IMPORTANT POINT
Exercise of powers under Article 142 of the Constitution for dissolution of marriage between consenting parties without referring them to the Family Court and the jurisdiction of such exercise in the facts of every case.

ORDER :

1. Heard the parties.

2. A perusal of order passed on 6th May, 2015 including signed order of that day shows that case of Mrs. Shilpa Sailesh (Transfer Petition (Civil) No. 1118/2014) stands finally decided but only for considering two larger questions formulated in paragraph 5 of the signed order, the matters have been kept pending. For convenience sake, paragraphs 4 to 7 of that order are extracted herein-below:

“4. Notwithstanding the above order passed by us, for the purpose of statistics the present transfer petitions shall remain pending as we are of the view that an issue of some importance needs to be addressed by the Court in view of the huge number of requests for exercise of power under Article 142 of the Constitution that has confronted this Court consequent to settlement arrived at by and between the husband and the wife to seek divorce by mutual consent.

5. The questions are formulated herein-below:

1. “What could be the broad parameters for exercise of powers under Article 142 of the Constitution to dissolve a marriage between the consenting parties without referring the parties to the Family Court to wait for the mandatory period prescribed under Section 13-B of the Hindu Marriage Act.

2. Whether the exercise of such jurisdiction under Article 142 should not be made at all or whether such exercise should be left to be determined in the facts of every case.”

6. To enable us to take an appropriate decision of the matter we seek the assistance of the following learned Senior Counsels:

(i) Mr. V. Giri

(ii) Mr. Dushyant Dave

(iii) Ms. Indira Jaising

(iv) Ms. Meenakshi Arora

7. A copy of the present order be furnished to the aforesaid learned Senior Counsels. The matters will be listed in the month of August, 2015.”

3. Written notes have been prepared by Mrs. Indira Jaising, Senior Advocate for the assistance of the Court. The same are taken on record with a request to the counsel to furnish a copy of the report to the other three counsels appointed as Amicus by the Court.

4. Written submissions on behalf of the Attorney General have also been received, in which, inter-alia, it has been highlighted that the two questions of law framed amount to substantial questions of law as to the interpretation of the Constitution and hence in view of Article 145(3) of the Constitution, the matter should be heard by a Constitution Bench of atleast five Judges.

5. In the notes, reliance has been placed upon the judgment of this Court in the case of Pradip Chandra Parija vs. Pramod Chandra Pattnaik, (2002) 1 SCC 1, rendered by a Bench of five Judges who have opined that in a situation when two Judge Bench is of the opinion that provisions of clause 3 of Article 145 are attracted, the Bench may refer the matter directly to the Constitution Bench.

6. In our view also, the two questions formulated earlier require a reference to Constitution Bench on account of clause 3 of Article 145 of the Constitution. It is noted that in the notes furnished on behalf of the Attorney General, in paragraph 5 two other questions of law have also been indicated which may require consideration by a Constitution Bench. It would be better to leave the matter to the discretion of the Constitution Bench itself whether it will be inclined to consider those two other questions of law or not.

7. Office is directed to furnish copies of the written submissions filed on behalf of the Attorney General to all the four counsels who have been requested to assist the court.

8. As indicated earlier the case of Mrs. Shilpa Sailesh stands substantially disposed of but the remaining matters being T.P. (Civil) Nos. 96 and 339 of 2014 require further consideration because decision of the Constitution Bench may take time. Counsels have submitted that in both these matters the spouses have filed application for dissolution of marriage by mutual consent but directly before this Court for consideration under Article 142 of the Constitution of India. Since a doubt has arisen whether this C