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TMI Blog2023 (5) TMI 1387X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (2002) 10 SCC 194. This decision is rendered by a three judges' bench. and Manish Goel v. Rohini Goel (2010) 4 SCC 393 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 For Short, 'Hindu Marriage Act'. 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? However, the question was never decided, since T.P. (C) No. 899 of 2007 was ren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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. This provision, apparently unique as it does not have any counterpart in most of the major written constitutions of the world ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gours 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 'See - C.K. Allen, Law in the Making (Clarendon Press, Oxford, 1927). 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. See - Ninad Laud, Rationalising "Complete Justice" Under Article 142, (2021) 1 SCC J-30. The words 'cause or matter' in Article 142(1) of the Constitution of India, which particularise and empower this Court to do 'complete justice' in that 'cause or matter', are relatable to particular equity As this Court interprets the law and adjudicates specific cases, in many a case, it exercises and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Carbide Corporation and Ors. v. Union of India and Ors. (1991) 4 SCC 584, 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: 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 unn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... timate 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 A.R. Antulay v. R.S. Nayak and Anr. (1988) 2 SCC 602; Delhi Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and Ors. (1991) 4 SCC 406; and Mohammed Anis v. Union of India and Ors. 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. of this Court, including Prem Chand Garg and A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Code of Civil Procedure and the inherent power of the High Court Under Section 482 Code of Criminal Procedure, which provisions empower the 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 Code of Civil Procedure and the Code of Criminal Procedure Where the Code of Civil Procedure and the Code of Criminal Procedure are silent, the civil cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. See - Prem Chand Garg (supra), paragraph 13. Difference between procedural and substantive law in jurisprudential terms is contentious, albeit not necessary to be examined in depth in the present decision However, this aspect has been, to some extent, examined in paragraphs 16 to 22 and 30 infra., 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equirement 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 (2017) 8 SCC 746 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 H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 mutua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missal 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. 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 provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nitiated 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 Ors. v. State of Haryana and Anr. (2003) 4 SCC 675, this Court, notwithstanding that Section 320 of the Code of Criminal Procedure does not permit compounding of an offence Under Section 498A of the Indian Penal Code, has held that the High Court, exercising the power Under Section 482 of the Code of Criminal Procedure, 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 Anr. (2012) 10 SCC 303 and reiterated by another three judges' bench in Jitendra Raghuvanshi and Ors. v. Babita Raghuvanshi and Anr. (2013) 4 SCC 58. The reason is that the courts must not encourage matrimonial litigation, and prolongation of such litigation is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fect from 25th 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, 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 The bracketed portion was enacted vide Act No. 68 of 1976 with effect from 27.05.1976. [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) re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 26. V. Bhagat v. D. Bhagat (1994) 1 SCC 337, 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 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to live together. The situation must be such that the wronged party cannot reasonably be asked to put up with such 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to assess the effect which the behaviour had upon 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 These tests, with suitable modification, can well be applied in cases Under Section 13(1)(i-a) of the Hindu Marriage Act. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igors to Section 23(1)(a) of the Hindu Marriage Act and, consequently, the fault theory. 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 (2020) 14 SCC 657 and Sivasankaran v. Santhimeenal 2021 SCC OnLine SC 702. 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 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 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 quali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 (2011) 5 SCC 234, 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 (1991) 2 SCC 25, wherein it has been held that in a case of divorce by mutual consent, a party may withdraw the consent at any stage before the decree of divorce is passed. This ratio has been approved by a three judges' bench in Smruti Pahariya v. Sanjay Pahariya (2009) 13 SCC 338. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irm 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 (2010) 13 SCC 298, reference was made to Satish Sitole v. Ganga, (2008) 7 SCC 734 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 (2009) 6 SCC 379, this Court has held that irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act. However, Vishnu Dutt Sharma (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 partie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing a writ petition Under Article 32 of the Constitution. In Poonam v. Sumit Tanwar (2010) 4 SCC 460, 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 Under Article 32 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 discretio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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