High Court Is Appellate Authority U/S 19 Family Courts Act, Doesn't Have Wide Powers To Dissolve Marriage Under Article 142: Allahabad HC

While dismissing a divorce appeal, the Allahabad High Court has held that it does not possess power similar to that of the Supreme Court under Article 142 for dissolving marriages as it is only a court of appeal in terms of Section 19 of the Family Court Act, 1984.

Article 142 of the Constitution of India empowers the Supreme Court to pass any decree/order which it may deem necessary “for doing complete justice” in any pending case before it. Section 19 of the Family Court Act, 1984 provides for appeals against the order of the Family Court to the High Court, provided the order is not an interlocutory order.

Marriage between the parties was solemnized on 23.05.1980. They separated in 1992, where criminal proceedings had also been initiated by the respondent-wife on alleged grounds of dowry and cruelty. Subsequently, a settlement was reached between the parties to revive their marriage and the respondent-wife also agreed to withdraw the criminal charges instituted by her. The appellant-husband was acquitted from the charge of demand of dowry on 26.06.1995 but again on 03.07.1995, the respondent was turned away from her matrimonial home and within two weeks on 29.07.1995, the proceedings for divorce were initiated by the husband.

The Court held that desertion could not be attributed to the wife when she had withdrawn criminal cases at the promise of revival of matrimonial relationship, but was turned away from the matrimonial home.

Further, it was held that the cruelty alleged by the appellant was prior to the settlement reached between the two in 1994. The Court observed that since the parties had cohabited for a very limited time since, there would be no reason to consider any additional cruelty by the respondent-wife after the settlement had been signed by the parties.

“As to the acts of cruelty alleged prior to 1992, those have to be treated to have been specifically condoned or given up by the appellant upon his entering into a written settlement with the respondent to revive their matrimonial relationship.”

Holding that cruelty and desertion were not proved by the appellant-husband, the Court held that it could not dissolve the marriage between the parties on basis of the reliance placed by the appellant on the decision of the Apex Court in Prakshchandra Joshi v. Kuntal Prakashchandra Joshi @ Kuntal Visanji Shah where marriage between the parties was dissolved in exercise of jurisdiction under Article 142 of the Constitution of India. It held that such a power did not exist with the High Court in its jurisdiction as an Appellate Court under the Family Court Act, 1984.

“There can be no doubt that such a power does not exist to be exercised by this Court. At present, we remain an Appeal Court in terms of Section 19 of the Family Court Act, 1984,” held the bench comprising of Justice Saumitra Dayal Singh and Justice Donadi Ramesh.

Accordingly, the appeal was dismissed.

Case Title: Sarvesh Kumar Sharma v. Smt. Sarvesh Kumari Sharma [FIRST APPEAL No. - 715 of 2004]

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