Supreme Court concerned about judges throwing mud on other judges!

This was bound to happen… The image of judiciary has taken a severe beating in last few years.  Now even Supreme Court is concerned that at least judges don’t throw mud at their own brethren.  It is difficult enough when public is doing it!  News below:

http://beta.thehindu.com/news/national/article440114.ece

The Supreme Court has cautioned the High Courts against using intemperate language and passing castigating strictures on judges of the lower judiciary. For, doing so would diminish the image of judiciary in the eyes of the public.

A vacation Bench of Justices G.S. Singhvi and C.K. Prasad, quoting earlier judgments, stressed the need for the High Courts adopting the utmost judicial restraint against using strong language as in such matters the judicial officer concerned had no remedy in law to vindicate his position.

The Bench allowed an appeal filed by a senior judicial officer against certain observations made by the Andhra Pradesh High Court. The Bench expunged them, holding that these remarks were bound to adversely affect the appellant's image in the eyes of the public and his credibility as a judicial officer, and would also affect his career.

As Principal District Judge, Kadapa, the appellant granted a temporary injunction in favour of plaintiffs in a suit and restrained the defendants from interfering with the plaint schedule property.

On an appeal by the defendants, a Division Bench of the High Court set aside the order and made scathing criticism of the appellant as a judicial officer, and recorded highly disparaging remarks.

Allowing the appeal by the judicial officer for expunction of the remarks, the Supreme Court said: “The judges in the higher courts have also a duty to ensure judicial discipline and respect for the judiciary from all concerned. The respect for the judiciary is not enhanced when judges at the lower level are criticised intemperately and castigated publicly. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary than when the judges of the higher courts publicly express lack of faith in the subordinate judges for one reason or the other.”

Judicial authoritarianism

It said: “The Division Bench of the High Court may be fully justified in setting aside the order of injunction, but there was absolutely no justification for its making highly disparaging remarks against the appellant as a judicial officer, casting doubts on his ability to decide the cases objectively. The use of the words ‘out of sheer arrogance and disrespect to the lawful order' and the expression ‘judicial authoritarianism' show that the Division Bench ignored the words of caution administered by this court in several judgments.”

Cheque bounce cases – penalty increased for compounding

All this seems very nice and good on paper, but it has to be seen in practice why a cheque defaulter would not like to pay up to maximum 20% of principal amount, and delay the case till it reaches Supreme Court.

http://timesofindia.indiatimes.com/NEWS/India/SC-gets-tough-on-cheque-bounce-cases/articleshow/5887622.cms

NEW DELHI: Delay in settling cheque bounce cases will now cost the defaulter dear, up to 20% of the cheque amount. The penalty for delayed settlement of the cheque amount, after conviction in the trial court, would rise steadily from 10% in district courts, 15% in high courts to a whopping 20% in the Supreme Court.

The SC on Monday took this radical step through a pioneering judgment which aims to curb the tendency among defaulters to sit over the amount tendered through a bounced cheque.

Saddled with 30 lakh cheque bounce cases, the SC accepted most of the suggestions offered by attorney general G E Vahanvati.

A Bench comprising Chief Justice K G Balakrishnan and Justices P Sathasivam and J M Panchal also laid down guidelines for early settlement in cheque dishonour cases under Section 138 of the Negotiable Instrument Act.

The judgment, authored by Chief Justice K G Balakrishnan, indicated that defaulters going for early settlement before the trial court would have to pay just the principal amount with applicable interest.

But if they approched the district court for settlement after being convicted by the trial court, they would have to pay 10% of the cheque amount to avoid going to jail. So if a chque amount is for Rs 1 lakh, then to compound the offence before the district court, the defaulter has to pay an additional Rs 10,000 to avoid going to jail.

Similarly, if the defaulter agrees for settlement and compounding of the offence at the HC stage, then he would have to pay 15% of the cheque amount. The amount so collected would be given to Legal Aid Authorities of the respective states which provide free legal assistance to poor litigants in various forums, the SC said.

This judgment will go a long way in reducing the pendency of over 30 lakh cheque bounce cases which have jammed the wheels of justice already slowed down by pendency of 2.7 crore cases. During the hearing of a Section 138 case between Damodar S Prabhu and Sayed Babalal, the Bench observed that there had been an enormous rush of cases after cheque bounce was made a penal offence in 1989, followed by the amendment in 2002 providing for summary trial for early resolution of the dispute.

The last line is the giveaway, there was enormous increase in cheque bounce cases AFTER it was made a penal offence in 1989.  Normally, one would expect that a criminal penalty for an offence would deter people from committing that offence.  It is clear that justice in India does not work the way it is supposed to be!   There is a huge latent demand for justice, and it does not seem to be satisfied no matter how many new laws get created.

Full SC judgment of Khushboo case

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 913 of 2010
[Arising out of SLP (Crl.) No. 4010 of 2008]
S. Khushboo                                … Appellant
Versus
Kanniammal & Anr.                        ... Respondents
WITH
Criminal Appeal 914/2010 @SLP (Crl.) No. 6127 of 2008
Criminal Appeal 915/2010 @SLP (Crl.) No. 6257 of 2008
Criminal Appeal 916/2010 @SLP (Crl.) No. 6258 of 2008
Criminal Appeal 917/2010 @SLP (Crl.) No. 6259 of 2008
Criminal Appeal 918/2010 @SLP (Crl.) No. 7049 of 2008
Criminal Appeal 919/2010 @SLP (Crl.) No. 6264 of 2008
Criminal Appeal 920/2010 @SLP (Crl.) No. 6277 of 2008
Criminal Appeal 921/2010 @SLP (Crl.) No. 7052 of 2008
Criminal Appeal 922/2010 @SLP (Crl.) No. 7053 of 2008
Criminal Appeal 923/2010 @SLP (Crl.) No. 7050 of 2008
Criminal Appeal 924/2010 @SLP (Crl.) No. 7051 of 2008
Criminal Appeal 925/2010 @SLP (Crl.) No. 4761 of 2008
Criminal Appeal 926/2010 @SLP (Crl.) No. 4772 of 2008
Criminal Appeal 927/2010 @SLP (Crl.) No. 4767 of 2008
Criminal Appeal 928/2010 @SLP (Crl.) No. 4763 of 2008
Criminal Appeal 929/2010 @SLP (Crl.) No. 4765 of 2008
Criminal Appeal 930/2010 @SLP (Crl.) No. 4762 of 2008
Criminal Appeal 931/2010 @SLP (Crl.) No. 4764 of 2008
Criminal Appeal 932/2010 @SLP (Crl.) No. 4770 of 2008
Criminal Appeal 933/2010 @SLP (Crl.) No. 4769 of 2008
J  U  D  G  M  E  N  T
Dr. B.S. CHAUHAN, J 
1. Leave granted in all the cases. 
2. The appellant is a well known actress who has approached
this Court to seek quashing of criminal proceedings pending
against her. As many as 23 Criminal Complaints were filed
against  her,  mostly in the State of  Tamil Nadu, for the
offences contemplated under  Sections 499,  500 and 505 of
the   Indian   Penal   Code,   1860     [hereinafter   ‘IPC’]   and
Sections 4 and 6 of the Indecent Representation of Women
(Prohibition)   Act,   1986   [hereinafter   ‘Act   1986’].   The
trigger   for   the   same   were   some   remarks   made   by   the
appellant in an interview to a leading news magazine and
later on the same issue was reported in a distorted manner
in   another   periodical.   Faced   with   the   predicament   of
contesting the criminal proceedings instituted against her
in several locations, the appellant had approached the High
Court   of   Madras,   praying   for   the   quashing   of   these
proceedings   through   the   exercise   of   its   inherent   power
under Section 482 of the Code of Criminal Procedure, 1973
[hereinafter   ‘Cr.PC.’].   The   High   Court   rejected   her   plea
vide impugned  judgment and order dated 30.4.2008.  At  the
same   time,   in   order   to   prevent   the   inconvenience   of

litigating   the   same   subject-matter   in   multiple   locations
directed   that   all   the   cases   instituted   against   the
appellant be consolidated and tried together by the Chief
Metropolitan Magistrate, Egmore (Chennai). Aggrieved by the
aforesaid judgment,  the appellant approached this Court by
way of a batch of Special Leave Petitions.  
3. Before addressing the legal aspects of the case before
us, it would be useful to examine the relevant facts. In
September 2005, ‘India Today’ a fortnightly news magazine
had conducted a survey on the subject of the sexual habits
of people residing in the bigger cities of India. One of
the   issues   discussed   as   part   of   this   survey   was   the
increasing incidence of pre-marital sex. As a part of this
exercise, the magazine had gathered and published the views
expressed by several individuals from different segments of
society,   including   those   of   the   appellant.   The   appellant
expressed her personal  opinion  wherein  she had noted the
increasing incidence of pre-marital sex, especially in the
context   of   live-in   relationships   and   called   for   the
societal   acceptance   of   the   same.   However,   appellant   had
also qualified her remarks by observing that girls should
take adequate  precautions to  prevent  unwanted pregnancies
and   the   transmission   of   venereal   diseases.   This   can   be

readily inferred from the statement which was published, a
rough translation of which is reproduced below:
“According to me, sex is not only concerned with
the body; but also concerned with the conscious.
I could not understand matters such as changing
boyfriends every week. When a girl is committed
to   her boyfriend, she can tell her parents and
go out with him. When their daughter is having a
serious   relationship,   the   parents   should   allow
the   same.   Our   society   should   come   out   of   the
thinking that at the time of the marriage, the
girls should be with virginity.
None of the educated men, will expect that the
girl   whom   they   are   marrying   should   be   with
virginity.   But   when   having   sexual   relationship
the   girls   should   protect   themselves   from
conceiving and getting venereal diseases.”
These   remarks   were   published   alongside   a   survey,   the
relevant extracts of which are stated below:
“Will   you   marry   a   person   who   had   relationship
with    others?
18% - Yes, 71% - No
Is it necessary to be a virgin till the time of
marriage?
65% - Yes, 26% - No
The remaining percentage of people said: Do not
know/Cannot say
82% women had given an opinion that a girl should
be a virgin at the time of marriage.”
4. Subsequently, ‘Dhina Thanthi’, a Tamil daily carried a
news item on 24.9.2005 which first quoted the appellant’s
statement published in ‘India Today’ and then opined that

it   had   created   a   sensation   all   over   the   State   of   Tamil
Nadu. This news item also reported a conversation between
the   appellant   and   a   correspondent   from   ‘Dhina   Thanthi’,
wherein the appellant had purportedly defended her views in
the following manner (rough translation reproduced below):
“The   persons   who   are   protesting   against   my
interview,   are   talking   about   which   culture?   Is
there anyone who does not know about sex in Tamil
Nadu?   Is   there   anyone   who   does   not   know   about
AIDS?   How   many   men   and   women   do   not   have   sex
before marriage?
Why are people saying that after the marriage the
husband and wife should be honest and faithful to
each   other?   One   should   have   confidence   in   the
other,   only   to   avoid   the   mistakes   from   being
committed. If the husband, without the knowledge
of the wife, or the wife, without the knowledge
of the husband, have sex with other persons, if a
disease   is   caused   through   that,   the   same   will
affect both the persons. It will also affect the
children. Only because of this, they are saying
like that.” 
However, soon after the publication of the above mentioned
news   item,   the   appellant   had   sent   a   legal   notice   dated
2.10.2005 to the Editor of ‘Dhina Thanthi’, categorically
denying that she had made the statement quoted above. In
fact, the appellant had asked the publisher to withdraw the
news-item   carried   on   24.9.2005   and   to   publish   her
objections prominently within three days of receipt of the
notice, failing which the appellant would be constrained to
take appropriate legal action against the newspaper.

5. As outlined above, the publication of these statements
in  ‘India Today’ and ‘Dhina  Thanthi’ drew  criticism  from
some quarters and several persons and organisations filed
criminal   complaints   against   the   appellant.   For   instance,
the complainant in the appeal arising out of SLP (Crl) No.
4010 of 2008 has stated that she is a married woman who is
the Treasurer of a District-level unit of the Pattali Makal
Katchi [hereinafter ‘PMK’], a political party, and is also
involved in social service. She had quoted some parts of
the   statements   published   in   ‘India   Today’   and   ‘Dhina
Thanthi’   to   allege   that   the   appellant’s   interview   had
brought   great   shame   on   her   since   it   had   suggested   that
women   of   her   profile   had   engaged   in   premarital   sex.   The
complainant   further   alleged   that   the   appellant’s   remarks
had caused mental harassment to a large section of women,
and in particular women from Tamil Nadu were being looked
down upon with disrespect and contempt.
6. In the appeal arising out of SLP (Crl.) 4764 of 2008,
the   complainant   is   a   male   advocate   who   is   a   District
Secretary of the PMK for Salem District. In his complaint,
there is no direct reference to the news-item published in
‘Dhina Thanthi’ on 24.9.2005. Instead the complainant has
stated that he found second-hand accounts of the same to be

quite shocking since the appellant had questioned the need
for women to maintain their virginity or chastity. It was
alleged   that   these   remarks   were   an   abuse   against   the
dignity   of   the   Tamil   women   and   that   they   had   grossly
affected and ruined the culture and morality of the people
of   the   State.   It   was   further   submitted   that   these
statements could persuade people to involve themselves in
unnatural crimes and that the appellant’s acts amounted to
commission of offences punishable under Sections 499, 500,
504, 505(1)(b)   and 509 IPC read with Section 3 and 4 of
Act   1986.   Similarly,   in   the   appeal   arising   out   of   SLP
(Crl.) 6127 of 2008, the complainant is a lady advocate who
has been practicing in the Trichy District Courts for more
than   10   years.   She   has   quoted   some   portions   from   the
statements published in ‘India Today’ and ‘Dhina Thanthi’
to submit that the appellant’s acts were punishable under
Sections 292, 500, 504, 505(1)(b) and (c), 505(2) and 509
IPC read with Section 6 of  Act 1986.
7. Likewise, in the appeal arising out of SLP (Crl.) 6259
of 2008, the complainant has stated that she is a married
woman belonging to a reputed family and that she is serving
as the President of the District Magalir Association of the
PMK  (in Thiruvarur) and rendering  social service. In  her

complaint,   some   parts   of   the   appellant’s   statements   have
been quoted to allege that she had suffered great mental
agony and shame since it was suggested that all women in
Tamil   Nadu   had   lost   their   virginity   before   marriage.   In
this   respect,   the   complainant   has   alleged   that   the
appellant had committed offences punishable under Sections
499, 500, 504, 505(1)(b) and 509   IPC read with Section 6
of Act 1986. It is noteworthy that in most of the other
cases   filed   in   various   districts   of   Tamil   Nadu,   the
complainants   are   functionaries   of   the   PMK   and   similar
allegations have been levelled against the appellant. Oddly
enough,   one   of   the   complaints   had   even   been   filed   in
Indore, Madhya Pradesh.  
8. As mentioned earlier, the appellant approached the High
Court   of   Madras   to   seek   quashing   of   all   the   criminal
proceedings instituted against her in this connection. In
its judgment dated 30.4.2008, the High Court   refused to
quash the proceedings by    exercising its inherent powers
under Section 482 Cr.PC, on the premise that the relevant
considerations  in this  case  were  questions  of  fact  which
were best left to be determined by a trial judge. The High
Court  noted that two basic questions were involved in the
case. Firstly, whether the appellant could claim any of the

recognised   defences   against   the   allegations   of   having
committed defamation, as contemplated by Section 499  IPC.
Secondly,   whether   the   complainants   could   at   all   be
described   as   ‘aggrieved   persons’   within   the   meaning   of
Section 199 Cr.PC since that was linked to the question of
whether the complaints had been made in a bona fide manner.
The High Court thought it fit to leave both these questions
for   consideration   by   a   trial   judge,   and   in   a   partial
reprieve   to   the   appellant   it   was   directed   that   all   the
criminal   proceedings   pending   against   her   be   consolidated
and tried by the Chief Metropolitan Magistrate at Egmore,
Chennai. However, the High Court also proceeded to record
its   own   views   regarding   the   contents   of   the   appellant’s
statements   and   even   made   some   strong   observations
condemning   the   incidence   of   premarital   sex   and   live-in
relationships.   
9. In the proceedings before us, Ms. Pinki Anand, learned
counsel appearing for the appellant, has submitted that the
complainants   (respondents   in   these   appeals)   were   not
‘persons aggrieved’ within the meaning of Section 199(1)(b)
Cr.PC   and   hence   they   were   not   competent   to   institute
private complaints for the alleged offences. It was stated
that the appellant had made a fair and reasonable comment

as a prudent person, and therefore, the opinion expressed
by the appellant is fully protected under Article 19(1)(a)
of  the Constitution of  India which guarantees  freedom  of
speech and expression to all citizens. Furthermore, it was
contended   that   even   if   the   allegations   in   the   various
complaints are taken on their face value and accepted in
their   entirety,   the   same   do   not   disclose   any   offence
whatsoever and the opinion of the appellant does not, by
any means, fall within the ambit of Sections 499, 500 and
505   IPC   or   Sections   3   and   4   of   Act   1986.   It   was   also
canvassed that the criminal proceedings had been instituted
in   a   mala   fide   manner   by   the   workers   of   a   particular
political   party,   with   the   intention   of   vilifying   the
appellant and gaining undue political mileage.
10. In response, Sh. Kanagaraj, Sr. Adv., Sh. S. Gowthaman,
Adv. and Sh. B. Balaji, Adv. appearing for the respondents,
submitted that since the High Court has refused to quash
the   complaints,   this   Court   should   not   interfere   either
since   the   complaints   require   determination   of   factual
controversies that are best left to be decided by a court
of first instance. They have asserted that the complainants
in these cases are mostly women belonging to Tamil Nadu,
who were personally aggrieved by the appellant’s remarks.

It was argued that the endorsement of pre-marital sex by a
prominent person such as the appellant would have a morally
corruptive   effect   on   the   minds   of   young   people.   Her
statement would definitely obscure some basic moral values
and expose young people to bizarre ideas about premarital
sex,   thereby   leading   to   deviant   behaviour   which   would
adversely   affect   public   notions   of   morality.   It   was
contended that the constitutional protection for speech and
expression   is   not   absolute   and   that   it   is   subject   to
reasonable restrictions based on considerations of ‘public
order’,   ‘defamation’,   ‘decency   and   morality’   among   other
grounds.        
11.   We   have   considered   the   rival   submissions   made   by
learned counsel for the parties and perused the record.
12. In order to decide this case, it will not be proper for
us to either condemn or endorse the views expressed by the
appellant.   When   the   criminal   law   machinery   is   set   in
motion,   the   superior   courts   should   not   mechanically   use
either   their   inherent   powers   or   writ   jurisdiction   to
intervene   with   the   process   of   investigation   and   trial.
However, such forms of judicial review can be exercised to
prevent a miscarriage of justice or to correct some grave

errors  that  might  have been  committed  by  the subordinate
courts.   [See   decision   of   this   Court   in:  M/s   Pepsi   Foods
Ltd.   &   Anr.  Vs.  Special   Judicial   Magistrate   &   Ors.,   AIR
1998 SC 128]. In the past, this Court has even laid down
some guidelines for the exercise of inherent power by the
High   Courts   to   quash   criminal   proceedings   in   such
exceptional cases. We can refer to the decision in State of
Haryana & Ors. Vs. Ch. Bhajan Lal & Ors., AIR 1992 SC 604,
to take note of two such guidelines which are relevance for
the present case :-   
“(1).   Where   the   allegations   made   in   the   First
Information Report or the complaint, even if they
are   taken   at   their   face   value   and   accepted   in
their entirety do not prima facie constitute any
offence or make out a case against the accused.
… (7). Where a criminal proceeding is manifestly
attended   with   mala   fide   and/or   where   the
proceeding   is   maliciously   instituted   with   an
ulterior   motive   for   wreaking   vengeance   on   the
accused   and   with   a   view   to   spite   him   due   to
private and personal grudge.”
13. It is of course a settled legal proposition that in a
case   where   there   is   sufficient   evidence   against   the
accused,   which   may   establish   the   charge   against   him/her,
the proceedings cannot be quashed. In  M/s Medchl Chemicals
& Pharma Ltd.  Vs.  M/s Biological E. Ltd. & Ors., AIR 2000
SC 1869, this Court observed that a criminal complaint or a
charge   sheet   can   only   be   quashed   by   superior   courts   in

exceptional circumstances, such as when the allegations in
a   complaint   do   not   support   a   prima   facie   case   for   an
offence. Similarly, in  M/s Zandu Pharmaceutical Works Ltd.
& Ors. Vs. Mohd. Sharaful Haque & Ors., AIR 2005 SC 9, this
Court has held that criminal proceedings can be quashed but
such a power  is to be  exercised  sparingly  and only  when
such an exercise is justified by the tests that have been
specifically   laid   down   in   the   statutory   provisions
themselves.   It   was   further   observed   that   superior   courts
“may examine the questions  of  fact” when  the use of  the
criminal law machinery could be in the nature of an abuse
of   authority   or   when   it   could   result   in   injustice.   In
Shakson Belthissor  Vs.  State of Kerala & Anr., (2009) 14
SCC 466, this Court relied on earlier precedents to clarify
that   a   High   Court   while   exercising   its   inherent
jurisdiction should not interfere with a genuine complaint
but   it   should   certainly   not   hesitate   to   intervene   in
appropriate cases. In fact it was observed:
“One   of   the   paramount   duties   of   the   superior
courts is to see that a person who is apparently
innocent   is   not   subjected   to   prosecution   and
humiliation on the basis of a false and wholly
untenable complaint.”  
14. There can be no quarrel about this Court’s competence
to   quash   criminal   proceedings   pending   before   the

subordinate courts. However, this power must be exercised
sparingly and with circumspection. In light of the position
summarized above, we can examine the present case with two
considerations in mind, namely whether the allegations made
against the appellant support a prima facie case for the
offences   mentioned   in   the   respective   complaints,   and
whether the complaints were made in a bona fide manner.
15.   Perusal   of   the   complaints   reveals   that   most   of   the
allegations have pertained to offences such as defamation
(Sections   499,   501   and   502   IPC),   obscenity   (Section   292
IPC), indecent representation of women and incitement among
others. At the outset, we are of the view that there is
absolutely no basis for proceeding against the appellant in
respect of some of the alleged offences. For example, the
Act, 1986 was enacted to punish publishers and advertisers
who knowingly disseminate materials that portray women in
an indecent manner. However, this statute cannot be used in
the present case where the appellant has merely referred to
the incidence of pre-marital sex in her statement which was
published by a news magazine and subsequently reported in
another   periodical.   It   would   defy   logic   to   invoke   the
offences mentioned in this statute to proceed against the
appellant, who cannot be  described  as  an  ‘advertiser’ or

‘publisher’   by   any   means.   Similarly,   Section   509   IPC
criminalises a ‘word, gesture or act intended to insult the
modesty of a woman’ and in order to establish this offence
it is necessary to show that the modesty of a particular
woman   or   a   readily   identifiable   group   of   women   has   been
insulted by a spoken word, gesture or physical act. Clearly
this   offence   cannot   be   made   out   when   the   complainants’
grievance is with the publication of what the appellant had
stated in a written form. Likewise, some of the complaints
have   mentioned   offences   such   as   those   contemplated   by
Section   153A   IPC   (‘Promoting   enmity   between   different
groups   etc.,’)   which   have   no   application   to   the   present
case since the appellant was not speaking on behalf of one
group   and   the   content   of   her   statement   was   not   directed
against any particular group either. 
16. Coming to the substance of the complaints, we fail to
see  how the appellant’s remarks  amount to  ‘obscenity’ in
the context of Section 292 IPC. Clause (1) to Section 292
states   that   the   publication   of   a   book,   pamphlet,   paper,
writing,   drawing,   painting,   representation,   figure,   etc.,
will be deemed obscene, if –
• It   is   lascivious   (i.e.   expressing   or   causing   sexual
desire) or

• Appeals   to   the   prurient   interest   (i.e.   excessive
interest in sexual matters), or
• If its effect, or the effect of any one of the items,
tends to deprave and corrupt persons, who are likely
to   read,   see,   or   hear   the   matter   contained   in   such
materials.  
In the past, authors as well as publishers of artistic and
literary works have been put to trial and punished under
this section. In the present case, the appellant takes full
responsibility   for   her   statement   which   was   published   in
‘India Today’, a leading news magazine. It would be apt to
refer   back   to   the   decision   of   this   Court   in  Ranjit   D.
Udeshi  Vs.  State of Maharashtra, AIR 1965 SC 881, wherein
it was held that if a mere reference to sex by itself is
considered obscene, no books can be sold except those which
are purely religious. It was observed that in the field of
art  and cinema, the adolescent is  shown situations which
even   a   quarter   of   a   century   ago   would   be   considered
derogatory to public morality, but having regard to changed
conditions, the same are taken for granted without in any
way tending to debase or debauch the mind. What is to be
considered is whether a class of persons, not an isolated
case,   into   whose   hands   the   book,   article   or   story   falls
will suffer in their moral outlook or become depraved by
reading   it   or   might   have   impure   and   lecherous   thoughts

aroused in their minds. Even though the decision in that
case had upheld a conviction for the sale  of  a literary
work,   it   became   clear   that   references   to   sex   cannot   be
considered obscene in the legal sense without examining the
context of the reference. 
17. This position was later clarified in Samaresh Bose Vs.
Amal Mitra, AIR 1986 SC 967, where the Court held that in
judging the question of obscenity, the judge in the first
place should try to place himself in the position of the
author   and   from   the   viewpoint   of   the   author,   the   judge
should try to understand what is it that the author seeks
to   convey   and   whether   what   the   author   conveys   has   any
literary and artistic value.  Judge should thereafter place
himself in the position of a reader of every age group in
whose hands the book is likely to fall and should try to
appreciate   what   kind   of   possible   influence   the   book   is
likely to have on the minds of the reader.
18. There are numerous other decisions, both from India and
foreign   country   which   mandate   that   ‘obscenity’   should   be
gauged   with   respect   to   contemporary   community   standards
that   reflect   the   sensibilities   as   well   as   the   tolerance
levels of an average reasonable person. Owing to the clear

formulation  on this  issue  it  is  not necessary  for us  to
discuss  these  precedents  at  length.  In  the present  case,
the   appellant   has   merely   referred   to   the   increasing
incidence of pre-marital sex and called for its societal
acceptance.   At   no   point   of   time   appellant   described   the
sexual   act   or   said   anything   that   could   arouse   sexual
desires   in   the   mind   of   a   reasonable   and   prudent   reader.
Furthermore, the statement has been made in the context of
a survey which has touched on numerous aspects relating to
the sexual habits of people in big cities. Even though this
survey was not part of a literary or artistic work, it was
published in a news magazine thereby serving the purpose of
communicating   certain   ideas   and   opinions   on   the   above-
mentioned   subject.   In   the   long   run,   such   communication
prompts a dialogue within society wherein people can choose
to either defend or question the existing social mores. It
is  difficult to appreciate the claim that  the statements
published   as   part   of   the   survey   were   in   the   nature   of
obscene communications.
19. We must also respond to the claim that the appellant’s
remarks could have the effect of misguiding young people by
encouraging them to indulge in premarital sex. This claim
is   a   little   far-fetched   since   the   appellant   had   not

directed   her   remarks   towards   any   individual   or   group   in
particular.   All   that   the   appellant   did   was   to   urge   the
societal   acceptance   of   the   increasing   instances   of
premarital   sex   when   both   partners   are   committed   to   each
other. This cannot be construed as an open endorsement of
sexual activities of all kinds. If it were to be considered
so, the criminal law machinery would have to take on the
unenforceable task of punishing all writers, journalists or
other   such   persons   for   merely   referring   to   any   matter
connected with sex in published materials. For the sake of
argument,   even   if   it   were   to   be   assumed   that   the
appellant’s   statements   could   encourage   some   people   to
engage in premarital sex, no legal injury has been shown
since the latter is not an offence.
20. “Offence”   means   ‘an   act   or   instance   of   offending’;
‘commit an illegal act’ and illegal means, ‘contrary to or
forbidden by law’. 
“Offence” has to be read and understood in the context
as it has been prescribed under the provisions of Sections
40, 41 and 42 IPC which cover the offences punishable under
I.P.C. or under special or local law or as defined under
Section   2(n)   Cr.P.C.   or     Section   3(38)   of   the   General
Clauses   Act,   1897   (vide   Proprietary   Articles   Trade

Association Vs. Attorney General for Canada AIR 1931 PC 94;
Thomas Dana Vs. State of Punjab AIR 1959 SC 375; Jawala Ram
& Ors. Vs. The State of Pepsu (now Punjab) & Ors. AIR 1962
SC 1246; and Standard Chartered Bank & Ors. Vs. Directorate
of Enforcement & Ors. AIR 2006 SC 1301).
21. While   it   is   true   that   the   mainstream   view   in   our
society   is   that   sexual   contact   should   take   place   only
between   marital   partners,   there   is   no   statutory   offence
that   takes   place   when   adults   willingly   engage   in   sexual
relations outside the marital setting, with the exception
of   ‘adultery’   as   defined   under   Section   497   IPC.   At   this
juncture, we may refer to the decision given by this Court
in  Lata Singh Vs. State of U.P. & Anr., AIR 2006 SC 2522,
wherein it was observed that a live-in relationship between
two consenting adults of heterogenic sex does not amount to
any   offence   (with   the   obvious   exception   of   ‘adultery’),
even though it may be perceived as immoral.   A major girl
is free to marry anyone she likes or “live with anyone she
likes”.   In that case, the petitioner was a woman who had
married   a   man   belonging   to   another   caste   and   had   begun
cohabitation with him. The petitioner’s brother had filed a
criminal complaint accusing her husband of offences under
Sections   366   and   368   IPC,   thereby   leading   to   the

commencement   of   trial   proceedings.   This   Court   had
entertained a writ petition and granted relief by quashing
the criminal trial. Furthermore, the Court had noted that
‘no  offence was committed by  any of  the accused  and the
whole criminal case in question is an abuse of the process
of the Court’. 
22. It would also be instructive to refer to a decision of
the House of Lords (U.K.) in  Gillick  Vs.  West Norfolk and
Wisbech Area Health Authority, (1985) 3 All ER 402. In that
case, mother of a teenage girl had questioned the decision
of the National Health Service (NHS) to issue a circular to
local   area   health   authorities   which   contained   guidelines
for rendering advice about contraceptive methods to girls
under the age of 16 years. Objections were raised against
this   circular   on   the   ground   that   the   health   service
authorities   had   no   competence   to   render   such   advice   and
that doing so could adversely affect young children while
at the same time interfering with parental autonomy in the
matter   of   bringing   up   children.   The   majority   decision
rejected the challenge against the circular by clarifying
that   the   rendering   of   advice   about   contraceptive   methods
and their provision by medical professionals did not amount
to a sexual offence. Among the several aspects discussed in

that case, it was held that the provision of information
about contraceptive facilities to girls under the age of 16
years   could   not   be   opposed   on   the   ground   that   such
information   could   potentially   encourage   more   sexual
activity by the teenagers. For the purpose of the present
case,   this   decision   supports   the   reasoning   that   we   must
fully   understand   the   context   and   the   purpose   for   which
references to sex have been made in any given setting.  
23.   We   now   turn   to   the   question   whether   the   appellant’s
remarks could reasonably amount to offence of defamation as
defined under Section 499 IPC.   In the impugned judgment
dated 30.4.2008, the High Court observed that as to whether
the appellant could claim a defence against the allegations
of  defamation was a factual  question and thus  would   be
decided by a trial Court.   However, even before examining
whether   the   appellant   can   claim   any   of   the   statutory
defences in this regard, the operative question is whether
the allegations in the impugned complaints support a prima
facie  case   of   defamation   in   the   first   place.   It   is   our
considered   view   that   there   is   no   prima   facie   case   of
defamation   in   the   present   case.   This   will   become   self-
evident if we draw attention to the key ingredients of the

offence   contemplated   by   Section   499   IPC,   which   reads   as
follows: 
“499.   Defamation.-  Whoever,   by   words   either
spoken or intended to be read, or by signs or by
visible   representations,   makes   or   publishes   any
imputation   concerning   any   person   intending   to
harm, or knowing or having reason to believe that
such imputation will harm, the reputation of such
person, is said, except in the cases hereinafter
expected, to defame that person.
Explanation 1. – It may amount to defamation to
impute   anything   to   a   deceased   person,   if   the
imputation   would   harm   the   reputation   of   that
person if living, and is intended to be hurtful
to   the   feelings   of   his   family   or   other   near
relatives.
Explanation 2. –  It may amount to defamation to
make   an   imputation   concerning   a   company   or   an
association or collection of persons as such.
Explanation 3. – An imputation in the form of an
alternative   or   expressed   ironically,   may   amount
to defamation.
Explanation 4.- No imputation is said to harm a
person’s   reputation,   unless   that   imputation
directly   or   indirectly,   in   the   estimation   of
others,   lowers   the   moral   or   intellectual
character of that person, or lowers the character
of that person in respect of his caste or of his
calling, or lowers the credit of that person, or
causes it to be believed that the body of that
person   is   in   a   loathsome   state,   or   in   a   state
generally considered as disgraceful. …”
(emphasis supplied)
The definition makes it amply clear that the accused must
either intend to harm the reputation of a particular person

or  reasonably know  that  his/her  conduct  could cause such
harm. Explanation 2 to Section 499 further states that ‘It
may amount to defamation to make an imputation concerning a
company   or   an   association   or   collection   of   persons   as
such.’
24.   With   regard   to   the   complaints   in   question,   there   is
neither any intent on part of the appellant to cause harm
to the reputation of the complainants nor can we discern
any actual harm done to their reputation. In short, both
the elements i.e.  mens rea  and  actus reus  are missing. As
mentioned earlier,  the appellant’s statement  published  in
‘India   Today’   (in   September   2005)   is   a   rather   general
endorsement   of   premarital   sex   and   her   remarks   are   not
directed   at   any   individual   or   even   at   a   ‘company   or   an
association or collection of persons’. It is difficult to
fathom   how   the   appellant’s   views   can   be   construed   as   an
attack on the reputation of anyone in particular. Even if
we refer to the remarks published in ‘Dhina Thanthi’ (dated
24.9.2005)   which   have   been   categorically   denied   by   the
appellant, there is no direct attack on the reputation of
anyone in particular. Instead, the purported remarks are in
the nature of rhetorical questions wherein it was asked if
people  in Tamil  Nadu  were  not aware of  the incidence  of

sex. Even if we consider these remarks in their entirety,
nowhere has it been suggested that all women in Tamil Nadu
have engaged in premarital sex. That imputation can only be
found   in   the   complaints   that   were   filed   by   the   various
respondents. It is a clear case of the complainants reading
in too much into the appellant’s remarks.
25. This takes us to the question of whether the impugned
complaints   were   made   in   a   bona   fide   manner.   As   we   have
already noted, most of the complainants are associated with
the PMK, a political party which is active in the State of
Tamil   Nadu.   This   fact   does   add   weight   to   the   suggestion
that   the   impugned   complaints   have   been   filed   with   the
intention   of   gaining   undue   political   mileage.   It   may   be
reiterated   here   that   in   respect   of   the   offence   of
defamation, Section 199 Cr.PC mandates that the Magistrate
can take cognizance of the offence only upon receiving a
complaint by a person who is aggrieved. This limitation on
the   power   to   take   cognizance   of   defamation   serves   the
rational   purpose   of   discouraging   the   filing   of   frivolous
complaints   which   would   otherwise   clog   the   Magistrate’s
Courts. There is of course some room for complaints to be
brought by persons other than those who are aggrieved, for
instance when the aggrieved person has passed away or is

otherwise unable to initiate legal proceedings. However, in
given facts of the present case, we are unable to see how
the   complainants   can   be   properly   described   as   ‘persons
aggrieved’ within the meaning of Section 199(1)(b)  Cr.PC.
As  explained earlier, there was no  specific legal injury
caused   to   any   of   the   complainants   since   the   appellant’s
remarks were not directed at any individual or a readily
identifiable   group   of   people.   In  M.S.   Jayaraj  Vs.
Commissioner of Excise, Kerala & Ors., (2000) 7 SCC 552,
this Court observed as under:
“The   ‘person   aggrieved’   means   a   person   who   is
wrongfully deprived of his entitlement which he
is legally entitled to receive and it does not
include   any   kind   of   disappointment   or   personal
inconvenience. ‘Person aggrieved’ means a person
who is injured or one who is adversely affected
in a legal sense.”
26. We can also approvingly refer to an earlier decision of
this Court in  G. Narasimhan  & Ors.  Vs.  T.V. Chokappa, AIR
1972 SC 2609. In that case a controversy had arisen after
‘The   Hindu’,   a   leading   newspaper   had   published   a   report
about   a   resolution   passed   by   the   Dravida   Kazhagham,   a
political party, in its conference held on January 23-24,
1971. Among other issues, the resolution also included the
following words:
“It should not be made an offence for a person’s
wife to desire another man.”

The Hindu, in its report, gave publicity to this resolution
by using the following words:
“The   Conference   passed   a   resolution   requesting
the Government to take suitable steps to see that
coveting   another   man’s   wife   is   not   made   an
offence under the Indian Penal Code.”
A complaint under Sections 499, 500 and 501 IPC was filed
in   response   to   this   report.   Like   the   present   case,   the
Court   had   to   consider   whether   the   complainant   had   the
proper legal standing to bring such a complaint. The Court
did examine Section 198 of the Code of Criminal Procedure,
1898   (analogous   to   Section   199   of   the   Cr.PC.   1973)   and
observed that the said provision laid down an exception to
the general rule that a criminal complaint can be filed by
anyone irrespective of whether he is an “aggrieved person”
or not.  But there is a departure from this norm in so far
as the provision permits only an “aggrieved person” to move
the Court in case of defamation. This section is mandatory
and it is a settled legal proposition that if a Magistrate
were to take cognizance of the offence of defamation on a
complaint filed by one who is not an “aggrieved person”,
the trial and conviction of an accused in such a case by
the   Magistrate   would   be   void   and   illegal.   This   Court
further   noted   that   the   news-item   in   question   did   not
mention   any   individual   person   nor   did   it   contain   any

defamatory imputation against any individual. Accordingly,
it   was   held   that   the   complainant   was   not   a   ‘person
aggrieved’ within the meaning of Section 198   CrPC, 1898.
The Court also took note of Explanation 2 to Section 499
IPC   which   contemplates   defamation   of   ‘a   company   or   an
association   or   any   collection   of   persons   as   such’.
Undoubtedly,   the   explanation   is   wide   but   in   order   to
demonstrate the offence of defamation, such a collection of
persons must be an identifiable body so that it is possible
to say with precision that a group of particular persons,
as   distinguished   from   the   rest   of   the   community   stood
defamed. In case the identity of the collection of persons
is not established so as to be relatable to the defamatory
words or imputations, the complaint is not maintainable. In
case a class is mentioned, if such a class is indefinite,
the complaint cannot be entertained. Furthermore, if it is
not possible to ascertain the composition of such a class,
the criminal prosecution cannot proceed.   
While deciding the case, this Court placed reliance on
the judgment of the House of Lords in Knupffer Vs. London
Express Newspaper Ltd. (1944) 1 ALL ER 495, wherein it had
been held that it is an essential element of the cause of
action for defamation that the words complained of should
be published “of the complainant/plaintiff”.   Where he is

not   named,   the   test   would   be   whether   the   words   would
reasonably   lead   people   acquainted   with   him   to   the
conclusion that he was the person referred to.
In fact, it is the reputation of an individual person
which must be in question and only such a person can claim
to have “a legal peg for a justifiable claim to hang on”.
27.   Coming   back   to   the   facts   of   the   present   case,   the
complainants   have   alleged   defamation   in   respect   of
imputations against the character of Tamil-speaking women,
which   could   perhaps   be   viewed   as   a   class   of   persons.
However,     we   have   already   explained,   the   appellant’s
remarks did not suggest that all women in Tamil Nadu have
engaged in premarital sex. In fact her statement in ‘India
Today’ did not refer to any specific individual or group at
all. If we refer to one of the questions asked as part of
the concerned survey, one of the answers shows that 26% of
the people who responded to the same did not think that it
was necessary for women to retain their virginity till the
time of marriage. Clearly the appellant was not alone in
expressing such a view, even though it may be unpopular or
contrary   to   the   mainstream   social   practices.   Even   if   it
were assumed that the news-item carried in ‘Dhina Thanthi’
caused   mental   agony   to   some   sections   of   women   in   Tamil

Nadu, there is no prima facie case for any offence. What is
interesting to note is that not all of the complainants are
women,   and   in   fact   almost   all   the   complainants   are
associated with a particular political party. 
28. We are of the view that the institution of the numerous
criminal   complaints   against   the   appellant   was   done   in   a
mala   fide   manner.   In   order   to   prevent   the   abuse   of   the
criminal law machinery, we are therefore inclined to grant
the   relief   sought   by   the   appellant.   In   such   cases,   the
proper   course   for   Magistrates   is   to   use   their   statutory
powers   to   direct   an   investigation   into   the   allegations
before taking cognizance of the offences alleged. It is not
the task of the criminal law to punish individuals merely
for expressing unpopular views. The threshold for placing
reasonable   restrictions   on   the   ‘freedom   of   speech   and
expression’ is indeed a very high one and there should be a
presumption in favour of the accused in such cases. It is
only when the complainants produce materials that support a
prima facie case for a statutory offence that Magistrates
can   proceed   to   take   cognizance   of   the   same.   We   must   be
mindful   that   the   initiation   of   a   criminal   trial   is   a
process which carries an implicit degree of coercion and it

should not be triggered by false and frivolous complaints,
amounting to harassment and humiliation to the accused.  
29.  Even  though the constitutional  freedom  of  speech and
expression   is   not   absolute   and   can   be   subjected   to
reasonable   restrictions   on   grounds   such   as   ‘decency   and
morality’ among others, we must lay stress on the need to
tolerate unpopular views in the socio-cultural space. The
framers   of   our   Constitution   recognised   the   importance   of
safeguarding this right since the free flow of opinions and
ideas is essential to sustain the collective life of the
citizenry. While an informed citizenry is a pre-condition
for meaningful governance in the political sense, we must
also promote a culture of open dialogue when it comes to
societal attitudes. Admittedly, the appellant’s remarks did
provoke   a   controversy   since   the   acceptance   of   premarital
sex   and   live-in   relationships   is   viewed   by   some   as   an
attack on the centrality of marriage. While there can be no
doubt   that   in   India,   marriage   is   an   important   social
institution, we must also keep our minds open to the fact
that   there   are   certain   individuals   or   groups   who   do   not
hold the same view. To be sure, there are some indigenous
groups within our country wherein sexual relations outside
the  marital setting are accepted as  a normal occurrence.

Even in the societal mainstream, there are a significant
number   of   people   who   see   nothing   wrong   in   engaging   in
premarital sex. Notions of social morality are inherently
subjective and the criminal law cannot be used as a means
to unduly interfere with the domain of personal autonomy.
Morality   and   Criminality   are   not   co-extensive.   In   the
present   case,   the   substance   of   the   controversy   does   not
really   touch   on   whether   premarital   sex   is   socially
acceptable.   Instead,   the   real   issue   of   concern   is   the
disproportionate   response   to   the   appellant’s   remarks.   If
the complainants vehemently disagreed with the appellant’s
views,  then  they  should have  contested  her views through
the news media or any other public platform. The law should
not be used in a manner that has chilling effects on the
‘freedom   of   speech   and   expression’.   It   would   be   apt   to
refer to the following observations made by this Court in
S. Rangarajan Vs. P. Jagjivan Ram & Ors., (1989) 2 SCC 574,
which spell out the appropriate approach for examining the
scope of ‘reasonable restrictions’ under Art. 19(2) of the
Constitution that can be placed on the freedom of speech
and expression:-
“   …   Our   commitment   of   freedom   of   expression
demands that it cannot be suppressed unless the
situations   created   by   allowing   the   freedom   are
pressing   and   the   community   interest   is
endangered. The anticipated danger should not be
remote,   conjectural   or   far-fetched.   It   should

have   proximate   and   direct   nexus   with   the
expression. The expression of thought should be
intrinsically   dangerous   to   the   public   interest.
In   other   words,   the   expression   should   be
inseparably   locked   up   with   the   action
contemplated like the equivalent of a ‘spark in a
powder keg’.
The Court further held:
“ … The standard to be applied by the Board or
courts for judging the film should be that of an
ordinary man of common sense and prudence and not
that of an out of the ordinary or hypersensitive
man   …   The   different   views   are   allowed   to   be
expressed by proponents and opponents not because
they are correct, or valid but because there is
freedom   in   this   country   for   expressing   even
differing   views   on   any   issue.   …   Freedom   of
expression   which   is   legitimate   and
constitutionally   protected,   cannot   be   held   to
ransom   by   an   intolerant   group   of   people.   The
fundamental freedom under Article 19(1)(a) can be
reasonably   restricted   only   for   the   purposes
mentioned   in   Article   19(2)   and   the   restriction
must be justified on the anvil of necessity and
not the quicksand of convenience or expediency.
Open   criticism   of   government   policies   and
operations   is   not   a   ground   for   restricting
expression.   We   must   practice   tolerance   of   the
views of others. Intolerance is as much dangerous
to democracy as to the person himself.”
30. Thus,   dissemination   of   news   and   views   for   popular
consumption is permissible under our constitutional scheme.
The   different   views   are   allowed   to   be   expressed   by   the
proponents and opponents. A culture of responsible reading
is to be inculcated amongst the prudent readers. Morality
and   criminality       are   far   from   being   co-extensive.   An
expression of opinion in  favour of  non-dogmatic  and non-

conventional   morality   has   to   be   tolerated   as   the   same
cannot be a ground to penalise the author.
31. Before saying omega, it is necessary for us to point
out certain unwarranted developments that have taken place
ever since the matter was heard till date.  In fact, during
the   course   of   hearing,   certain   queries   were   put   to   the
learned counsel appearing for parties so as to clarify the
legal issue involved in the matter but unfortunately, those
queries  have  been  highly misunderstood not only  by  media
but also by common man.  As a result thereof, we have been
flooded with several letter petitions making a prayer for
review   of   the   order   passed   by   us.     It   is   pertinent   to
mention here that no order was passed by us and only during
the course of hearing, we had either given some instances
or   put   some   questions   to   the   learned   counsel   which   were
answered by them.  Thus, this hyper active attitude of the
common  man was,  indeed,  not called for.    Some  have  even
gone to the extent of telling us that we should have known
the   Indian   mythology   before   putting   such   question.   Thus,
whatever   we   have   said   during   the   course   of   the   hearing
should   be   reviewed.     We   fail   to   understand   how   such   an
attitude could be adopted by those learned persons who were
involved   in   sending   various   letter   petitions   to   us.

Admittedly, all those persons who have sent letters to us
were   not   present   on   that   particular   date   but   must   have
gathered   information   from   the   print   and   electronic   media
which evoked their sentiments to such an extent that they
prayed for review. 
32. It   is,   therefore,   not   only   desirable   but   imperative
that electronic and news  media should also  play  positive
role in presenting to general public as to what actually
transpires during the course of the hearing and it should
not be published in such a manner so as to get unnecessary
publicity   for   its   own   paper   or   news   channel.     Such   a
tendency, which is indeed growing fast, should be stopped.
We   are   saying   so   as   without   knowing   the   reference   in
context of which the questions were put forth by us, were
completely ignored and the same were misquoted which raised
unnecessary hue and cry. 
33. We hope and trust in future, they would be little more
careful, responsible and cautious in this regard.   
34.   In   conclusion,   we   find   that   the   various   complaints
filed against the appellant do not support or even draw a
prima   facie   case   for   any   of   the   statutory   offences   as
alleged.   Therefore,   the   appeals   are   allowed   and   the

impugned   judgment   and   order   of   the   High   Court   dated
30.4.2008 is set aside. The impugned criminal proceedings
are hereby quashed.
……………………….CJI.
.………………………. J.
(DEEPAK VERMA)
.………………………. J.
(Dr. B.S. CHAUHAN)
New Delhi
April 28, 2010

SC grants divorce to husband invoking article 142 of constitution

SC Judgment under article 142 of constitution on divorce granted to husband due to irretrivable breakdown of marriage, and basically the fact that wife withdrew consent on mutual divorce agreement AFTER she had got the property from husband as per agreement.

--------------------------------------------------------
SUPREME COURT OF IND IA
RECORD OF PROCEEDINGS

CIVIL APPEAL NO 5952 OF 2009
(Arising out of SLP (C ) No.14361 of 2007

ANIL KUMAR JAIN Petitioner (s)

VERSUS

MAYA JAIN Respondent (s)

Date : 01/09/2009 This Petition was called on for judgment today.

For Appellant (s) Mr.Shankar Divate, Adv.

For Respondent(s) Mrs. K. Sharda,Adv.

Hon'ble Mr. Justice Altamas Kabir pronounced the

Judgment of the Bench comprising His Lordship, and

Hon'ble Mr. Justice Cyriac Joseph.

Leave granted.

The appeal is allowed in terms of the signed

judgment which is placed on the file.

(Kusum Syal) (Juginder Kaur)
Sr.P.A. Court Master

(Signed Reportable judgment is placed on the file.)
IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.5952 OF 2009
(@ SPECIAL LEAVE PETITION (CIVIL)NO.14361 OF 2007)

Anil Kumar Jain ... Appellant

Vs.

Maya Jain ... Respondent

J U D G M E N T

ALTAMAS KABIR, J.

1. Leave granted.

2. The short point for decision in this appeal is whether a

decree can be passed on a petition for mutual divorce under

Section 13-B of the Hindu Marriage Act, 1955, when one of the

petitioners withdraws consent to such decree prior to the

passing of such decree.

3. In the instant case, the appellant husband was married

to the respondent wife on 22nd June, 1985, according to Hindu

rites. On account of differences between them, they took a
decision to obtain a decree of mutual divorce, which resulted

in the filing of a joint petition for divorce under Section

13-B of the Hindu Marriage Act, 1955, (hereinafter referred

to as `the Act') on 4th September, 2004, in the District Court

at Chhindwara. The same was registered as Civil Suit No.167-

A of 2004. As required under the provisions of Section 13-B

of the aforesaid Act, the learned Second Additional District

Judge, Chhindwara, fixed the date for consideration of the

petition after six months so as to give the parties time to

reconsider their decision. On 7th March, 2005, after the

expiry of six months, the learned Second Additional District

Judge, Chhindwara, took up the matter in the presence of both

the parties who were present in the Court. While the

appellant husband reiterated his earlier stand that a decree

of mutual divorce should be passed on account of the fact

that it was not possible for the parties to live together, on

behalf of the respondent wife it was submitted that despite

serious differences which had arisen between them, she did

not want the marriage ties to be dissolved. On account of

withdrawal of consent by the respondent wife, the learned

Judge dismissed the joint petition under Section 13-B of the

Act.

4. Aggrieved by the order dated 17th March, 2005, passed by

the learned Second Additional District Judge, Chhindwara, the
appellant filed an appeal under Section 28 of the Act in the

High Court of Madhya Pradesh at Jabalpur on 4th April, 2005,

and the same was registered as First Appeal no.323 of 2005.

Even before the High Court, on 12th March, 2007, the

respondent wife expressed her desire to live separately from

the appellant, but she did not want that a decree of

dissolution of marriage be passed. In that view of the

matter, by his order dated 21st March, 2007, the learned

Single Judge dismissed the First Appeal. While dismissing

the appeal, the learned Single Judge took note of the

decision of this Court in similar circumstances in the case

of Ashok Hurra v. Rupa Bipin Zaveri [1997 (4) SCC 226],

wherein this Court granted a decree of mutual divorce by

exercising its extra-ordinary powers under Article 142 of the

Constitution of India.It was indicated that the High Court

did not have such powers and Section 13-B required that the

consent of the spouses on the basis of which the petition

under Section 13-B was presented, had to continue till a

decree of divorce was passed by mutual consent. On that

basis, the learned Single Judge of the High Court, while

dismissing the appeal, observed that the appellant would be

free to file a petition of divorce in accordance with law,

which would be decided on its own merits by keeping in mind

the special fact that the parties were living separately for

about five years and the respondent wife was adamant about
living apart from her husband.

5. It is against the said order passed by the High Court

rejecting the appellant's prayer for grant of mutual divorce

that the present appeal has been filed.

6. Appearing on behalf of the appellant husband, Mr. Rohit

Arya, learned Senior Advocate, contended that prior to the

filing of the petition for mutual divorce, the parties had

entered into a settlement which had been fully acted upon by

the appellant and that under the said agreement valuable

property rights had been transferred to the respondent wife,

which she was and is still enjoying. Mr. Arya submitted that

apart from the above, the attitude of the respondent wife in

openly declaring that she had no intention to remain with the

appellant, was sufficient to indicate that the marriage had

broken down irretrievably and in similar circumstances this

Court had invoked its extra-ordinary powers under Article 142

of the Constitution to grant a decree of divorce under

Section 13-B of the Hindu Marriage Act, even though one of

the parties had withdrawn consent before the passing of the

final decree. Reference was made to the decision in Ashok

Hurra's case(supra), which also involved a petition under

Section 13-B of the Act.
7. However, the facts of the said case were a little

different from those in the instant case. In the said case,

after six months from the date of filing of the petition

under Section 13-B, an application was filed by the husband

alone for a decree of divorce on the petition under Section

13-B of the Act. Not only did the wife not join in the said

application, she made a separate application for withdrawal

of consent given by her for mutual divorce after the expiry

of 18 months from the date of presentation of the divorce

petition. At this juncture, reference may be made to the

provisions of Section 13-B of the above Act and the same is

extracted hereinbelow :-

"13B. Divorce by mutual consent. ­
(1) Subject to the provisions of this Act a petition
for dissolution of marriage by a decree of divorce
may be presented to the district Court by both the
parties to a marriage together, whether such
marriage was solemnized before or after the
commencement of the Marriage Laws (Amendment) Act,
1976, on the ground that they have been living
separately for a period of one year or more, that
they have not been able to live together and that
they have mutually agreed that the marriage should
be dissolved.

(2) On the motion of both the parties made not
earlier than six months after the date of the
presentation of the petition referred to in sub-
section (1) and not later than eighteen months after
the said date, if the petition is not withdrawn in
the meantime, the court shall, on being satisfied,
after hearing the parties and after making such
inquiry as it thinks fit, that a marriage has been
solemnized and that the averments in the petition
are true, pass a decree of divorce declaring the
marriage to be dissolved with effect from the date
of the decree."

As will be clear from the above, sub-Section (1) of

Section 13-B is the enabling Section for presenting a

petition for dissolution of a marriage by a decree of divorce

by mutual consent. One of the grounds provided is that the

parties have been living separately for a period of one year

or more and that they have not been able to live together,

which is also the factual reality in the instant case. Sub-

Section (2) of Section 13-B, however, provides the procedural

steps that are required to be taken once the petition for

mutual divorce has been filed and six months have expired

from the date of presentation of the petition before the

Court. The language is very specific in that it intends that

on a motion of both the parties made not earlier than six

months after the date of presentation of the petition

referred to in sub-Section (1) and not later than 18 months

after the said date, if the petition is not withdrawn in the

meantime, the Court shall, on being satisfied, after hearing

the parties and after making such inquiry as it thinks fit,

pass a decree of divorce declaring the marriage to be

dissolved with effect from the date of the decree.

8. The question whether the consent of both the parties
given at the time of presentation of the petition for mutual

divorce under Section 13-B of the Act must continue till the

decree is finally passed, has been the subject matter of

several decisions of this Court. The issue was raised in the

case of Smt. Sureshta Devi vs. Om Prakash [(1991) 2 SCC 25],

wherein this Court held that the consent given by the parties

to the filing of a petition for mutual divorce had to subsist

till a decree was passed on the petition and that in the

event, either of the parties withdrew the consent before

passing of the final decree, the petition under Section 13-B

of the Hindu Marriage Act would not survive and would have to

be dismissed.

9. Subsequently, however, in Ashok Hurra's case (supra),

doubts were expressed by this Court with regard to certain

observations made in Sureshta Devi's case (supra) and it was

felt that the same might require re-consideration in an

appropriate case. Basing its decision on the doctrine of

irretrievable break-down of marriage, the Hon'ble Judges were

of the view that no useful purpose would be served in

prolonging the agony of the parties to a marriage which had

broken down irretrievably and that the curtain had to be rung

down at some stage. It was further observed that the court

had to take a total and broad view of the ground realities of

the situation while dealing with adjustment of human
relationships. Their Lordships placed reliance on the

decision of this Court in Chandrakala Menon (Mrs.) & Anr. vs.

Vipin Menon (Capt.) & Anr. [(1993) 2 SCC 6], in arriving at

such a conclusion. In the said case, although, indisputably

consent for the petition under Section 13-B of the Act was

withdrawn within a week from the date of the filing of the

joint petition, the Court, in exercise of its powers under

Article 142 of the Constitution, granted a decree of divorce

by mutual consent under Section 13-B of the Act and dissolved

the marriage between the parties in order to meet the ends of

justice, subject to certain conditions. It was also made

clear that the decree would take effect only upon

satisfaction of the conditions indicated therein.

10. The decision in Ashok Hurra's case (supra) to invoke the

power under Article 142 of the Constitution was, thereafter,

followed in several cases based upon the doctrine of

irretrievable break-down of marriage.

11. In keeping with the trend of thought which found

expression in Ashok Hurra's case (supra) another question

arose before this Court in the case of Sandhya M. Khandelwal

vs. Manoj K. Khandelwal [(1998) 8 SCC 369], which had come up

before this Court by way of a transfer petition seeking

transfer of a matrimonial suit. During the pendency of the
transfer petition before this Court, the parties settled

their disputes, and, although, the petition involved a

proceeding under Section 13 of the Hindu Marriage Act, 1955,

keeping in mind the settlement arrived at between the parties

and also the interest of the parties, this Court granted a

decree of divorce by treating the pending application as one

under Section 13-B of the said Act.

12. The views expressed in Ashok Hurra's case (supra) were

echoed in Anita Sabharwal vs. Anil Sabharwal [(1997) 1 SCC

490] and in the case of Kiran vs. Sharad Dutt [(2000) 10 SCC

243]. In the former case decree for mutual divorce was

granted without waiting for the statutory period of six

months. In the latter case, after living separately for many

years and after 11 years of litigation involving proceedings

under Section 13 of the Hindu Marriage Act, 1955, the parties

filed a joint application before this Court for amending the

divorce petition. Treating the said divorce petition as one

under Section 13-B of the Act, this Court, by invoking its

powers under Article 142 of the Constitution, granted a

decree of mutual divorce at the SLP stage.

13. Without referring to the decisions rendered by this

Court in Ashok Hurra's case (supra) and in Kiran's case

(supra), a three Judge Bench of this Court in the case of
Anjana Kishore vs. Puneet Kishore [(2002) 10 SCC 194], while

hearing a transfer petition, invoked its jurisdiction under

Article 142 of the Constitution, and directed the parties to

file a joint petition before the Family Court at Bandra,

Mumbai, under Section 13-B of the Hindu Marriage Act, 1955,

for grant of a decree of divorce by mutual consent, along

with a copy of the terms of compromise arrived at between

the parties. This Court also directed that on such

application being made, the Family Court could dispense with

the need of waiting for six months as required by Sub-Section

(2) of Section 13-B of the Act and pass final orders on the

petition within such time as it deemed fit. This Court

directed the Presiding Judge to take appropriate steps

looking to the facts and circumstances of the case emerging

from the pleadings of the parties and to do complete justice

in the case.

14. Again in the case of Swati Verma (Smt.) vs. Rajan Verma

& Ors. [(2004) 1 SCC 123], which was a transfer petition, the

doctrine of irretrievable break-down of marriage was invoked.

Pursuant to a compromise arrived at between the parties and

leave granted by this Court, an application was filed under

Section 13-B of the Hindu Marriage Act read with Article 142

of the Constitution and having regard to the aforesaid

doctrine, this Court, in exercise of its powers vested under
Article 142 of the Constitution, allowed the application for

divorce by mutual consent filed in the said proceedings, in

order to give a quietus to all litigation pending between the

parties. The same procedure was adopted by this Court in the

case of Jimmy Sudarshan Purohit vs. Sudarshan Sharad Purohit

[(2005) 13 SCC 410], where upon a settlement arrived at

between the parties, a joint petition was filed under Section

13-B of the Hindu Marriage Act and the same was allowed in

exercise of powers under Article 142 of the Constitution.

15. The various decisions referred to above were considered

in some detail in the case of Sanghamitra Ghosh vs. Kajal

Kumar Ghosh [(2007) 2 SCC 220], and the view taken in the

various cases was reiterated based on the doctrine of

irretrievable break-down of marriage.

16. Although, the decision rendered in Sureshta Devi (supra)

was referred to in the decision rendered in Ashok Hurra's

case (supra) and it was observed therein that the said

decision possibly required reconsideration in an appropriate

case, none of the other cases has dealt with the question

which arose in Sureshta Devi's case (supra), namely, whether

in a proceeding under Section 13-B of the Hindu Marriage Act,

consent of the parties was required to subsist till a final

decree was passed on the petition. In all the subsequent
cases, the Supreme Court invoked its extraordinary powers

under Article 142 of the Constitution of India in order to do

complete justice to the parties when faced with a situation

where the marriage-ties had completely broken and there was

no possibility whatsoever of the spouses coming together

again. In such a situation, this Court felt that it would be

a travesty of justice to continue with the marriage ties. It

may, however, be indicated that in some of the High Courts,

which do not possess the powers vested in the Supreme Court

under Article 142 of the Constitution, this question had

arisen and it was held in most of the cases that despite the

fact that the marriage had broken down irretrievably, the

same was not a ground for granting a decree of divorce either

under Section 13 or Section 13-B of the Hindu Marriage Act,

1955.

17. In the ultimate analysis the aforesaid discussion throws

up two propositions. The first proposition is that although

irretrievable break-down of marriage is not one of the

grounds indicated whether under Sections 13 or 13-B of the

Hindu Marriage Act, 1955, for grant of divorce, the said

doctrine can be applied to a proceeding under either of the

said two provisions only where the proceedings are before the

Supreme Court. In exercise of its extraordinary powers under

Article 142 of the Constitution the Supreme Court can grant
relief to the parties without even waiting for the statutory

period of six months stipulated in Section 13-B of the

aforesaid Act. This doctrine of irretrievable break-down of

marriage is not available even to the High Courts which do

not have powers similar to those exercised by the Supreme

Court under Article 142 of the Constitution. Neither the

civil courts nor even the High Courts can, therefore, pass

orders before the periods prescribed under the relevant

provisions of the Act or on grounds not provided for in

Section 13 and 13-B of the Hindu Marriage Act, 1955.

18. The second proposition is that although the Supreme

Court can, in exercise of its extraordinary powers under

Article 142 of the Constitution, convert a proceeding under

Section 13 of the Hindu Marriage Act, 1955, into one under

Section 13-B and pass a decree for mutual divorce, without

waiting for the statutory period of six months, none of the

other Courts can exercise such powers. The other Courts are

not competent to pass a decree for mutual divorce if one of

the consenting parties withdraws his/her consent before the

decree is passed. Under the existing laws, the consent given

by the parties at the time of filing of the joint petition

for divorce by mutual consent has to subsist till the second

stage when the petition comes up for orders and a decree for

divorce is finally passed and it is only the Supreme Court,

which, in exercise of its extraordinary powers under Article
142 of the Constitution, can pass orders to do complete

justice to the parties.

19. The various decisions referred to above merely indicate

that the Supreme Court can in special circumstances pass

appropriate orders to do justice to the parties in a given

fact situation by invoking its powers under Article 142 of

the Constitution, but in normal circumstances the provisions

of the statute have to be given effect to. The law as

explained in Smt. Sureshta Devi's case (supra) still holds

good, though with certain variations as far as the Supreme

Court is concerned and that too in the light of Article 142

of the Constitution.

20. In the instant case, the respondent wife has made it

very clear that she will not live with the petitioner, but,

on the other hand, she is also not agreeable to a mutual

divorce. In ordinary circumstances, the petitioner's remedy

would lie in filing a separate petition before the Family

Court under Section 13 of the Hindu Marriage Act, 1955, on

the grounds available, but in the present case there are

certain admitted facts which attract the provisions of

Section 13-B thereof. One of the grounds available under

Section 13-B is that the couple have been living separately

for one year or more and that they have not been able to live

together, which is, in fact, the case as far as the parties
to these proceedings are concerned. In this case, the parties

are living separately for more than seven years. As part of

the agreement between the parties the appellant had

transferred valuable property rights in favour of the

respondent and it was after registration of such transfer of

property that she withdrew her consent for divorce. She

still continues to enjoy the property and insists on living

separately from the husband.

21. While, therefore, following the decision in Smt.

Sureshta Devi's case we are of the view that this is a fit

case where we may exercise the powers vested in us under

Article 142 of the Constitution. The stand of the respondent

wife that she wants to live separately from her husband but

is not agreeable to a mutual divorce is not acceptable, since

living separately is one of the grounds for grant of a mutual

divorce and admittedly the parties are living separately for

more than seven years.

22. The appeal is, therefore, allowed. The impugned judgment

and order of the High Court is set aside and the petition for

grant of mutual divorce under Section 13-B of the Hindu

Marriage Act, 1955, is accepted. There will be a decree of

divorce on the basis of the joint petition filed by the

parties before the Second Additional District Judge,
Chhindwara, under Section 13-B of the Hindu Marriage Act,

1955, in respect of the marriage solemnized between the

parties on 22nd June, 1985, according to Hindu rites and

customs and the said marriage shall stand dissolved from the

date of this judgment.

23. There will be no order as to costs.

..............................

.....................J.
(ALTAMAS KABIR)

...................................................J.
(CYRIAC JOSEPH)
New Delhi
Dated: 01.09.2009.