating the marital union. The general principle on this count enunciated by the apex court, therefore, is (para 10):
“Though we are not inclined to accept the proposition that in every case of dissolution of marriage under Section 13-B of the Act the Court has to exercise its powers under Article 142 of the Constitution, we are of the opinion that in appropriate cases invocation of such power would not be unjustified and may even prove to be necessary.”
In the light of the exposition of the principle for invoking power under Article 142, the Supreme Court has examined and analysed the entire case history and come to the conclusion that the “marriage is subsisting by a tenuous thread on account of the statutory cooling off period, out of which four months have already expired,” and thus “this is one of those cases where we may invoke and exercise the powers vested in the Supreme Court under Article 142 of the Constitution” (para 13).
A perusal of exercise of extraordinary power by the Supreme Court under Article 142 of the Constitution reveals that it does not in any way negate the provisions of existing law. It merely ‘supplements’ them as if by adding a new ground of divorce based on the principle of complete breakdown of marriage through, what we may call, ‘judicial legislation’. It also impliedly means that such a waiver decision would not come within the ambit of the law declared by the Supreme Court under Article 141 of the Constitution.
However, the question remains still open wherein the waiving of six-month-waitperiod is done by the Supreme Court not specifically by invoking its special power under Article 142 of the Constitution but generally in the course of administration of justice. Such decisions of the Supreme Court are likely to be construed as the ones rendered under Article 141 of the Constitution, and, thereby empowering allthe courts in India to exercise the discretion of waiver on similar grounds while granting divorce decrees on the ground of mutual consent.
The duality of cases reflecting the waiving of statutory period with or without the invocation of power under Article 142 of the Constitution creates confusion as a matter of public policy, seriously impinging upon the rule of law. Such a duality, and much more, can be overcome by the Legislature at least in two ways in the alternative: one, by introducing the principle of irretrievable breakdown of marriage on the analogy of , say, English law; two, by adding a proviso to subsection (2) of Section 13-B to the effect that the mandatory period of six months could be waived by the designated Court upon application being made to it on the ground that the marriage has broken down irretrievably or the case is one of exceptional hardship to the petitioner or respondent, or both, as the case may be. Such incorporation through legislation proper would be in line with the constitutional design of Article 142. This is evident as its bare reading reveals that the life of ‘judicial legislation’ incorporated through the exercise of special power under Article 142 of the Constitution is ‘transitory’ in nature: its singular objective is to fill in the ‘gap’ in order to do ‘complete justice’. In terms of the constitutional mandate, after all, it stays put ‘until provision in that behalf is so made’ by the Parliament as expounded by the Supreme Court in Vineet Narain v. Union of India (1998).
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