Single Bench Hearing Transfer Petitions Cannot Pass Mutual Consent Divorce Decree Invoking Article 142: Supreme Court

The Supreme Court observed that a single bench hearing Transfer petition cannot pass a decree divorce by mutual consent under Section under Section 13 B of the Hindu Marriage Act, 1955 read with Article 142 of the Constitution of India.

In a recent order, Justice Abhay S. Oka, referring to Supreme Court Rules 2013, said he could not pass a decree of divorce 'sitting singly'.

Before the single bench, the parties to a transfer petition submitted that in terms of the settlement arrived before the Mediator, they have complied with all the agreed terms and conditions.

Justice Oka, while considering their prayer to pass a decree of divorce, referred to Proviso to Rule 1 of Order VI of the Supreme Court Rules, as per which, the jurisdiction of a Judge sitting singly is confined to grant relief under Section 25 of the Code of Civil Procedure, 1908.

Therefore, the judge directed the registry to place the petition before the Chief Justice for necessary directions. Unless Hon'ble the Chief Justice exercises his powers under Clause (iv) of Proviso to Rule 1 of Order VI of the said Rules, I cannot pass a decree of divorce sitting singly, the judge said.

Last year, the Supreme Court Rules 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.

However, last month, Justice V. Ramasubramanian, sitting singly, disposed a transfer petition by passing a decree of dissolution of the marriage. Similar order was also passed by the single bench presided by Justice Krishna Murari.

Citation: LL 2021 SC 469
Case name: Neha @ Pooja Alizad Vs. Vaibhav Kumar @ Chetan Sancheti
Case no.| Date: T.P.(C) 83/2019 | 13 September 2021
Coram: Justice Abhay S. Oka

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