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SC: judgement on human rights vs matrimonial law in India 
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Joined: Thu Oct 15, 2009 5:26 pm
Posts: 419
SC: Judiciary can do complete justice under Article 142

The Supreme Court has ruled that the higher judiciary can use its power to do complete justice under Article 142 of the Constitution only in exceptional circumstances where the existing law fails to do complete justice.

A bench comprising Justices Aftab Alam and B S Chauhan refused to come to the aid of a highly qualified couple, whose matrimonial life was on the rocks within three months of marriage.

The court noted, ‘Therefore the law in this regard can be summarised to the effect that in exercise of the power under Article 142 of the Constitution, this court generally does not pass an order in contravention of or ignoring the statutory provisions nor the power is exercised merely on sympathy.’ Petitioner Manish Gel, a Chartered Accountant by profession and having degrees of CS and ICWA, got married to Dr Rohini Gel, an MD Radio Diagnosis on July 23, 2008 and started living separately from October 24.

The petition for divorce was filed in Gurgaon Court and during the pendency of the petition another petition for the same was filed before the Family Court, Delhi.

The couple was anxious to get separated immediately and was not even ready to wait for a cooling of period of six months granted by section 13-B (1) of the Hindu Marriage Act to explore the possibility of reconciliation.

Justice Chauhan, while writing a 15-page judgement for the bench, noted, ‘This case reveals a very sorry state of affairs that the parties being highly qualified have blamed even to be higher and above the law and have vested right to use, misuse and abuse the process of the court.’ The apex court, relying on a judgement by the constitution bench of the Supreme Court, ruled, ‘Generally, no court has competence to issue a direction contrary to law nor the court can direct an authority to act in contravention of the statutory provisions.

‘The courts are meant to enforce the rule of law and not to pass the orders or directions, which are contrary to what has been injected by law.

‘The court can use these powers only in exceptional cases to protect the fundamental rights of the citizens’.


Tue Mar 02, 2010 12:35 pm
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Joined: Fri Jun 05, 2009 7:47 pm
Posts: 540
Exercising Article 142 is not a privilage given to SC but it is a provision for exceptional cases where liberty and freedom could not be established. ex: recent gay rights judgement.


Tue Mar 02, 2010 3:12 pm
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Joined: Tue Oct 23, 2007 4:40 am
Posts: 429
Location: USA
Though its not very clear from the details above what the context is, but anyway, lets have some fun.
It is very ironic/sad that the supreme court thinks that complete justice can only be done in rarest of rare cases. Is the supreme court once again admitting that in India you cannot get complete justice (only incomplete or injustice). In one of the earlier such judgements it was becoming apparent that supreme court is The Divorce Court, but it seems the court is in a rush to get rid of that fame.

Since the laws and their implementation (agreed, the peoples in India are very diverse and laws are bound to inconvenience some, but here the laws benefit very few, and inconvenience almost everyone) seem to be lagging with what the society demands and there does not seem to be any intent from the legislature or executive to bring them in sync, aggrieved people should try to find some relief within the system or try to expedite change in the system.

Customary divorce is recognized in the existing system, provided that, if challenged, you can establish that it was the custom. So, if enough people from a group or forming a new group can start agreeing to divorce in a (mutually) beneficial way they may succeed in establishing a custom for divorce.

Ps: Don't take this seriously.


Wed Mar 03, 2010 8:42 am
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Joined: Thu Oct 15, 2009 5:26 pm
Posts: 419
Dear
I hope soon it will be reportable on the apex court website. I have done a search but not able to find the judgement. If anyone else finds it please post on the forum.


Wed Mar 03, 2010 4:05 pm
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Joined: Fri Jun 05, 2009 7:47 pm
Posts: 540
Today's matrimonial law takes away freedom and liberty of individual human being. This is the reason SC is forced to use its extraordinary power. And so more and more such cases going to SC because there is no solution in lower courts. At the same time SC is not willing make a clear directive for political reaon . So it not a fun saying SC as a divorce court. We need to support SC in this matter.


Wed Mar 03, 2010 6:17 pm
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