C/SCA/330/2022 JUDGMENT DATED: 19/01/2022
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 330 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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SUJAL JAYANTIBHAI MAYATRA
Versus
NA
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Appearance:
MAHAVIR M GADHVI(8025) for the Petitioner(s) No. 1,2
MR KK TRIVEDI(934) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1
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CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 19/01/2022
ORAL JUDGMENT
1. The Petitioners have preferred this Petition under Articles 14, 226 and
227 of the Constitution of India challenging the order passed below Application
(Exh.10) in HMP No. 2757 of 2021 dated 4.1.2022, whereby the learned
Principal Judge, Family Court, Ahmedabad has dismissed the Exh.10
Application, which is filed for the prayer to waive the cooling period of 6
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months as there are no chances of reunion between the parties.
2. Heard learned Advocate for the Petitioners.
3. Learned Advocate for the Petitioners has submitted that the marriage
between the Petitioners was solemnized on 8.12.2020 as per Hindu rites and
customs at Ahmedabad but due to differences arisen between the Petitioners, the
Petitioners are living separately since December 2020 and all efforts for
reconciliation were in vain. They have therefore, with mutual consent, filed
Hindu Marriage Petition No. 2757 of 2021 before the Family Court at
Ahmedabad. Both the Petitioners have entered into a Memorandum of
Understanding (‘MoU’) on 18.10.2021 for mutual divorce and that as per the
said MoU, the Petitioners have agreed to withdraw all the criminal cases filed
against each other. The learned Family Judge has sent the Petitioners for
mediation, however the same failed and the report dated 31.12.2021 to that
effect was placed before the learned Family Court Judge, Ahmedabad. Learned
Advocate for the Petitioners has submitted the Application Exh.10 filed by the
Petitioners for waiving of cooling period of six months came to be rejected by
the learned Family Judge and therefore the present Petitioners are before this
Hon’ble Court challenging the same.
4. Learned Advocate for the Petitioners has submitted that the learned
Family Court Judge has failed to exercise the jurisdiction in favour of the
Petitioners vested in it under the provisions of the Hindu Marriage Act, 1955 by
misinterpreting the law laid down by the Hon’ble Supreme Court in the case of
Amardeep Singh v. Harveen Kaur, reported in (2017) 8 SCC 746 as well as
in the case of Amit Kumar v. Suman Beniwal, reported in 2021f SCC Online
1270 (Civil Appeal No. 7650 of 2021). It is further submitted that the learned
Family Court Judge has erred in not appreciating that the provisions of Section
13B(2) are discretionary and not mandatory. It is submitted that the learned
Family Court Judge has erred in misconstruing the judgment of the Hon’ble
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Supreme Court in the case of Amardeep Singh v. Harveen Kaur (supra) and
proceeded on the basis that the conditions specified in paragraph 19 of the said
judgment are mandatory and that the statutory waiting period of six months
under Section 13B(2) can only be waived if all the conditions therein are
fulfilled, in particular, the condition of separation of at least one had half year
before making the motion of decree of divorce. It is further submitted by the
learned Advocate for the Petitioners that the learned Family Court Judge has
failed to appreciate that the Hon’ble Supreme Court has laid down the principles
for granting waiver of time of cooling period under the provisions of Section
13B(2) of the Act for all the cases. The interpretation of provisions of Section
13B(2) of the Act is not done under Article 142 of the Constitution of India and
only decree of divorce was passed under the provisions of Article 142 of the
Constitution of India due to passage of time and to prevent agony of the litigants
– Husband and wife. Learned Advocate for the Petitioners has submitted that
the marriage between the Petitioners is irretrievably broken down due to
irreconcilable differences between them and that all the efforts for saving the
marriage have failed, including mediation and that the Petitioners are not willing
to live together as husband and wife even after more than 12 months of
separation and therefore is no possibility of resuming the matrimonial
relationship and that too when the Petitioners have genuinely settled all their
differences and have withdrawn all the pending cases and complaints against
each other and also when the Petitioners have settled all the issues amicably
including the question of permanent alimony.
5. This Court has considered the arguments advanced by the learned
Advocate for the Petitioner and has gone through the order passed by the
learned Judge, Family Court, Ahmedabad.
6. In the opinion of this Court, the learned Judge, Family Court,
Ahmedabad has rightly referred to the judgment of the Hon’ble Supreme in the
case of Amardeep Singh v. Harveen Kaur, reported in (2017) 8 SCC 746 as
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well as in the case of Amit Kumar v. Suman Beniwal, reported in 2021f SCC
Online 1270 (Civil Appeal No. 7650 of 2021). Therefore therefore no error in
the order passed by the learned Judge and therefore there is no requirement to
interfere in the order passed by the learned Judge, Family Court, Ahmeabad.
7. At the outset, it would not out of place here to mention that this petition
is filed under Article 227 of the Constitution of India and exercise of powers
under such Article is imperatively spare. The Court may refer to the decision
of the Apex Court in Shalini Shyam Shetty and Another Vs. Rajendra
Shankar Patil, (2010) 8 SCC 329, wherein the Apex Court has considered in
detail the Scope of interference by this Court that, Article 227 can be invoked
by the High Court Suo motu as a custodian of justice. An improper and a
frequent exercise of this power would be counterproductive and will divest this
extraordinary power of its strength and vitality. The power is discretionary and
has to be exercised very sparingly on equitable principle. The observations of
the Apex Court read as under:
“Articles 226 and 227 stand on substantially different footing. As noted
above, prior to the Constitution, the Chartered High Courts as also the
Judicial Committee of the Privy Council could issue prerogative writs
in exercise of their original jurisdiction. [See 1986 (suppl.) SCC 401 at
page 469)].
58. However, after the Constitution every High Court has
been conferred with the power to issue writs under Article 226
and these are original proceeding. [State of U.P . and others vs.
Dr. Vijay Anand Mahara j - AIR 1963 SC 946, page 951].
59. The jurisdiction under Article 227 on the other hand is not
original nor is it appellate. This jurisdiction of superintendence
under Article 227 is for both administrative and judicial
superintendence. Therefore, the powers conferred under Articles
226 and 227 are separate and distinct and operate in different
fields.
60. Another distinction between these two jurisdictions is that
under Article 226, High Court normally annuls or quashes an
order or proceeding but in exercise of its jurisdiction under
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Article 227, the High Court, apart from annulling the
proceeding, can also substitute the impugned order by the order
which the inferior tribunal should have made. {See Surya Dev
Rai (supra), para 25 page 690 and also the decision of the
Constitution Bench of this Court in Hari Vishnu Kamath vs.
Ahmad Ishaque and others - [AIR 1955 SC 233, para 20 page
243]}.
61. Jurisdiction under Article 226 normally is exercised
where a party is affected but power under Article 227 can be
exercised by the High Court suo motu as a custodian of justice.
In fact, the power under Article 226 is exercised in favour of
persons or citizens for vindication of their fundamental rights or
other statutory rights. Jurisdiction under Article 227 is exercised
by the High Court for vindication of its position as the highest
judicial authority in the State. In certain cases where there is
infringement of fundamental right, the relief under Article 226 of
the Constitution can be claimed ex-debito justicia or as a matter
of right. But in cases where the High Court exercises its
jurisdiction under Article 227, such exercise is entirely
discretionary and no person can claim it as a matter of right.
From an order of a Single Judge passed under Article 226, a
Letters Patent Appeal or an intra Court Appeal is maintainable.
But no such appeal is maintainable from an order passed by a
Single Judge of a High Court in exercise of power under Article
227. In almost all High Courts, rules have been framed for
regulating the exercise of jurisdiction under Article 226. No such
rule appears to have been framed for exercise of High Court's
power under Article 227 possibly to keep such exercise entirely
in the domain of the discretion of High Court.
62. On an analysis of the aforesaid decisions of this Court, the
following principles on the exercise of High Court's jurisdiction
under Article 227 of the Constitution may be formulated:
(a) A petition under Article 226 of the Constitution is
different from a petition under Article 227. The mode of
exercise of power by High Court under these two Articles
is also different.
(b) In any event, a petition under Article 227 cannot be
called a writ petition. The history of the conferment of
writ jurisdiction on High Courts is substantially different
from the history of conferment of the power of
Superintendence on the High Courts under Article 227
and have been discussed above.
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(c) High Courts cannot, on the drop of a hat, in
exercise of its power of superintendence under Article
227 of the Constitution, interfere with the orders of
tribunals or Courts inferior to it. Nor can it, in exercise of
this power, act as a Court of appeal over the orders of
Court or tribunal subordinate to it. In cases where an
alternative statutory mode of redressal has been
provided, that would also operate as a restrain on the
exercise of this power by the High Court.
(d) The parameters of interference by High Courts in
exercise of its power of superintendence have been
repeatedly laid down by this Court. In this regard the
High Court must be guided by the principles laid down by
the Constitution Bench of this Court in Waryam Singh
(supra) and the principles in Waryam Singh (supra) have
been repeatedly followed by subsequent Constitution
Benches and various other decisions of this Court.
(e) According to the ratio in Waryam Singh (supra),
followed in subsequent cases, the High Court in exercise
of its jurisdiction of superintendence can interfere in
order only to keep the tribunals and Courts subordinate
to it, `within the bounds of their authority'.
(f) In order to ensure that law is followed by such
tribunals and Courts by exercising jurisdiction which is
vested in them and by not declining to exercise the
jurisdiction which is vested in them.
(g) Apart from the situations pointed in (e) and (f),
High Court can interfere in exercise of its power of
superintendence when there has been a patent perversity
in the orders of tribunals and Courts subordinate to it or
where there has been a gross and manifest failure of
justice or the basic principles of natural justice have been
flouted.
(h) In exercise of its power of superintendence High
Court cannot interfere to correct mere errors of law or
fact or just because another view than the one taken by
the tribunals or Courts subordinate to it, is a possible
view. In other words the jurisdiction has to be very
sparingly exercised.
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(i) High Court's power of superintendence under
Article 227 cannot be curtailed by any statute. It has been
declared a part of the basic structure of the Constitution
by the Constitution Bench of this Court in the case of
L.Chandra Kumar vs. Union of India & others, reported
in (1997) 3 SCC 261 and therefore abridgement by a
Constitutional amendment is also very doubtful.
(j) It may be true that a statutory amendment of a
rather cognate provision, like Section 115 of the Civil
Procedure Code by the Civil Procedure Code
(Amendment) Act, 1999 does not and cannot cut down the
ambit of High Court's power under Article 227. At the
same time, it must be remembered that such statutory
amendment does not correspondingly expand the High
Court's jurisdiction of superintendence under Article 227.
(k) The power is discretionary and has to be exercised
on equitable principle. In an appropriate case, the power
can be exercised suo motu.
(l) On a proper appreciation of the wide and
unfettered power of the High Court under Article 227, it
transpires that the main object of this Article is to keep
strict administrative and judicial control by the High
Court on the administration of justice within its territory.
(m) The object of superintendence, both administrative
and judicial, is to maintain efficiency, smooth and orderly
functioning of the entire machinery of justice in such a
way as it does not bring it into any disrepute. The power
of interference under this Article is to be kept to the
minimum to ensure that the wheel of justice does not
come to a halt and the fountain of justice remains pure
and unpolluted in order to maintain public confidence in
the functioning of the tribunals and Courts subordinate to
High Court.
(n) This reserve and exceptional power of judicial
intervention is not to be exercised just for grant of relief
in individual cases but should be directed for promotion
of public confidence in the administration of justice in the
larger public interest whereas Article 226 is meant for
protection of individual grievance. Therefore, the power
under Article 227 may be unfettered but its exercise is
subject to high degree of judicial discipline pointed out
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above.
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(o) An improper and a frequent exercise of this power
will be counter-productive and will divest this
extraordinary power of its strength and vitality.”
8. The learned Judge, Family Court, Ahmedbad has rightly observed that,
admittedly, the marriage of Petitioners was solemnized on 8.12.2020 and they
hardly lived for 12 days and separated on 20.12.2020 and since then they have
no marital relation. The learned Judge has also rightly considered the
observations made by the Hon’ble Apex Court in case of Amit Kumar v.
Suman Beniwal (supra) by observing that the said judgment is not helpful to
the Petitioners as the Hon’ble Apex Court has exercised its power under Article
142 of Constitution of India and wiaved of statutory period of six months under
Section 13(B)(2) of the Hindu Marriage Act and the leanred Principal Judge,
Family Court Ahmedabad has no power to exercise such power under Article
142 of Constitution of India. In paragraph 27 and 30, the Hon’ble Apex Court
has observed as under:
“27. For exercise of the discretion to waive the statutory waiting period
of six months for moving the motion for divorce under Section 13B (2) of
the Hindu Marriage Act, the Court would consider the following
amongst other factors:
(i) the length of time for which the parties had been married;
(ii) how long the parties had stayed together as husband and wife;
(iii) the length of time the parties had been staying apart;
(iv) the length of time for which the litigation had been pending;
(v) whether there were any other proceedings between the parties;
(vi) whether there was any possibility of reconciliation;
(vii) whether there were any children born out of the wedlock;
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parties had freely, of their own accord, without any
coercion or pressure, arrived at a genuine settlement which took
care of alimony, if any, maintenance and custody of children, etc.
30. In the facts and circumstances of this case, this Court deems it
appropriate to exercise its power under Article 142 of the Constitution of
India, to grant the Appellant and the Respondent a decree of divorce by
mutual consent under Section 13B of the Hindu Marriage Act, 1955,
waiving the statutory waiting period of six months under Section 13(B)
(2) of the said Act.”
9. In the aforesaid factual scenario, this Court is in complete agreement
with the findings recorded by the learned Principal Judge, Family Court,
Ahmedabad and there is no need to interfere with the order passed by it below
Application Exh.10 in Family Suit No. 2757 of 2021 dated 4.1.2.22. The
Petition therefore deserves to be dismissed and accordingly stands dismissed in
limine.
(A. C. JOSHI,J)
for orders / J.N.W
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