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Scope of Supreme Court’s power under Article 142 to dissolve marriage

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION
TRANSFER PETITION (CIVIL) NO.1118 OF 2014

SHILPA SAILESH … PETITIONER

VS.

VARUN SREENIVASAN … RESPONDENT

WITH
TRANSFER PETITION (CRL.) NO.96 OF 2014
TRANSFER PETITION (CRL.) NO.382 OF 2014
TRANSFER PETITION (CRL.) NO.468 OF 2014
TRANSFER PETITION (CIVIL) NOS.1481-1482 OF 2014
TRANSFER PETITION (CRL.) NO.339 OF 2014

O R D E R

Heard the parties.

A perusal of order passed on 6th May, 2015 including signed order of that day shows that case of Mrs.Shilpa Sailesh (Transfer Petition (Civil) No. 1118/2014) stands finally decided but only for considering two larger questions formulated in paragraph 5 of the signed order, the matters have been kept pending. For convenience sake, paragraphs 4 to 7 of that order are extracted hereinbelow:-

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

6. To enable us to take an appropriate decision of the matter we seek the assistance of the following learned Senior Counsels.

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(i) Mr. V.Giri
(ii) Mr. Dushyant Dave
(iii) Ms. Indira Jaising
(iv) Ms. Meenakshi Arora

7. A copy of the present order be furnished to the aforesaid learned Senior Counsels. The matters will be listed in the month of August, 2015.”

Written notes have been prepared by Mrs.Indira Jaising, Senior Advocate for the assistance of the Court. The same are taken on record with a request to the counsel to furnish a copy of the report to the other three counsels appointed as Amicus by the Court. Written submissions on behalf of the Attorney General have also been received, in which, inter alia, it has been highlighted that the two questions of law framed amount to substantial questions of law as to the interpretation of the Constitution and hence in view of Article 145(3) of the Constitution, the matter should be heard by a Constitution Bench of atleast five Judges. In the notes, reliance has been placed upon the judgment of this Court in the case of Pradip Chandra Parija vs. Pramod Chandra Pattnaik (2002) 1 SCC 1, rendered by a Bench of five Judges who have opined that in a situation when two Judge Bench is of the opinion that provisions of clause 3 of Article 145 are attracted, the Bench may refer the matter directly to the Constitution Bench.

In our view also, the two questions formulated earlier require a reference to Constitution Bench on account of clause 3 of Article 145 of the Constitution. It is noted that in the notes furnished on behalf of the Attorney General, in paragraph 5 two other questions of law have also been indicated which may require consideration by a Constitution Bench. It would be better to leave the matter to the discretion of the Constitution Bench itself whether it will be inclined to consider those two other questions of law or not.

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Office is directed to furnish copies of the written submissions filed on behalf of the Attorney General to all the four counsels who have been requested to assist the court.

As indicated earlier the case of Mrs. Shilpa Sailesh stands substantially disposed of but the remaining matters being TP(Civil) Nos. 96 and 339 of 2014 require further consideration because decision of the Constitution Bench may take time. Counsels have submitted that in both these matters the spouses have filed application for dissolution of marriage by mutual consent but directly before this Court for consideration under Article 142 of the Constitution of India. Since a doubt has arisen whether this Court should exercise such power directly or not, we deem it proper and in the interest of justice to permit parties in both the aforesaid matters to approach the court of competent jurisdiction with copies of their application filed in this court supported by affidavit along with proper petition seeking divorce on the basis of mutual consent.

Since the parties had filed such application for dissolution of marriage earlier and those have remained pending in this court for quite some time, we direct the courts concerned to consider the period for which the applications have been pending in this Court towards the period required under Section 13B(2) of the Hindu Marriage Act, 1955 so that the parties may not suffer for no fault of theirs. With this liberty to the parties that they may get their divorce application disposed of by the competent court in accordance with law, the matters are referred to the larger Bench as indicated above for decision of the questions of law already indicated.

If any of the counsels who have been assisting the court have not yet filed submissions, may do so at an early date at their convenience.

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[SHIVA KIRTI SINGH]
[R.BANUMATHI]
New Delhi;
June 29, 2016.

ITEM NO.50 COURT NO.14 SECTION XVIA

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS
Transfer Petition(s)(Civil) No(s). 1118/2014

SHILPA SAILESH Petitioner(s)

VERSUS

VARUN SREENIVASAN Respondent(s)

(With appln. (s) for joint application for divorce and stay and office report)

WITH

T.P.(Crl.) No. 96/2014

(With appln.(s) for passing appropriate order or decree under article 142 of the constitution and appln.(s) for stay and Office Report)

T.P.(Crl.) Nos. 382/2014 and 468/2014

(With appln.(s) for joint application for divorce and appln.(s) for stay and Office Report)

T.P.(C) No. 1481-1482/2014

(With appln.(s) for joint application for divorce and appln.(s) for stay and Office Report)

T.P.(Crl.) No. 339/2014

(With appln.(s) for ex-parte stay and Office Report)

Date : 29/06/2016 These petitions were called on for hearing today.

CORAM :
HON’BLE MR. JUSTICE SHIVA KIRTI SINGH
HON’BLE MRS. JUSTICE R. BANUMATHI

For Petitioner(s)
Ms. Meenakshi Arora,Sr.Adv. (A.C.)
Ms. Indira Jaising,Sr.Adv. (A.C.)
Mr. Rohan Pankaj Kothari,Adv.
Ms. Sudha Shankar,Adv.
For Mr. V.Giri,Sr.Adv. (A.C.)
Mr. Himinder Lal,Adv.
Mr. Dushyant Dave,Sr.Adv. (A.C.)
Ms Hetu Arora Sethi,Adv.
Mr. Darpan K.M.,Adv.
Mr. Nirnimesh Dube,Adv.
Mr. Ankur S.Kulkarni,Adv.
Mr. Anand Srivastava,Adv.
Mr.Shubham Jaiswal,Adv.
Ms.Shweta S.Parihar,Adv.

For M/s. Lex Regis Law Offices,Advs.
For Respondent(s) Mr. Nirnimesh Dube,Adv.
Mr. Ankur S.Kulkarni,Adv.
Mr. Anand Srivastava,Adv.
Mr.Shubham Jaiswal,Adv.
Ms.Shweta S.Parihar,Adv.
For M/s. Lex Regis Law Offices,Advs.
Mr. Ekansh,Adv.
Mr. Yunus Malik,Adv.
Ms. Rajeeta Raj,Adv.
Mr. Sanjeev Agarwal,Adv.
Mr. Himinder Lal,Adv.

UPON hearing the counsel the Court made the following

O R D E R

Heard the parties.

The transfer petitions are referred to the larger Bench for decision of the questions of law in terms of the signed order.

(Anita Malhotra) (Madhu Narula)
Court Master Court Master
(Signed order is placed on the file.)

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