1. Marriage under Special Marriage Act, 1954 — Petition for annulment — Transfer petition — Settlement reached through mediation. (Para 1 , 2 , 3 )
Back
Next 
2021 Supreme(SC) 397
SUPREME COURT OF INDIA
DINESH MAHESHWARI, ANIRUDDHA BOSE, JJ.
ANUSHA SHRIVASTAVA - PETITIONER
VERSUS
VIKASH NIGAM - RESPONDENT
TRANSFER PETITION (C) NO. 2072 OF 2018
Decided On : 21-05-2021
Important Points
The Supreme Court, exercising its extraordinary jurisdiction under Article 142 of the Constitution of India, can grant a decree of divorce by mutual consent based on a mediated settlement agreement, waiving the statutory waiting period to ensure the amicable and final resolution of matrimonial disputes.
Subject
Family Law - Divorce
Act Referred
Headnote
Code of Civil Procedure, 1908 - Section 25 - Supreme Court Rules, 2013 - Order VI Rule 1 - Special Marriage Act, 1954 – Section 24(1)(i), 25(i) and 25(iii) - Settlement Agreement - Annulment of marriage - Divorce by mutual consent - Petition seeking transfer of original case - Respondent-husband filed a petition for annulment of marriage under Sections 25(i) and 25(iii) and for declaring marriage void under Section 24(1)(i) of Act of 1954 before Principal District Judge, Family Court - Petition so filed by respondent-husband, was taken up for consideration and petitioner-wife was served with notice - Court are satisfied that dispute of parties stands amicably resolved with Settlement Agreement now filed before us and there appears no reason to decline relief as sought for by parties in this agreement. Looking to time that has elapsed since after parties entered into first agreement, whose essential terms are retained by parties and rather they have also partly acted upon same, it appears just and proper to grant a decree of divorce by mutual consent to parties in terms of their agreement while waving any requirement of waiting period for parties - Transfer Petition disposed of.
Legal Category Hierarchy
Advocates Appeared:
For the Petitioner: Mr. Sameer Shrivastava, AOR Ms. Priya Kanwat, Adv.
For the Respondent: Mr. Gaurav Pathak, Adv. Mr. Virag Gupta, Adv. Ms. Archana Pathak Dave, AOR
For the Petitioner: Mr. Sameer Shrivastava, AOR Ms. Priya Kanwat, Adv.
For the Respondent: Mr. Gaurav Pathak, Adv. Mr. Virag Gupta, Adv. Ms. Archana Pathak Dave, AOR
Table of Contents
2. Parties initially sought annulment and declaration of marriage as null and void, later amending their request to seek divorce by mutual consent. (Para 4 , 7 )
3. A Single Judge lacks jurisdiction to grant a decree for annulment of marriage under Article 142, requiring a Bench of at least two Judges. (Para 5 )
4. Jurisdiction to grant a decree for annulment of marriage under Article 142 of the Constitution requires a Bench of at least two Judges. (Para 5 )
5. Decree of divorce by mutual consent granted, waiting period waived, and pending annulment petition disposed of. (Para 8 )
6. Does a Single Judge of the Supreme Court have the jurisdiction to grant a decree for the annulment of a marriage under Article 142 of the Constitution?
No. The jurisdiction of a Single Judge under Article 142 is confined to specific categories of cases under the Supreme Court Rules, 2013. Annulment of marriage does not fall within those categories and requires a Bench of at least two Judges. (Para 5 )
7. What is the legal distinction between seeking an annulment of marriage and a divorce by mutual consent in terms of judicial approach?
Seeking a decree of annulment or declaring a marriage null and void under Sections 24 and 25 of the Special Marriage Act, 1954, requires different steps and a different legal approach than seeking a divorce by mutual consent under Section 28. (Para 7 )
8. Can the Supreme Court waive the statutory waiting period for a decree of divorce by mutual consent?
Yes, the court may grant a decree of divorce by mutual consent and waive the requirement of a waiting period if it appears just and proper, particularly when parties have already acted upon a settlement agreement. (Para 8 )
ORDER :
1. The marriage of the parties to this petition was solemnised at Bhopal (Madhya Pradesh) under the Special Marriage Act, 1954 (‘the Act of 1954’) on 23.03.2018. It is not in dispute that the parties had lastly lived together as husband and wife at Gurugram (Haryana).
2. On 29.09.2018, the respondent-husband filed a petition for annulment of marriage under Sections 25(i) and 25(iii) and for declaring the marriage void under Section 24(1)(i) of the Act of 1954 before the Principal District Judge, Family Court, Gurugram (Haryana). The petition so filed by the respondent-husband, being HMA No. 1114 of 2018, was taken up for consideration and the petitioner-wife was served with the notice on 08.11.2018. Thereafter, the petitioner-wife filed the present transfer petition seeking transfer of the original case pending before the Principal District Judge, Family Court, Gurugram (Haryana) to the Family Court, Bhopal (Madhya Pradesh). In this petition, notices were issued 13.12.2018 and further proceedings in the said original petition were ordered to remain stayed.
3. After appearance of the parties, when the matter was taken up for consideration on 15.06.2020, the Court found it just and proper to refer the parties to Supreme Court Mediation Centre to explore the possibility of mediated settlement. Thereafter, the Mediation Centre sent its report dated 21.01.2021 pointing out, inter alia, that the parties have arrived at a settlement and an agreement to that effect was executed on 02.01.2021.
4. Thereafter, a joint application bearing No. 1424 of 2021 came to be filed by the parties with the prayer that their marriage be annulled and be declared null and void in terms of Settlement Agreement dated 02.01.2021, under Article 142 of the Constitution of India.
5. On 01.03.2021, one of us (Aniruddha Bose, J.), after having heard the parties, took the view that power and jurisdiction of the Single Judge to deal with the transfer petition under Section 25 of the Code of Civil Procedure was derived from the proviso to Order VI Rule 1 of the Supreme Court Rules, 2013 (‘the Rules of 2013’) but jurisdiction to pass a decree for annulment of the marriage was not vested in a Single Judge of this Court. It was also observed that a Single Judge could exercise jurisdiction under Article 142 of the Constitution of India confined to four categories of cases referred to in the proviso to Order VI Rule 1; and also on the subject which could be directly relatable or ancillary to those four categories of cases but, annulment of marriage was not falling within those four categories. It was, thus, opined that the joint application ought to be dealt with by a Bench comprising of at least two Judges of this Court because as per Order VI Rule 1 of the Rules of
2013, every cause, appeal or matter is to be heard by a Bench consisting of not less than two Judges nominated by the Chief Justice of India. The matter was, accordingly, placed before Hon’ble the Chief Justice of India for appropriate directions.
6. Thereafter, the matter was placed before a Bench of two Judges, to which one of us (Dinesh Maheshwari, J.) was a party and on 05.04.2021, the said Bench observed, with reference to the prayer made, that the respondent was free to deposit the amount of Rs. 17,00,000/-(Seventeen lakhs) in the registry of this Court within two weeks. As per office report, the said amount has been deposited by the respondent-husband on 13.04.2021.
7. On the matter being taken up on 18.05.2021, the learned counsel for the parties referred to the Settlement Agreements dated 02.01.2021 and made a request for passing appropriate orders in terms thereof. However, after having examined the Settlement Agreement, we pointed out to the parties that they were not seeking decree of divorce by mutual consent but were rather seeking annulment of marriage and declaring marriage null and void in terms of Sections 24(1)(i), 25(i) and 25(iii) of the Act of 1954; and passing of such a decree
