Supreme Court Single Judge Refers To Larger Bench Plea To Annul Marriage On Mutual Consent Invoking Article 142

The issue whether a single judge of the Supreme Court can exercise powers under Article 142 of the Constitution to pass a decree of divorce on the basis of mutual consent has been referred to a larger bench.

On February 1, a single bench of Justice Krishna Murari noted that the issue has been referred to a larger bench. "The issue as to whether a Judge sitting singly can pass an order granting decree of divorce to the parties on the basis of the Settlement Agreement in exercise of powers conferred under Article 142 of the Constitution of India has been referred for adjudication by a larger Bench", Justice Murari noted.

The reference was made by Justice Aniruddha Bose in Transfer Petition (Civil) No. 908/2019 on March 1, 2021. Justice Bose observed that annulment of marriage will not come under any of the four categories of the cases which can be handled by a single bench as per Order VI Rule (1) of Supreme Court Rules 2013.

Justice Bose made the following observations while referring the issue to a larger bench :

"I am of the view that while sitting singly this Court does not have the jurisdiction to take a decision on that plea made in the joint application. One of the preconditions for exercise of jurisdiction under Article 142 of the Constitution of India in passing order or decree for doing complete justice is that the cause or the matter in which the Court intends to invoke the provisions thereof must be pending before it. Annulment of marriage cannot be linked to any cause or matter pending before this Court in the facts of the given case. The transfer petition arose out of matrimonial dispute between the parties, but the expression 'cause or matter pending before it' cannot be stretched to cover all disputes originating from such matrimonial problem that can be resolved by this Court, sitting singly, while hearing a transfer petition.

I am not expressing any doubt on the jurisdiction of this Court under Article 142 of the Constitution of India to pass decree to dissolve a marriage on consent of the parties without adhering to the timeline and other procedural formalities stipulated in Section 13B of the 1955 Act. But I do not think that while sitting singly, such a decree can be passed having regard to the provisions of the Supreme Court Rules, 2013".

It may be noted that on September 17, 2021, a single bench of Justice Abhay S Oka passed an order holding that a single judge cannot annul marriage exercising powers under Article 142.  The order did not mention the reference order passed by Justice Bose on the issue.

Conflicting orders

However,  in some cases, single judges have passed orders dissolving marriage by invoking Article 142 powers. For example, refer here, here and here.

In the latest order passed by Justice Krishna Murari, the matter has been placed before the Chief Justice of India for nominating an appropriate bench to decide it.

"Keeping in view the facts and circumstances and the view taken by the learned Single Judge in Transfer Petition (Civil)No.908 of 2019 by order dated 1st March, 2021, let this matter be placed before the Hon'ble Chief Justice of India for nominating an appropriate Bench for disposal of the matter", Justice Murari observed.

Case Title : Anamika Varun Rathore versus Varun Pratap Singh Rathore

Citation : 2022 LiveLaw (SC) 125
Click here to read/download the order