Allahabad High Court
Pankaj Kumar Pandey vs Chhipra Pandey on 2 May, 2023
Bench: Prakash Padia
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 5
Case :- MATTERS UNDER ARTICLE 227 No. - 3887 of 2023
Petitioner :- Pankaj Kumar Pandey
Respondent :- Chhipra Pandey
Counsel for Petitioner :- Ravi Prakash Pandey
Hon'ble Prakash Padia,J.
1. Counsel for the petitioner is permitted to make necessary corrections in the prayer clause during the course of the day.
2. The petitioner has preferred the present petition inter-alia with the following prayer:-
"(i) direct the Principal Judge, Family Court, Azamgarh to decide the Case No. 466 of 2022 (Pankaj Kumar Pandey vs. Chhipra Pandey) filed on 26.05.2022 under Section 13-B of the Hindu Marriage Act, 1955 pending before the Principal Judge, Family Court, Azamgarh."
3. It is argued that in the case filed by the present petitioner before the Family Court, Azamgarh, a joint application has been filed under the signatures of the present petitioner/husband along-with his wife stating therein that a mutual agreement has already been made between them, hence the suit be disposed of in terms of the aforesaid mutual agreement. The aforesaid application was filed by the parties on 26.05.2022, copy of which is appended as Annexure-4 to the present petition. It is argued that though the matter was listed on various dates but till date no final decision has been taken.
4. In the supplementary affidavit filed by the petitioner, a copy of the another application filed by him before the Family Court dated 26.04.2023 and the copy of the order passed by the Hon'ble Apex Court in the case of Amardeep Singh vs. Harveen Kaur reported in 2017 (8) SCC 746.
5. Today when the matter is taken up, counsel for the petitioner also placed before this Court the 5 judges judgment of the Hon'ble Apex Court passed in the case of Shilpa Sailesh vs. Varun Sreenivasan in Transfer Petition (Civil) No. 1118 of 2014 along with connected petitions decided on 01.05.2023. He placed reliance upon a conclusion part of the aforesaid judgment which reads as follows:-
"Conclusion.
42. In view of the aforesaid discussion, we decide this reference by answering the questions framed in the following manner:
(i) The scope and ambit of power and jurisdiction of this Court under Article 142(1) of the Constitution of India.
This question as to the power and jurisdiction of this Court under Article 142(1) of the Constitution of India is answered in terms of paragraphs 8 to 13, inter alia, holding that this Court can depart from the procedure as well as the substantive laws, as long as the decision is exercised based on considerations of fundamental general and specific public policy. While deciding whether to exercise discretion, this Court must consider the substantive provisions as enacted and not ignore the same, albeit this Court acts as a problem solver by balancing out equities between the conflicting claims. This power is to be exercised in a 'cause or matter'.
(ii) In view of, and depending upon the findings of this bench on the first question, whether this Court, while hearing a transfer petition, or in any other proceedings, can exercise power under Article 142(1) of the Constitution, in view of the settlement between the parties, and grant a decree of divorce by mutual consent dispensing with the period and the procedure prescribed under Section 13-B of the Hindu Marriage Act, and also quash and dispose of other/connected proceedings under the Domestic Violence Act, Section 125 of the Cr.P.C., or criminal prosecution primarily under Section 498-A and other provisions of the I.P.C. If the answer to this question is in the affirmative, in which cases and under what circumstances should this Court exercise jurisdiction under Article 142 of the Constitution of India is an ancillary issue to be decided.
In view of our findings on the first question, this question has to be answered in the affirmative, inter alia, holding that this Court, in view of settlement between the parties, has the discretion to dissolve the marriage by passing a decree of divorce by mutual consent, without being bound by the procedural requirement to move the second motion. This power should be exercised with care and caution, keeping in mind the factors stated in Amardeep Singh (supra) and Amit Kumar (supra). This Court can also, in exercise of power under Article 142(1) of the Constitution of India, quash and set aside other proceedings and orders, including criminal proceedings.
(iii) Whether this Court can grant divorce in exercise of power under Article 142(1) of the Constitution of India when there is complete and irretrievable breakdown of marriage in spite of the other spouses opposing the prayer?
This question is also answered in the affirmative, inter alia, holding that this Court, in exercise of power under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be exercised to do 'complete justice' to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. The Court, as a court of equity, is required to also balance the circumstances and the background in which the party opposing the dissolution is placed.
43. For the foregoing reasons, Transfer Petition (Civil) No. 1118 of 2014, Transter Petition (Criminal) No. 382 of 2014, Transfer Petition (Criminal) No. 468 of 2014, and Transfer Petition (Civil) Nos. 1481-1482 of 2014 are disposed of, as vide order dated 06.05.2015, a division bench of this Court has already dissolved the marriage between the parties by invoking Article 142(1) of the Constitution of India."
6. In this view of the matter, it is argued that the court below be directed to pass appropriate orders in the matter, expeditiously.
7. Heard counsel for the petitioner and perused the record.
8. After going through the records as well as law cited by the counsel for the petitioner, the Court is more satisfied that this is a fit case in which the direction is issued to the Family Court before whom the aforesaid matter is pending to pass appropriate orders on the Joint Application filed by the parties, most expeditiously and positively within a period of three weeks from today.
9. The Registrar Compliance is directed to communicate the copy of this order to the Principal Judge, Family Court, Azamgarh within three days.
Order Date :- 2.5.2023
Swati
