Can A Single Bench of Supreme Court Pass A Decree Of Divorce By Mutual Consent? Conflicting SC Orders

Can a Single Bench of  the Supreme Court pass a decree of divorce by mutual consent?  A few judges, while sitting singly, have passed such divorce decrees, and some others, observing that they lack such a power, have referred the cases to Division benches.

Recently, a single bench of the Supreme Court invoked Article 142 of the Constitution to grant a decree of divorce by mutual consent. 

Justice JK Maheshwari ordered thus while disposing appeal against the Allahabad High Court order that dismissed a 'husband's' petition to quash an FIR under Sections 498-A, 354, 323, 377 and 506 I.P.C. and Section 3/4 of Dowry Prohibition Act, filed against him by his wife.

During the pendency of appeal, the parties had settled the matter. Recording the settlement agreement, the judge accepted their request to grant a decree of divorce by mutual consent.

Recently, another single bench of Justice AS Oka had observed that a single bench cannot pass a decree divorce by mutual consent.

The Supreme Court Rules 2013 were amended to stipulate the categories of matters which can be heard and disposed of finally by a Single Judge Bench. Order VI Rule 1, after the said amendment reads as follows:

Provided that the following categories of matters may be heard and disposed of finally by a Judge sitting singly nominated by the Chief Justice:

(i) Special leave petitions arising out of grant, dismissal or rejection of Bail Application or Anticipatory Bail Application in the matters filed against the order passed under section 437, section 438 or section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) involving the offences punishable with sentence up to seven years imprisonment;

(ii) Applications for transfer of cases under section 406 of the Code of Criminal Procedure, 1973 (2 of 1974);

(iii) Application of an urgent nature for transfer of cases under section 25 of the Code of Civil Procedure, 1908 (5 of 1908); (iv) Any other category of cases notified by the Chief Justice from time to time, which may be heard and disposed of finally by a Judge sitting singly nominated by him.

Justice Aniruddha Bose, in an order passed earlier this year, had also observed that an order of decree of dissolution of marriage by mutual consent cannot be granted by Single Judge and the same can be done only by Division Bench. While a Single Judge of the Court can exercise jurisdiction under Article 142 of the Constitution of India, this power or jurisdiction has to be confined to the four categories of cases referred to in the proviso to Order VI Rule (1) of the 2013 Rules only, or on subjects ancillary or directly relatable to them, the judge had observed.

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