Reportable

IN THE SUPREME COURT OF  INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 86 OF 2010

Smt. Poonam ….. Petitioner   

Versus

Sumit Tanwar ….. Respondent  

O R D  E R   

Dr. B.S. CHAUHAN,  J.

1. This  Writ  Petition  has  been  filed  under  Article  32  of  the  

Constitution of India for awarding the decree of divorce, annulling  

the marriage of the parties herein; and/or issue directions waiving  

the statutory period of six months provided under Section 13-B(2)  

of the Hindu Marriage Act, 1955 (hereinafter referred to as, “The  

Act, 1955”).   

2. The facts and circumstances giving rise to the present case are  

that  the  petitioner  and  the  respondent  got  married  on  30.11.2008

according to Hindu rites in Delhi.  They separated just after two days  

of  their  marriage  i.e.  on  02.12.2008.   A  petition  for  dissolution  of  

marriage by consent being HMA No. 197/09 dated 09.09.2009 was  

filed under Section 13-B(1) of The Act, 1955.  The Family Court of  

Delhi,  vide  order  dated  25.11.2009  accepted  the  said  HMA  No.  

197/2009 (titled as Poonam Vs. Sumit Tanwar) observing as under :-

“7.  In  view of  Section 13(B)(2)  of  the Hindu Marriage  Act,  the  marriage  between  the  parties  cannot  be  dissolved straightaway in the present case.  As per the  statutory  requirement,  parties  are  advised  to  make  further  efforts  for  reconciliation  in  order  to  save  their   marriage.  In case they are unable to do so, the parties  may come up with the petition of second motion under  Section 13-B(2) of the Hindu Marriage Act as per law.   The present petition under Section 13-B(1) of the Hindu  Marriage  Act  is  hereby  allowed  and  stands  disposed  of……....”.

3. Being aggrieved by the order of the Family Court, the present  

Writ  Petition  has been filed.   The matter  came up for  preliminary  

hearing on 19.03.2010.  Mr. A., an proxy counsel, was not able to  

explain as under what circumstances, a Writ Petition under Article 32  

of the Constitution is maintainable for such a relief and as to whether  

the Court has the power to issue a writ to the Court/Tribunal to violate  

a mandatory statutory provision.  The learned counsel was also not  

2

able to explain under what circumstances a writ petition lies; who is  

amenable  to writ jurisdiction; and which are the necessary parties in  

a writ petition?  The matter was passed over and the proxy counsel  

was asked to come along with Mr. B., Advocate-on-Record, who had  

signed and filed the petition.  In the second round when the matter  

was  taken  up,  another  proxy  counsel  appeared  and  introduced  

himself as brother of  Mr. B., Advocate-on-Record.  The second proxy  

counsel also expressed his inability to render any assistance to the  

Court  on  any  legal  issue.   Being  faced  with  an  inordinate  and  

unfortunate situation that the matter had been filed in the Apex Court  

of the Country and the appearing counsel was not able to render any  

assistance, the matter was adjourned for Monday i.e. for 22.03.2010  

and the learned Advocate-on-Record Mr. B. was requested to appear  

in the Court.   

4. Mr.  B.  learned Advocate-on-Record appeared in  Court  today  

and  could  not  furnish  any  explanation  whatsoever  to  defend  the  

petition,  nor  he  could  explain  how  this  petition  is  maintainable.  

However,  he  tendered  absolute  and  unconditional  apology  and  

3

assured that he will not lend his name merely for filing the petition by  

other counsel in future.  

5. This very Bench decided a Special  Leave Petition (Civil)  No.  

2954/2010 (Manish Goel Vs. Rohini Goel) vide Judgment and Order  

dated 05.02.2010 observing that this Court, in exercise of its powers  

under Article 142 of the Constitution, generally should not issue any  

direction to waive the statutory requirement.  The Courts are meant to  

enforce the law and therefore, are not expected  to issue a direction  

in contravention of law or to direct  the statutory authority to act in  

contravention of law.  While deciding the said case, reliance has been  

placed upon a large number  of  Judgments  of  this  Court  including  

Constitution Bench Judgments of this Court viz. Prem Chand Garg &  

Anr.  Vs.  Excise  Commissioner,  UP  &  Anr. AIR  1963  SC  996;  

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.     

6. In the said case, a similar relief was claimed, however, it was  

rejected  observing  that  statutory  period  of  six  months  for  filing  a  

4

second petition under Section 13-B(2) of  The Act,  1955 has been  

prescribed for providing an opportunity to the parties to reconcile and  

withdraw the petition for dissolution and as it was not a case where  

there has been any obstruction to the stream of justice nor there had  

been injustice to the parties, which was required to be undone, this  

Court refused to grant the relief under Article 136 of the Constitution  

of India.    

7. The  citizens  are  entitled  to  appropriate  relief  under  the  

provisions of Article 32 of the Constitution, provided it is shown to the  

satisfaction of the Court that the Fundamental Right of the petitioner  

had been violated. (Vide  Daryao & Ors. Vs. State of U.P. & Ors.  

AIR 1961 SC 1457).  This Court has a constitutional duty to protect  

the  Fundamental  Rights  of  Indian  citizens.  (Vide  M.C.  Mehta  Vs.  

Union of India AIR 2006 SC 1325).       

The distinction in a Writ Petition under Article 226 and Article 32  

of the Constitution is that the remedy under Article 32 is available  

only for enforcement of the Fundamental Rights, while under Article  

226 of the Constitution, a Writ  Court can grant relief  for any other  

purpose also. (Vide A.K. Gopalan Vs. State of Madras AIR 1950 SC  

27; Bhagwandas Gangasahai Vs. Union of India & Ors. AIR 1956  

5

SC 175; Kalyan Singh Vs. State of Uttar Pradesh & Ors. AIR 1962  

SC 1183; Fertilizer Corporation Kamagar Union, Sindri & Ors. Vs.  

Union of India & Ors. AIR 1981 SC 344).       

Even  if  it  is  found  that  injury  caused  to  the  writ  petitioner  

alleging violation of Fundamental Right is too indirect or remote, the  

discretionary writ  jurisdiction may not be exercised as held by this  

Court in State of Rajasthan & Ors. Vs. Union of India AIR 1977 SC  

1361.

8. More so, a writ lies only against a person if it is a statutory body  

or performs a public  function or discharges a public or  a statutory  

duty, or a “State” within the meaning of Article 12 of the Constitution.  

(Vide Anandi Mukta Sadguru Trust Vs. V.R. Rudani AIR 1989 SC  

1607;  VST Industries Ltd. Vs. VST Industries Workers’ Union &  

Anr. (2001) 1 SCC 298; and State of Assam Vs. Barak Upatyaka  

U.D. Karamchari Sanstha AIR 2009 SC 2249).

9. It  is  settled  legal  proposition  that  the  remedy  of  a  person  

aggrieved  by  the  decision  of  the  competent  judicial  Tribunal  is  to  

6

approach for  redress a superior  Tribunal,  if  there is  any,  and that  

order cannot be circumvented by resorting to an application for a writ  

under Article 32 of the Constitution.  Relief under Article 32 can be for  

enforcing a right conferred by Part III of the Constitution and only on  

the proof of infringement thereof.   If  by adjudication by a Court  of  

competent  jurisdiction,  the  right  claimed  has  been  negatived,  a  

petition under Article 32 of the Constitution is not maintainable.  It is  

not generally assumed that a judicial decision pronounced by a Court  

may violate the Fundamental Right of a party. Judicial orders passed  

by the Court in or in relation to proceeding pending before it are not  

amenable to be corrected by issuing a writ under  Article 32 of the  

Constitution.   (Vide  Sahibzada  Saiyed  Muhammed  Amirabbas  

Abbasi  &  Ors.  Vs.  the  State  of  Madhya  Bharat  (now Madhya  

Pradesh) & Ors.  AIR 1960 SC 768; Smt. Ujjam Bai Vs. State of  

Uttar Pradesh & Anr.  AIR 1962 SC 1621; and Naresh Shridhar  

Mirajkar Vs. State of Maharashtra AIR 1967 SC 1)   

10. In the instant case, the Family Court, Delhi has passed an order  

strictly in accordance with law asking the parties to wait for statutory  

period of six months to file the second motion in the case.  In such a  

7

fact-situation, it is not permissible to suggest that the aforesaid order  

has violated or infringed any of the fundamental rights or any legal  

right  of  the parties.   Therefore,  we are not  able to  understand as  

under  what  circumstances,  the  writ  is  maintainable.   The  learned  

counsel appearing for the petitioner is not able to explain under what  

circumstances, the petition has been filed and as to whether such a  

petition is maintainable or whether  relief  of  dissolution of  marriage  

could be sought  by the parties  directly  from this  Court  in  a case,  

wherein the marriage had taken place only a year and three months  

ago.  The counsel was not able even to explain that even if the Court  

considers to issue the writ, to whom it would be issued as the only  

parties  in  the  case  are  wife  and  husband,  who  are  seeking  the  

divorce by consent.  The learned counsel is not able to enlighten the  

Court  as  to  whether  the  Family  Court  could  be  impleaded in  this  

petition.  He expressed his inability to answer any question.   

11. In  Thakur Sukhpal Singh Vs. Thakur Kalyan Singh & Anr.,  

AIR 1963 SC 146, this  Court  has  held  that  in  absence of  proper  

assistance to the Court by the lawyer, there is no obligation on the  

part of the Court to decide the case, for the simple reason that unless  

8

the lawyer renders the proper assistance to the Court, the Court is  

not able to decide the case.  It is not for the Court itself to decide the  

controversy.  The counsel cannot just raise the issues in his petition  

and leave it  to the Court  to give its decision on those points after  

going through the record and determining the correctness thereof.  It  

is not for the Court itself to find out what the points for determination  

can be and then proceed to give a decision on those points.

12. While deciding the said case, this Court placed reliance upon  

the judgment of Privy Council in Mst. Fakrunisa & Ors. Vs. Moulvi  

Izarus Sadik & Ors., AIR 1921 PC 55 wherein it had been observed  

as under:–

“In every appeal it is incumbent upon the appellants to show  some reason why the  judgment  appealed from should  be  disturbed; there must be some balance in their favour when  all the circumstances are considered to justify the alteration  of the judgment that stands. Their Lordships are unable to  find that this duty has been discharged.”

13. In  The Bar Council of Maharashtra Vs. M. V. Dabholkar &  

Ors. AIR 1976 SC 242, this Court had observed as under :-

“Be  it  remembered  that  the  central  function  of  the  legal  profession is to promote the administration of justice.  If the  

9

practice of law is thus a public utility of great implications and  a monopoly is statutorily granted by the nation, it obligates  the lawyer to observe scrupulously those norms which make  him worthy of the confidence of the community in him as a  vehicle  of  justice  –  social  justice………………Law  is  no  trade, briefs no merchandise.”  

14. In  T.C.  Mathai  &  Anr.  Vs.  District  &  Sessions  Judge,  

Thiruvananthapuram AIR 1999 SC 1385, this  Court observed:

“The work in  a Court  of  law is  a serious and responsible  function.  The  primary  duty  of  a.......court  is  to  administer.......justice.  Any  lax  or  wayward  approach,  if  adopted; towards the issues involved in the case, can cause  serious consequences for the parties concerned........In the  adversary system which is now being followed in India, both  in civil  and criminal  litigation,  it  is  very necessary that  the  Court  gets  proper  assistance  from  both  sides……………. Efficacies discharge of judicial process very often depends  upon the valuable services rendered by the legal profession”

15. In D.P. Chadha Vs. Triyugi Narain Mishra & Ors., AIR 2001  

SC 457, this Court has observed as under:–

“..........Mutual  confidence  in  the  discharge  of  duties  and  cordial  relations  between  Bench  and  Bar  smoothen  the  movement  of  the  chariot.  As  responsible  officers  of  the  Court, as they are called ---- and rightly, the counsel have an  overall obligation of assisting the Courts in a just and proper  manner in the just and proper administration of justice.”

10

16. Thus, in view of the above, law can be summarised to the effect  

that,  in  case,  the  counsel  for  the  party  is  not  able  to  render  any  

assistance, the Court may decline to entertain the petition.      

17. There  is  another  aspect  of  the  matter.   In  case,  petitioner’s  

counsel is not able to raise a factual or legal issue, though such a  

point may have a good merit, the Court should not decide the same  

as the opposite counsel does not “have a fair opportunity to answer  

the line of reasoning adopted” in this behalf.  Such a judgment may  

be violative of principles of natural justice. (vide New Delhi Municipal  

Committee vs. State of Punjab AIR 1997 SC 2847).

18. While  dealing  with  a  similar  issue,  this  Court  in  Re:  Sanjiv  

Datta (1995) 3 SCC 619 observed as under:-  

“Of late,  we have been coming across several  instances  which can only be described as unfortunate both for the  legal  profession  and  the  administration  of  justice.  It  becomes, therefore, our duty to bring it to the notice of the  members  of  the  profession  that  it  is  in  their  hands  to  improve the quality of the service they render both to the  litigant-public and to the courts, and to brighten their image  in the society.  Some members of the profession have  been  adopting  perceptibly  casual  approach  to  the  

11

practice  of  the  profession as  is  evident  from  their  absence  when  the  matters  are  called  out,  the  filing  of  incomplete and inaccurate pleadings — many times even  illegible  and without  personal  check  and  verification,  the  non-payment of court fees and process fees, the failure to  remove office objections, the failure to take steps to serve  the parties, et al. They do not realise the seriousness of  these acts and omissions. They not only amount to the  contempt of the court but do positive disservice to the  litigants and create embarrassing situation in the court  leading to avoidable unpleasantness and delay in the  disposal of matters. This augurs ill for the health of our  judicial system…….  The legal profession is different from  other professions in that what the lawyers do, affects not  only an individual but the administration of justice which is  the foundation of the civilised society.” (emphasis added)

19.    In  Vijay Dhanji Chaudhary Vs. Suhas Jayant Natawadkar  

(2010) 1 SCC 166, this Court has taken note of the ongoing rampant  

unethical practice by some of the Advocates-on-Record, duly enrolled  

under  the provisions of  the Supreme Court  Rules,  1966,  as many  

special leave petitions are being filed by them being merely as name-

lenders, without having, or taking any responsibility for the case.  As  

a  result  of  prevalence  of  such  a  practice,  in  such  cases,  the  

Advocates-on-Record do not appear when matters are listed before  

the  Court,  nor  do  they  take  any  interest  or  responsibility  for  

processing  or  conducting  the  case.   They  also  play  no  role  in  

preparation of the petitions,  nor ensure that requirements of Rules  

12

are fulfilled and defects are cured.  If role of an Advocate-on-Record  

is merely to lend his name for filing cases without being responsible  

for  conduct  of  a  case,  the  very  purpose  of  having  the  system of  

Advocates-on-Record would get defected.  

In the said case, this Court did not merely dismiss the petition  

for not rendering any assistance by the appearing counsel in absence  

of  the  Advocate-on-Record,  rather  issued  notice  to  the  Supreme  

Court  Bar  Association  and  the  Advocates-on-Record’s  Association  

asking for suggestions for improving the system and to compel such  

mere name-lending Advocates-on-Record to  serve the purpose for  

which they have been enrolled.   The matter  is to come for further  

consideration after  those Associations submit  their  suggestions for  

observance and strict adherence to the Rules, as is evident from the  

proceedings in that case dated 30.11.2009, 08.03.2010, 15.03.2010  

and 18.03.2010.

20. The  aforesaid  facts  reveal  that  application  for  dissolution  of  

marriage was filed only on 9.9.2009 before the Family Court and the  

said application was disposed of vide order dated 25.11.2009 asking  

the parties to wait for six months. Thus, it is not a case that there had  

13

been any delay in disposal of  the case by the Family Court.   The  

petition has been filed without any sense of responsibility either by  

the parties or their counsel. Such a practice is tantamount to not only  

disservice  to  the  institution  but  it  also  adversely  affects  the  

administration  of  justice.   Conduct  of  all  of  them  has  been  

reprehensible.   

 For the reasons aforesaid, this petition is dismissed.   

…………………………J. (AFTAB ALAM)

………………………..J. (Dr. B.S. CHAUHAN)

New Delhi, March 22, 2010

14

IN THE SUPREME COURT OF  INDIA CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 86 OF 2010

Smt. Poonam ….. Petitioner   

Versus

Sumit Tanwar ….. Respondent  

Dear Brother,

A  draft  order  in  the  above  mentioned  matter  is  being  sent  herewith for your kind perusal and favourable consideration.

With regards,

   Yours sincerely,

(Dr. B.S. CHAUHAN)

HON’BLE MR. JUSTICE AFTAB ALAM

15