MANISH GOEL v.

ROHINI GOEL (Special Leave Petition (C) No. 2954 of 2010)

FEBRUARY 5, 2010 [Aftab Alam and Dr. B.S. Chauhan, JJ.]

2010 (2) SCR 414

The Order of the Court was delivered by

O R D E R  

DR. B.S. CHAUHAN, J. 1. This case reveals a very sorry state of affairs  that the parties, merely being highly qualified, have claimed even to be higher  

and above the law, and have a vested right to use, misuse and abuse the  

process of the Court. Petitioner, the husband, possesses the qualifications of  

CA, CS and ICWA, while the proforma respondent-wife is a Doctor (M.D.,  

Radio-Diagnosis) by profession. The parties got married on 23rd July, 2008 in  

Delhi.  Their  marriage ran into  rough weather  and relations between them  

became  strained  immediately  after  the  marriage  and  they  are  living  

separately  since  24.10.2008.  Petitioner-husband  filed  a  Matrimonial  Case  

under Section 12 of the Hindu Marriage Act, 1955 (hereinafter called as “the  

Act”) for annulment of marriage before a competent Court at Gurgaon. The  

respondent-wife,  Smt.  Rohini  Goel  filed  a  petition  under  Section  12  r/w  

Section 23 of the Domestic Violence Act, 2005 before the competent Court at  

Delhi.  An FIR was also lodged by her  against  petitioner-husband and his  

family members under Sections 498-A, 406 and 34 of Indian Penal Code,  

1860 at PS Janakpuri, New Delhi.

2. It is stated at the Bar that by persuasion of the family members and  

friends, the parties entered into a compromise and prepared a Memorandum  

of Understanding dated 13.11.2009 in the proceedings pending before the  

Mediation  Centre,  Delhi  by  which  they  agreed  on  terms  and  conditions

incorporated therein, to settle all their disputes and also for dissolution of their  

marriage. The parties filed an application under Section 13-B(1) of the Act  

before the Family Court, i.e. ADJ-04 (West) Delhi seeking divorce by mutual  

consent.  The  said  HMA  No.456  of  2009  came  before  the  Court  and  it  

recorded the statement of parties on 16.11.2009. The parties moved another  

HMA No. 457 of 2009 to waive the statutory period of six months in filing the  

second petition. However, the Court rejected the said application vide order  

dated 1.12.2009 observing that the Court was not competent to waive the  

required statutory period of six months under the Act and such a waiver was  

permissible only under the directions of this Court as held by this Court in Anil   

Kumar Jain v. Maya Jain (2009) 10 SCC 415. Hence, this petition.

3.  The  learned  counsel  for  the  petitioner  submits  that  there  is  no  

prohibition  in  law  in  entertaining  the  petition  under  Article  136  of  the  

Constitution against the order of the Family Court and in such an eventuality,  

there was no occasion for the petitioner to approach the High Court as the  

relief  sought herein cannot be granted by any court other than this Court.  

Thus, the petitioner has a right to approach this Court against the order of the  

Family Court and the petitioner cannot be non-suited on this ground alone.

4. Article 136 of the Constitution enables this Court, in its discretion to  

grant  special  leave  to  appeal  from  any  judgment,  decree,  determination,  

sentence or order in any cause or matter passed or made by any court or  

tribunal in the territory of India.  

Undoubtedly, under Article 136 in the widest possible terms, a plenary  

jurisdiction exercisable on assuming appellate jurisdiction has been conferred  

upon this Court.  However, it  is an extra-ordinary jurisdiction vested by the  

Constitution in the Court with implicit trust and faith and thus, extra ordinary  

care and caution has to be observed while exercising this jurisdiction. There  

is no vested right of a party to approach this Court for the exercise of such a  

vast discretion, however, such a course can be resorted to when this court

feels that it is so warranted to eradicate injustice. Such a jurisdiction is to be  

exercised by the consideration of justice and call of duty. The power has to be  

exercised  with  great  care  and  due  consideration  but  while  exercising  the  

power,  the  order  should  be  passed  taking  into  consideration  all  binding  

precedents otherwise such an order would create problems in the future. The  

object of keeping such a wide power with this Court has been to see that  

injustice is not perpetuated or perpetrated by decisions of courts below. More  

so,  there  should  be  a  question  of  law of  general  public  importance  or  a  

decision which shocks the conscience of the court  are some of the prime  

requisites for grant of special leave. Thus, unless it is shown that exceptional  

and special circumstances exist that substantial and grave injustice has been  

done and that  the case in  question presents  features  of  sufficient  gravity  

warranting review of the decision appealed against, such exercise should not  

be done. The power under Article 136 cannot be used to short circuit the legal  

procedure  prescribed  in  overriding  power.  This  Court  generally  does  not  

permit a party to by-pass the normal procedure of appeal or reference to the  

High Court unless a question of principle of great importance arises. It has to  

be  exercised  exceptionally  and  with  caution  and  only  in  such  an  extra-

ordinary  situations.  More  so,  such  power  is  to  be  exercised  taking  into  

consideration the  well  established principles  which  govern the exercise of  

overriding  constitutional  powers  (vide  Dhakeswari  Cotton  Mills  Ltd.  v.   

Commissioner of Income Tax, West Bengal  AIR 1955 SC 65;  The Union of   

India v. Kishorilal Gupta & Bros. AIR 1959 SC 1362; Murtaza & Sons & Anr.   

v.  Nazir  Mohd. Khan & Ors. AIR 1970 SC 668;  Sirpur Paper Mills Ltd.  v.   

Commissioner of Wealth Tax, Hyderabad AIR 1970 SC 1520; The Municipal  Corporation,  Bhopal  v.  Misbahul  Hasan  &  Ors.  AIR  1972  SC 892; Delhi  Judicial Service Association, Tis Hazari Court, Delhi v. State of Gujarat and   

Ors. AIR 1991 SC 2176; Tirupati Balaji Developers Pvt. Ltd. & Ors. v. State of   

Bihar & Ors.  AIR 2004 SC 2351; and  F.G.P. Ltd. v. Saleh Hooseini Doctor   

(2009) 10 SCC 223).

5. In Union of India & Ors. v. Karnail Singh (1995) 2 SCC 728, this court  

while dealing with the similar issue held as under:

“It  is true that this Court  when exercises its discretionary power under  

Article 136 or passes any order under Article 142, it does so with great  

care  and  due  circumspection.  But,  when  we  are  settling  the  law  in  

exercise of this court’s discretion, such law, so settled, should be clear  

and become operational  instead of  being kept  vague,  so that  it  could  

become a binding precedent in all similar cases to arise in future.”

6.  It  has  been  canvassed  before  us  that  under  Article  142  of  the  

Constitution, this Court is competent to pass any order to do complete justice  

between the parties and grant decree of divorce even if the case may not  

meet  the  requirement  of  statutory  provisions.  The  instant  case  presents  

special features warranting exercise of such power.  

We are fully alive of the fact that this court has been exercising the power  

under Article 142 of the Constitution for dissolution of marriage where the  

Court  finds  that  marriage  is  totally  unworkable,  emotionally  dead,  beyond  

salvage and has broken down irretrievably, even if the facts of the case do  

not provide a ground in law on which the divorce could be granted. Decree of  

divorce has been granted to put quietus to all litigations between the parties  

and to save them from further agony, as it is evident from the judgments in  

Romesh Chander  v.  Savitri  AIR 1995  SC 851;  Kanchan  Devi  v.  Promod  

Kumar Mittal  AIR 1996 SC 3192;  Anita Sabharwal v. Anil Sabharwal (1997)  

11 SCC 490; Ashok Hurra v. Rupa Bipin Zaveri AIR 1997 SC 1266; Kiran v.  

Sharad Dutt (2000) 10 SCC 243; Swati Verma v. Rajan Verma AIR 2004 SC  

161; Harpit Singh Anand v. State of West Bengal (2004) 10 SCC 505; Jimmy  

Sudarshan Purohit v. Sudarshan Sharad Purohit (2005) 13 SCC 410; Durga  

P. Tripathy v. Arundhati Tripathy AIR 2005 SC 3297;; Naveen Kohli v. Neelu  

Kohli AIR 2006 SC 1675; Sanghamitra Ghosh v. Kajal Kumar Ghosh (2007) 2  

SCC 220;  Rishikesh Sharma v.  Saroj  Sharma  (2007)  2 SCC 263;  Samar

Ghosh v. Jaya Ghosh  (2007) 4 SCC 511; and  Satish Sitole v. Ganga  AIR  

2008 SC 3093.  

However,  these  are  the  cases,  where  this  Court  came to  rescue  the  

parties on the ground for divorce not provided for by the legislature in the  

statute.  

7. In  Anjana Kishore v. Puneet Kishore  (2002) 10 SCC 194, this Court  

while allowing a transfer petition directed the court concerned to decide the  

case  of  divorce  by  mutual  consent,  ignoring  the  statutory  requirement  of  

moving the motion after expiry of the period of six months under Section 13-

B(2) of the Act.

8. In Anil Kumar Jain (supra), this Court held that an order of waiving the  

statutory requirements can be passed only by this Court  in exercise of its  

powers under Article 142 of the Constitution. The said power is not vested  

with any other court.

9. However, we have also noticed various judgments of this Court taking  

a contrary view to the effect that in case the legal ground for grant of divorce  

is  missing,  exercising  such  power  tantamounts  to  legislation  and  thus  

transgression of the powers of the legislature, which is not permissible in law  

(vide  Chetan  Dass  v.  Kamla  Devi  AIR  2001  SC  1709;  and  Vishnu  Dutt   

Sharma v. Manju Sharma (2009) 6 SCC 379).

10. Generally, no Court has competence to issue a direction contrary to  

law  nor  the  Court  can  direct  an  authority  to  act  in  contravention  of  the  

statutory provisions. The courts are meant to enforce the rule of law and not  

to pass the orders or directions which are contrary to what has been injected  

by law. (Vide State of Punjab & Ors. v. Renuka Singla & Ors (1994) 1 SCC  

175; State of U.P. & Ors. v. Harish Chandra & Ors. AIR 1996 SC 2173; Union  

of  India  & Anr.  v.  Kirloskar  Pneumatic  Co.  Ltd.  AIR 1996 SC 3285;  Vice  

Chancellor, University of Allahabad & Ors. v. Dr. Anand Prakash Mishra &

Ors. (1997) 10 SCC 264; and Karnataka State Road Transport Corporation v.   

Ashrafulla Khan & Ors. AIR 2002 SC 629).  

11. A Constitution Bench of this Court in  Prem Chand Garg & Anr.  v.   

Excise Commissioner, U.P. & Ors. AIR 1963 SC 996 held as under:

“An  order  which this  Court  can  make in  order  to  do  complete  justice  

between the parties, must not only be consistent with the fundamental  

rights guaranteed by the Constitution, but it cannot even be inconsistent   

with the substantive provisions of the relevant statutory laws.”

The Constitution Benches of this Court in Supreme Court Bar Association  

v. Union of India & Anr.  AIR 1998 SC 1895; and  E.S.P. Rajaram & Ors. v.   

Union of India & Ors.  AIR 2001 SC 581 held that under Article 142 of the  

Constitution, this Court cannot altogether ignore the substantive provisions of  

a  statute and pass orders concerning an issue which can be settled only  

through a mechanism prescribed in another statute. It is not to be exercised  

in a case where there is no basis in law which can form an edifice for building  

up a superstructure.  

12. Similar view has been reiterated in A.R. Antulay v. R.S. Nayak & Anr.   

(1988)  2  SCC 602;  Bonkya alias  Bharat  Shivaji  Mane & Ors.  v.  State of  

Maharashtra  (1995) 6 SCC 447;  Common Cause, a Registered Society v.   

Union of India & Ors. AIR 1999 SC 2979; M.S. Ahlawat v. State of Haryana  

AIR 2000 SC 168;  M.C. Mehta v. Kamal Nath & Ors.  AIR 2000 SC 1997;  

State of Punjab & Anr. v. Rajesh Syal  (2002) 8 SCC 158;  Government of  

West  Bengal  v.  Tarun  K.  Roy  & Ors.  (2004)  1  SCC 347;  Textile  Labour  

Association v. Official Liquidator  AIR 2004 SC 2336;  State of Karnataka &  

Ors.  v.  Ameerbi  &  Ors.  (2007)  11  SCC  681;  Union  of  India  &  Anr.  v.   

Shardindu AIR 2007 SC 2204; and Bharat Sewa Sansthan v. U.P. Electronic  

Corporation Ltd. AIR 2007 SC 2961.  

13. In Teri Oat Estates (P) Ltd. v. UT. Chandigarh (2004) 2 SCC 130, this  

Court held as under:

“36….. sympathy or sentiment by itself cannot be a ground for passing an  

order in relation whereto the appellants miserably fail to establish a legal  

right. … despite an extraordinary constitutional jurisdiction contained in  

Article  142 of  the Constitution  of  India,  this  Court  ordinarily  would  not  

pass an order which would be in contravention of a statutory provision.”

14. In Laxmidas Morarji (dead) by L.Rs. v. Behrose Darab Madan (2009)  

10  SCC  425,  while  dealing  with  the  provisions  of  Article  142  of  the  

Constitution, this Court has held as under:

“ ….The power under Article 142 of the Constitution is a constitutional  

power  and  hence,  not  restricted  by  statutory  enactments.  Though the  

Supreme  Court  would  not  pass  any  order  under  Article  142  of  the  

Constitution  which  would  amount  to  supplanting  substantive  law  

applicable  or  ignoring  express  statutory  provisions  dealing  with  the  

subject, at the same time these constitutional powers cannot in any way,  

be controlled by any statutory provisions. However, it is to be made clear  

that this power cannot be used to supplant the law applicable to the case.  

This means that acting under Article 142, the Supreme Court cannot pass  

an order or grant relief which is totally inconsistent or goes against the   

substantive or statutory enactments pertaining to the case. The power is  

to  be  used  sparingly  in  cases  which  cannot  be  effectively  and  

appropriately  tackled  by  the  existing  provisions  of  law  or  when  the  

existing provisions of law cannot bring about complete justice between  

the parties.” (Emphasis added)

15. Therefore, the law in this regard can be summarised to the effect that  

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

generally does not pass an order in contravention of or ignoring the statutory  

provisions nor the power is exercised merely on sympathy.  

16. The instant  case requires to be examined in the light  of  aforesaid  

settled legal propositions. Parties got married on 23.7.2008 and as they could

not bear each other,  started living separately from 24.10.2008.  There had  

been  claims  and  counter  claims,  allegations  and  criminal  prosecution  

between them. Petitioner approached the Competent Court at Gurgaon for  

dissolution of marriage. Admittedly, that case is still  pending consideration.  

Parties filed the petition for divorce by mutual consent only in November 2009  

before the Family Court, Delhi. Learned counsel for the petitioner could not  

explain as to how the case for divorce could be filed before the Family Court,  

Delhi during the pendency of the case for divorce before the Gurgaon Court.  

Such a procedure adopted by the petitioner amounts to abuse of process of  

the court. Petitioner has approached the different forums for the same relief  

merely  because  he  is  very  much  eager  and  keen  to  get  the  marriage  

dissolved immediately even by abusing the process of the Court. In Jai Singh  

v. Union of India  AIR 1977 SC 898, this Court while dealing with a similar  

issue held that a litigant cannot pursue two parallel remedies in respect of the  

same  matter  at  the  same  time.  This  judgment  has  subsequently  been  

approved by this Court in principle but distinguished on facts in Awadh Bihari   

Yadav v. State of Bihar AIR 1996 SC 122; and Arunima Baruah v. Union of  

India (2007) 6 SCC 120.  

17. In  Dr. Buddhi Kota Subbarao v. K. Parasaran & Ors.  AIR 1996 SC  

2687, this Court has observed as under:-

“No litigant has a right to unlimited drought on the Court time and public  

money  in  order  to  get  his  affairs  settled  in  the  manner  he  wishes.  

However,  access to justice should not be misused as a licence to file  

misconceived and frivolous petitions.”

18.  Even  otherwise,  the  statutory  period  of  six  months  for  filing  the  

second petition under Section 13-B(2)  of  the Act  has been prescribed for  

providing  an  opportunity  to  parties  to  reconcile  and  withdraw  petition  for  

dissolution  of  marriage.  Learned  counsel  for  the  petitioner  is  not  able  to  

advance arguments on the issue as to whether, statutory period prescribed

under Section 13-B(1) of the Act is mandatory or directory and if directory,  

whether could be dispensed with even by the High Court in exercise of its  

writ/appellate jurisdiction.  

Thus,  this  is  not  a case where there has been any obstruction to the  

stream of justice or there has been injustice to the parties, which is required  

to be eradicated, and this Court may grant equitable relief. Petition does not  

raise  any  question  of  general  public  importance.  None  of  contingencies,  

which may require this Court to exercise its extraordinary jurisdiction under  

Article 142 of the Constitution, has been brought to our notice in the case at  

hand.  

19. Thus, in view of the above, we do not find any justification to entertain  

this petition. It is accordingly dismissed.