Exercise of jurisdiction under Article 142(1) of the Constitution of India by Supreme Court in such cases is clearly permissible to do `complete justice’ to a `cause or matter’. We should accept that Supreme Court can pass an order or decree which a family court, trial court or High Court can pass. As per Article 142(1) of the Constitution of India, a decree passed or an order made by Supreme Court is executable throughout the territory of India.[1]
Power of Supreme Court under Articles 136 and 142(1) of the Constitution of India will certainly embrace and enswathe this power to do `complete justice’, even when the main case/proceeding is pending before the family court, the trial court or another judicial forum. A question or issue of lack of subject-matter jurisdiction does not arise. Settlements in matrimonial matters invariably end multiple legal proceedings, including criminal proceedings in different courts and at diverse locations.
Necessarily, in such cases, the parties have to move separate applications in multiple courts, including the jurisdictional High Court, for appropriate relief and closure, and disposal and/or dismissal 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 Supreme Court exercises the power under Article 142(1) of the Constitution of India, it assists and aids the cause of justice.
In the case of Shilpa Shailash v. Varun Srinivasan (2023), the Supreme Court while anlaysing the issue held that 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 Supreme 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 provisions.
In Amit Kumar v. Suman Beniwal (2021) SCC Online SC 1270, Supreme Court has held that reading of sub-sections (1) and (2) to Section 13B of the Hindu Marriage Act envisages a total waiting period/gap of one and a half years from the date of separation for the grant of decree of divorce by mutual consent. Once the condition for waiting period/gap of one and a half year from the date of separation is fulfilled, it can be safely said that the parties had time to ponder, reflect and take a conscious decision on whether they should really put the marriage to end for all times to come. This period of separation prevents impulsive and heedless dissolution of marriage, allows tempers to cool down, anger to dissipate, and gives the spouses time to forgive and forget.
At the same time, when there is complete separation over a long period and the parties have moved apart and have mutually agreed to separate, it would be incoherent to perpetuate the litigation by asking the parties to move the trial court.
In Shilpa Shailash, the court further held that,
21. In our opinion, Section 13B of the Hindu Marriage Act does not impose any fetters on the powers of Supreme Court to grant a decree of divorce by mutual consent on a joint application, when the substantive conditions of the Section are fulfilled and the Court, after referring to the factors mentioned above, is convinced and of the opinion that the decree of divorce should be granted.
22. The legislature and the courts treat matrimonial litigations as a special, if not a unique, category. Public policy underlying the legislations dealing with family and matrimonial matters is to encourage mutual settlement, as is clearly stated in section 89 of the C.P.C., section 23(2) of the Hindu Marriage Act, and section 9 of the Family Courts Act, 1984. Given that there are multiple legislations governing different aspects, even if the cause of dispute is identical or similar, most matrimonial disputes lead to a miscellany of cases including criminal cases, at times genuine, and on other occasions initiated 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 Others v. State of Haryana and Another (2003) 4 SCC 675, Supreme Court, notwithstanding that section 320 of the Cr.P.C., 1973 does not permit compounding of an offence under Section 498A of the I.P.C., has held that the High Court, exercising the power under section 482 of the Cr.P.C., 1973 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 Another (2012) 10 SCC 303 and reiterated by another three judges’ bench in Jitendra Raghuvanshi and Others v. Babita Raghuvanshi and Another (2013) 4 SCC 58. The reason is that the courts must not encourage matrimonial litigation, and prolongation of such litigation is detrimental to both the parties who lose their young age in chasing multiple litigations. Thus, adopting a hyper-technical view can be counter-productive as pendency itself causes pain, suffering and harassment and, consequently, it is the duty of the court to ensure that matrimonial matters are amicably resolved, thereby bringing the agony, affliction, and torment to an end.
In this regard, the courts only have to enquire and ensure that the settlement between the parties is achieved without pressure, force, coercion, fraud, misrepresentation, or undue influence, and that the consent is indeed sought by free will and choice, and the autonomy of the parties is not compromised. The latter two decisions in Gian Singh (supra) and Jitendra Raghuvanshi and Others (supra) observe that the inherent power on the High Court under section 482 of the Cr.P.C., 1973 is wide and can be used/wielded to quash criminal proceedings to secure the ends of justice and prevent abuse of the process of the court, albeit it has to be exercised sparingly, carefully, and with caution.
Supreme Court, in State of Madhya Pradesh v. Laxmi Narayan and Others (2019) 5 SCC 688, has set out guidelines as to when the High Court may exercise jurisdiction under the inherent powers conferred under section 482 of the Cr.P.C., 1973 for quashing non-compoundable offences in terms of section 320 of the Cr.P.C., 1973 In view of the above legal position and discussion, Supreme Court, on the basis of settlement between the parties, while passing a decree of divorce by mutual consent, can set aside and quash other proceedings and orders, including criminal cases and First Information Report(s), provided the conditions, as specified in the aforementioned judgments, are satisfied.
Reference
Shilpa Shailash v. Varun Srininvasan (2023)
[1] the Supreme Court (Decrees and Orders) Enforcement Order, 1954 (C.O.47)