Sumit Tanwar  INSC 199 (22 March 2010)
SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 86
OF 2010 Smt. Poonam ..... Petitioner Versus Sumit Tanwar ..... Respondent ORD
ER Dr. B.S. CHAUHAN, J.
This Writ Petition has been filed under Article 32 of the
Constitution of India for awarding the decree of divorce, annulling the
marriage of the parties herein; and/or issue directions waiving the statutory
period of six months provided under Section 13-B(2) of the Hindu Marriage Act,
1955 (hereinafter referred to as, "The Act, 1955").
The facts and circumstances giving rise to the present case are
that the petitioner and the respondent got married on 30.11.2008 according to
Hindu rites in Delhi. They separated just after two days of their marriage i.e.
on 02.12.2008. A petition for dissolution of marriage by consent being HMA No.
197/09 dated 09.09.2009 was filed under Section 13-B(1) of The Act, 1955. The
Family Court of Delhi, vide order dated 25.11.2009 accepted the said HMA No. "7.
In view of Section 13(B)(2) of the Hindu Marriage Act, the marriage between the
parties cannot be dissolved straightaway in the present case. As per the
statutory requirement, parties are advised to make further efforts for
reconciliation in order to save their marriage. In case they are unable to do
so, the parties may come up with the petition of second motion under Section
13-B(2) of the Hindu
Marriage Act as per law.
present petition under Section 13-B(1) of the Hindu Marriage Act is hereby
allowed and stands disposed of..........".
Being aggrieved by the order of the Family Court, the present Writ
Petition has been filed. The matter came up for preliminary hearing on
19.03.2010. Mr. A., an proxy counsel, was not able to explain as under what
circumstances, a Writ Petition under Article 32 of the Constitution is
maintainable for such a relief and as to whether the Court has the power to issue
a writ to the Court/Tribunal to violate a mandatory statutory provision. The
learned counsel was also not 2 able to explain under what circumstances a writ
petition lies; who is amenable to writ jurisdiction; and which are the
necessary parties in a writ petition? The matter was passed over and the proxy
counsel was asked to come along with Mr. B., Advocate-on-Record, who had signed
and filed the petition. In the second round when the matter was taken up,
another proxy counsel appeared and introduced himself as brother of Mr. B.,
Advocate-on-Record. The second proxy counsel also expressed his inability to
render any assistance to the Court on any legal issue. Being faced with an
inordinate and unfortunate situation that the matter had been filed in the Apex
Court of the Country and the appearing counsel was not able to render any
assistance, the matter was adjourned for Monday i.e. for 22.03.2010 and the
learned Advocate-on-Record Mr. B. was requested to appear in the Court.
Mr. B. learned Advocate-on-Record appeared in Court today and
could not furnish any explanation whatsoever to defend the petition, nor he
could explain how this petition is maintainable.
he tendered absolute and unconditional apology and 3 assured that he will not
lend his name merely for filing the petition by other counsel in future.
This very Bench decided a Special Leave Petition (Civil) No. dated
05.02.2010 observing that this Court, in exercise of its powers under Article
142 of the Constitution, generally should not issue any direction to waive the
statutory requirement. The Courts are meant to enforce the law and therefore,
are not expected to issue a direction in contravention of law or to direct the
statutory authority to act in contravention of law. While deciding the said
case, reliance has been placed upon a large number of Judgments of this Court
including Constitution Bench Judgments of this Court viz. Prem Chand Garg &
Supreme Court Bar Association v. Union of India & Anr. AIR 1998 SC 1895 and
E.S.P. Rajaram & Ors. v. Union of India & Ors. AIR 2001 SC 581.
In the said case, a similar relief was claimed, however, it was
rejected observing that statutory period of six months for filing a 4 second
petition under Section 13-B(2) of The Act, 1955 has been prescribed for
providing an opportunity to the parties to reconcile and withdraw the petition
for dissolution and as it was not a case where there has been any obstruction
to the stream of justice nor there had been injustice to the parties, which was
required to be undone, this Court refused to grant the relief under Article 136
of the Constitution of India.
The citizens are entitled to appropriate relief under the
provisions of Article 32 of the Constitution, provided it is shown to the
satisfaction of the Court that the Fundamental Right of the petitioner AIR 1961
SC 1457). This Court has a constitutional duty to protect Union of India AIR
2006 SC 1325).
The distinction in a Writ Petition under Article 226 and Article
32 of the Constitution is that the remedy under Article 32 is available only
for enforcement of the Fundamental Rights, while under Article 226 of the
Constitution, a Writ Court can grant relief for any other 5 Union of India
& Ors. AIR 1981 SC 344).
it is found that injury caused to the writ petitioner alleging violation of
Fundamental Right is too indirect or remote, the discretionary writ
jurisdiction may not be exercised as held by this 1361.
More so, a writ lies only against a person if it is a statutory
body or performs a public function or discharges a public or a statutory duty,
or a "State" within the meaning of Article 12 of the Constitution.
Karamchari Sanstha AIR 2009 SC 2249).
It is settled legal proposition that the remedy of a person
aggrieved by the decision of the competent judicial Tribunal is to 6 approach
for redress a superior Tribunal, if there is any, and that order cannot be
circumvented by resorting to an application for a writ under Article 32 of the
Constitution. Relief under Article 32 can be for enforcing a right conferred by
Part III of the Constitution and only on the proof of infringement thereof. If
by adjudication by a Court of competent jurisdiction, the right claimed has
been negatived, a petition under Article 32 of the Constitution is not
maintainable. It is not generally assumed that a judicial decision pronounced
by a Court may violate the Fundamental Right of a party. Judicial orders passed
by the Court in or in relation to proceeding pending before it are not amenable
to be corrected by issuing a writ under Article 32 of the Constitution. (Vide
Sahibzada Saiyed Muhammed Amirabbas Uttar Pradesh & Anr. AIR 1962 SC 1621;
and Naresh Shridhar
In the instant case, the Family Court, Delhi has passed an order
strictly in accordance with law asking the parties to wait for statutory period
of six months to file the second motion in the case. In such a 7
fact-situation, it is not permissible to suggest that the aforesaid order has
violated or infringed any of the fundamental rights or any legal right of the
parties. Therefore, we are not able to understand as under what circumstances,
the writ is maintainable. The learned counsel appearing for the petitioner is
not able to explain under what circumstances, the petition has been filed and
as to whether such a petition is maintainable or whether relief of dissolution
of marriage could be sought by the parties directly from this Court in a case,
wherein the marriage had taken place only a year and three months ago. The
counsel was not able even to explain that even if the Court considers to issue
the writ, to whom it would be issued as the only parties in the case are wife
and husband, who are seeking the divorce by consent. The learned counsel is not
able to enlighten the Court as to whether the Family Court could be impleaded
in this petition. He expressed his inability to answer any question.
AIR 1963 SC 146, this Court has held that in absence of proper
assistance to the Court by the lawyer, there is no obligation on the part of
the Court to decide the case, for the simple reason that unless 8 the lawyer
renders the proper assistance to the Court, the Court is not able to decide the
case. It is not for the Court itself to decide the controversy. The counsel
cannot just raise the issues in his petition and leave it to the Court to give
its decision on those points after going through the record and determining the
correctness thereof. It is not for the Court itself to find out what the points
for determination can be and then proceed to give a decision on those points.
While deciding the said case, this Court placed reliance upon
Izarus Sadik & Ors., AIR 1921 PC 55 wherein it had been observed as under:-
"In every appeal it is incumbent upon the appellants to show some reason
why the judgment appealed from should be disturbed; there must be some balance
in their favour when all the circumstances are considered to justify the
alteration of the judgment that stands. Their Lordships are unable to find that
this duty has been discharged." Ors. AIR 1976 SC 242, this Court had
observed as under :- "Be it remembered that the central function of the
legal profession is to promote the administration of justice. If the 9 practice
of law is thus a public utility of great implications and a monopoly is
statutorily granted by the nation, it obligates the lawyer to observe
scrupulously those norms which make him worthy of the confidence of the
community in him as a vehicle of justice - social justice..................Law
is no trade, briefs no merchandise."
AIR 1999 SC 1385, this Court observed:
work in a Court of law is a serious and responsible function. The primary duty
of a.......court is to administer.......justice. Any lax or wayward approach,
if adopted; towards the issues involved in the case, can cause serious
consequences for the parties concerned........In the adversary system which is
now being followed in India, both in civil and criminal litigation, it is very
necessary that the Court gets proper assistance from both sides................
discharge of judicial process very often depends upon the valuable services
rendered by the legal profession"
this Court has observed as under:- "..........Mutual confidence in the
discharge of duties and cordial relations between Bench and Bar smoothen the
movement of the chariot. As responsible officers of the Court, as they are
called ---- and rightly, the counsel have an overall obligation of assisting
the Courts in a just and proper manner in the just and proper administration of
16. Thus, in view of the above, law can be summarised to the
effect that, in case, the counsel for the party is not able to render any
assistance, the Court may decline to entertain the petition.
17. There is another aspect of the matter. In case, petitioner's
counsel is not able to raise a factual or legal issue, though such a point may
have a good merit, the Court should not decide the same as the opposite counsel
does not "have a fair opportunity to answer the line of reasoning
adopted" in this behalf. Such a judgment may be violative of principles of
natural justice. (vide New Delhi Municipal Committee vs. State of Punjab AIR
1997 SC 2847).
18. While dealing with a similar issue, this Court in Re: Sanjiv
Datta (1995) 3 SCC 619 observed as under:- "Of late, we have been coming
across several instances which can only be described as unfortunate both for
the legal profession and the administration of justice. It becomes, therefore,
our duty to bring it to the notice of the members of the profession that it is
in their hands to improve the quality of the service they render both to the
litigant-public and to the courts, and to brighten their image in the society.
Some members of the profession have been adopting perceptibly casual approach
to the 11 practice of the profession as is evident from their absence when the
matters are called out, the filing of incomplete and inaccurate pleadings --
many times even illegible and without personal check and verification, the
non-payment of court fees and process fees, the failure to remove office
objections, the failure to take steps to serve the parties, et al. They do not
realise the seriousness of these acts and omissions. They not only amount to
the contempt of the court but do positive disservice to the litigants and
create embarrassing situation in the court leading to avoidable unpleasantness
and delay in the disposal of matters. This augurs ill for the health of our
judicial system....... The legal profession is different from other professions
in that what the lawyers do, affects not only an individual but the
administration of justice which is the foundation of the civilised
society." (emphasis added) (2010) 1 SCC 166, this Court has taken note of
the ongoing rampant unethical practice by some of the Advocates-on-Record, duly
enrolled under the provisions of the Supreme Court Rules, 1966, as many special
leave petitions are being filed by them being merely as name- lenders, without
having, or taking any responsibility for the case. As a result of prevalence of
such a practice, in such cases, the Advocates-on-Record do not appear when
matters are listed before the Court, nor do they take any interest or
responsibility for processing or conducting the case. They also play no role in
preparation of the petitions, nor ensure that requirements of Rules 12 are
fulfilled and defects are cured. If role of an Advocate-on-Record is merely to
lend his name for filing cases without being responsible for conduct of a case,
the very purpose of having the system of Advocates-on-Record would get defected.
said case, this Court did not merely dismiss the petition for not rendering any
assistance by the appearing counsel in absence of the Advocate-on-Record,
rather issued notice to the Supreme Court Bar Association and the
Advocates-on-Record's Association asking for suggestions for improving the
system and to compel such mere name-lending Advocates-on-Record to serve the
purpose for which they have been enrolled. The matter is to come for further
consideration after those Associations submit their suggestions for observance
and strict adherence to the Rules, as is evident from the proceedings in that
case dated 30.11.2009, 08.03.2010, 15.03.2010 and 18.03.2010.
aforesaid facts reveal that application for dissolution of marriage was filed
only on 9.9.2009 before the Family Court and the said application was disposed
of vide order dated 25.11.2009 asking the parties to wait for six months. Thus,
it is not a case that there had 13 been any delay in disposal of the case by
the Family Court. The petition has been filed without any sense of
responsibility either by the parties or their counsel. Such a practice is
tantamount to not only disservice to the institution but it also adversely
affects the administration of justice. Conduct of all of them has been
reasons aforesaid, this petition is dismissed.
..............................J. (AFTAB ALAM)
.............................J. (Dr. B.S. CHAUHAN)
March 22, 2010
14 IN THE
SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO. 86
OF 2010 Smt. Poonam ..... Petitioner Versus Sumit Tanwar ..... Respondent Dear
Brother, A draft order in the above mentioned matter is being sent herewith for
your kind perusal and favourable consideration.