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Mansi Khatri vs Gaurav Khatri

Date of Judgement – 19 May, 2023

Bench – Sanjay Kishan Kaul, Ahsanuddin Amanullah, Prashant Kumar Mishra

Petitioner – Mansi Khatri

Respondent – Gaurav Khatri

Case No.- Transfer Petition (Civil) No. 1595 OF 2022

Facts of the case

In the above mentioned case both the parties were married on 12.12.16 and then separated on 29.10.22 without having any child. The divorce proceedings were initiated by the husband while Mansi Khatri’s father filed some criminal cases against her husband for the offences punishable under the section 498A, 323, 354 of the Indian Penal Code , 1860 and sections 3 and 4 of Dowry Prohibition Act, 1961. The petitioner has herself filed maintenance case No.749 of 2022 under the section 125 of the code of criminal procedure,1973 which is pending before the family court, Lucknow.

Both the parties wanted the divorce through the mutual consent and for that they were referred to the Supreme Court Mediation Center but the mediation remained unsuccessful because the permanent alimony concerned could not reach on a mutual amount despite being desirous of mutual consent divorce. The wife had asked Rs. 70,00,000 for the permanent alimony while the husband offered Rs. 25,00,000.

The court through the financial standings of both the parties decided Rs.35,00,000 as the permanent alimony. The court granted the decree of mutual consent divorce on the basis of Article 142 of The Indian Constitution and squashed all the pending cases against the husband . It was even held that, if the permanent alimony may not be given within the six months ; all the squashed criminal cases and maintenance cases will revive again. The Decree of Mutual Consent Divorce is also to be issued after payment of permanent alimony.

Issues Raised

  • To what extent the Supreme court of India can use Article 142 of The Indian Constitution ?
  • What is the criteria for deciding the irretrievable breakdown of marriage i.e., applicable in any case ?
  • By using Article 142, the Supreme Court questions the validity of the existing laws that govern the divorce ?

Contentions

Respondent’s Contentions

The Respondent had submitted that he was willing for the mutual consent divorce but nothing could have been done so far because the amount of permanent alimony hadn’t been decided yet. The amount he offered was Rs. 25,00,000.

Petitioner’s Contentions

She was willing for the mutual consent divorce but she asked for the Rs 35,00,000 as permanent alimony and even filed the case for maintenance in the court .

Rationale

  • To what extent the Supreme court of India can use Article 142 of The Indian Constitution ?

The supreme court of India can use the Article 142 to grant the divorce on the basis of irretrievable breakdown of marriage . In that case both the parties didn’t have to stay together for the cooling period i.e., 6 months which is necessary to take divorce by mutual consent as stated in the case Amardeep Singh vs Harveen Kaur , 2017 .

  • What is the criteria for deciding the irretrievable breakdown of marriage i.e., applicable in any case ?

The factors that should be considered by the court to conclude that it is a irretrievable breakdown of marriage are-

– the period of time the parties had cohabited after marriage

– when the parties had last cohabited

– the nature of allegations made by the parties against each other and their family members

– the orders passed in the legal proceedings from time to time and many more

  • By using Article 142, the Supreme Court questions the validity of the existing laws that govern the divorce ?

Article 142 is a powerful tool that empowers the courts to ensure justice is served. But it is crucial to understand that these powers don’t allow the courts to ignore the substantive rights of the parties involved in the case under consideration. This power cannot replace the existing law dealing with the issues involved in adjudication. Thus, despite its comprehensiveness, this inherent power cannot create something unique and contrary to the existing laws.

Defects of the Law

  • Critics argue that the wide scope of these powers can lead to allegations of arbitrariness and lack of precision.
  • It is also contended that the lack of a standard definition for “complete justice” gives the Court wide discretion, potentially leading to arbitrary exercise or misuse.
  • One taking advantage of his/ her own wrong is inapplicable when the divorce is granted under IBM.
  • The principle of the ‘parens patriaewhere the court acts as a parent and makes decisions for the welfare of the party. This can be justified in exercising its jurisdiction in the case of a child who is incapable of making a decision for himself but not for the mature women or men.

Inference

In this case, the parties approach the Supreme Court to grant the divorce by their mutual consent by using its jurisdiction and the power under Article 142 of the Indian Constitution. The main issue was with the permanent alimony amount that couldn’t be settled through the mediation . Therefore, the Supreme Court taking all the financial things in regard settled the permanent alimony amount to Rs. 35,00,000 that to be paid in stipulated time.

Khushi Singh

Dr. B.R Ambedkar National Law University, Sonepat