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Petition under Article 32 for awarding the decree of divorce is maintainable or not?

CASE BRIEF

POONAM

vs.

SUMIT TANWAR

Appellants- Poonam

Respondents- Sumit Tanwar

Decided On: 22.03.2010

Statues Referred-

  1. Constitution of India,1950 – Article 32,136,142 and 226.
  2. The Hindu Marriage Act, 1955 – Sections 13-B (1) and 13-B (2)
  3. Supreme Court Rules,1966.

Facts:

  1. Smt. Poonam and Sumit tanwar 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.
  2. 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 Hindu Marriage Act, 1955.
  3. The Family Court of Delhi, order dated 25.11.2009 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.
  4. In accordance with law asking the parties to wait for statutory period of six months to file the second motion in the case.
  5. 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.
  6.  In such a 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.

Issue;

Writ petition under Article 32 of Constitution of India for awarding the decree of divorce is maintainable or not?

Whether the Court has the power to issue a writ to the Court/Tribunal to violate a mandatory statutory provision?

Contentions by Parties-

Appellant’s Arguments

  1. The appellants contended that any marriage dissolved by a decree of divorce on the ground that the other party after the solemnisation of the marriage, treated the petitioner with cruelty or has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.

Respondent’s Arguments

  1. Respondent argued before the court that a Writ Petition under Article 32 of the Constitution is maintainable for such a relief 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.

Judgment

The Apex Court’s bench comprising of Aftab Alam, B.S. Chauhan, JJ. Held the following:

  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 1955 Act”).
  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 2-12-2008. A petition for dissolution of marriage by consent being HMA No. 197 of 2009 dated 9-9-2009 was filed under Section 13-B (1) of the Act, 1955.

  1. The Family Court of Delhi vide order dated 25-11-2009 accepted the said HMA No. 197 of 2009 (titled as Poonam v. 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.
  2. This very Bench decided a Special Leave Petition (Civil) No. 2954/2010 (Manish Goel v. 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.
  3. 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 and Anr. v. Excise Commissioner, UP and Anr.: AIR 1963 SC 996; Supreme Court Bar Association v. Union of India and Anr.: AIR 1998 SC 1895 and E.S.P. Rajaram and Ors. v. Union of India and Ors. AIR 2001 SC 581.

Rule of Law-

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.

Conclusion

In this case counsel for the petitioner is not able to render any assistance, Court may decline to entertain the petition – If a factual/legal issue is not raised, court should not decide the same as its decision may be violative of principles of natural justice.

The petition has been filed without any sense of responsibility either by the parties or their counsel. The counsel was unable to explain as to how writ petition was maintainable – Such a practice is equivalent to not only disservice to the institution, but it also affects administration of justice.