Author: Hitanshu Joshi
LL.B 3rd Year
BVDU, New Law College, Pune
The concept of Curative Petition evolved after the judgment of the Supreme Court in the landmark judgment of Rupa Ashok Hurra vs. Ashok Hurra and Ors. A Curative Petition is the petition filed in the Supreme Court after the Review Petition against the final judgment of the Supreme Court has been dismissed. Before the judgment of Rupa Ashok Hurra vs. Ashok Hurra and Ors., no petition was to be entertained by the Supreme Court once the Review Petition against the final judgment of the Supreme Court has been dismissed. It was after this case that the Supreme Court evolved the concept of Curative Petition to re-consider its judgments in exercise of its inherent power to prevent abuse of its process and to cure a gross miscarriage of justice.
This article explains how a matrimonial dispute led to the evolution of the Curative Petition in India.
Petition for Divorce by Mutual Consent
The marriage between Ashok Hurra and Rupa Hurra was solemnized on 03-12-1970. There started some differences between the couple and finally, the wife left the matrimonial home on 30-06-1983. Thereafter, the couple started living separately. On 21-08-1984, the couple filed a joint application before the City Civil Court, Ahmedabad as contemplated under Section 13B of the Hindu Marriage Act, 1955 for divorce by mutual consent. The application for divorce by mutual consent was presented before the Registrar, City Civil Court, Ahmedabad, who admitted the application on the same day and kept it over till six months.
On 15-04-1985, the husband placed an application before the Court for hearing. But the matter got keep on adjourning a couple of times for some or the other reason. Meanwhile, the husband remarried with one Sonia on 18-08-1985 and a male child named Prasad was born out of the said wedlock. On 10-10-1985, the learned Advocates for the parties jointly requested for time as attempts were being made for reconciliation.
On 27-03-1986, the wife withdrew her consent stating in the application that “dissolution of their marriage is not in the interest of the applicants and that there is full scope for a reunion and there is every possibility to save their marriage.” To this, the husband filed a reply denying the contention and raising a plea that withdrawal of consent is not according to law and consent cannot be revoked. The wife filed an affidavit in rejoinder and pointed out that it is open for her to revoke the consent and she is legally entitled to withdraw her consent.
The learned Judge of the City Civil Court, after hearing the parties, following an observation of the Karnataka High Court with respect to consent, reported in AIR 1983 Karnataka 235 in the case of K. Krishnamurthy Rao v. Kamalakshi, taking a view that “the consent must continue to decree and must be valid, subsisting consent when the case is heard”, dismissed the H.M.P. by judgment and order dated 17-10-1986 (pages 153 to 163), holding that when the wife has revoked her consent, it is not open for the Court to grant a decree of divorce, i.e., divorce by mutual consent under Section 13B of the Act.
Civil First Appeal before Gujrat High Court
The Husband preferred a Civil First Appeal before Gujrat High Court against the order passed by the trial Court dismissing the H.M.P.
The learned single Judge of Gujrat High Court on 15-03-1996 allowed the appeal by quashing and setting aside the aforesaid order passed by the trial Court and granted a decree of dissolution of marriage solemnized between the appellant/husband and the respondent/wife with effect from the date of the petition.
The conclusion of the learned single Judge is that – (i) the wife had right to revoke or withdraw her consent at any time before the decree of divorce is passed, (ii) but such revocation must be based on some sustainable ground.
The learned single Judge proceeded on the footing that marriage between the parties is irretrievably broken and reunion is not at all possible; when the husband has already remarried one Sonia and has a male child out of said wedlock, no useful purpose will be served by refusing a decree of divorce but it would be just, legal, proper to grant a decree of dissolution of marriage between the parties, and granted the same from the date of petition.
Letters Patent Appeal (Division Bench) – Rupa Ashok Hurra vs Ashok G. Hurra – (1996) 3 GLR 668
Aggrieved by the order of the learned single Judge of Gujrat High Court, the wife preferred a Letters Patent Appeal before the Division Bench of Gujrat High Court.
Issue: Can a Party withdraw or revoke the Consent given under Section 13B (2) of the Act?
Held: The Division Bench of Gujrat High Court on 09-09-1996 held that –
- There is not a single case where the consent was withdrawn before the stage of inquiry and yet the Court passed a decree of divorce with effect from the date of the application.
- There is not a single case where either the husband or wife remarried during the subsistence of the first marriage and yet the Court has passed a decree of dissolution of the first marriage which would benefit a party who has committed a wrong.
- On the contrary, the Apex Court has refused to grant a decree on the ground of irretrievable breakdown of marriage as during the pendency of the appeal husband remarried.
- The paramount consideration should be that a party who comes to the Court with clean hands should be assisted. Power may be exercised in favour of the party who comes to the Court with clean hands.
- In the instant case, law, as made clear by the Apex Court, does not permit the dissolution of a marriage because the consent is withdrawn.
- The Learned trial Judge had no occasion to make an inquiry as provided under the Hindu Marriage Act, 1955 because consent was withdrawn by the wife.
- A Court, when sitting in appeal, has to consider whether the judgment delivered by the trial Court is in accordance with law or not.
- No doubt, in a given case, subsequent event may be considered and also the conduct of the parties may be taken into consideration.
- In the instant case, on the contrary, after the trial Court dismissed the petition, wild allegations are made against the wife, about which the learned single Judge has also observed in his judgment.
- Not only that, there is admission of the husband before the learned single Judge wherefrom it is clear that the husband can be said to have committed a wrong which could provide a cause to the wife for obtaining a decree of divorce under Section 13(1) (i-a) of the Hindu Marriage Act, 1955 but that cannot constitute a ground for the husband to get a divorce from the wife.
- The wife withdrew her consent even before the trial Court could make an inquiry.
- The trial Court was, therefore, right in dismissing the application submitted under Section 13B of the Hindu Marriage Act, 1955.
- There is no requirement in law that the party withdrawing consent must give reasons or the withdrawal must be based on some reasonable grounds. Irretrievable breakdown of marriage by itself is not a sufficient ground for dissolution of a marriage, as held by the Apex Court.
- As the result, the Division Bench of Gujrat High Court quash and set aside the order passed by the learned single Judge granting the decree of dissolution of marriage solemnized between the parties herein and the order passed by the trial Court was restored.
Special Leave Petition- Ashok Hurra vs Rupa Ashok Hurra- (1997) 4 SCC 226
Aggrieved by the order of the Division Bench of Gujrat High Court, the husband preferred a Special Leave Petition in the Supreme Court of India, wherein, the Supreme Court on 10-03-1997 granted a conditional decree of divorce for dissolution of marriage by mutual consent.
- The High Court was swayed by the fact that the appellant/husband has not come to Court with clean hands; in that, he married during the pendency of the proceedings.
- The High Court expressed that factors such as the marriage is dead and has broken down irretrievably, that there was no chance of re-union, that there were allegations and counter-allegations made by the parties, that the parties were residing separately for nearly 13 years–each one of the above factors by itself (individually) may not afford a ground for divorce by mutual consent.
- The cumulative effect of the various aspects in the case indisputably point out that the marriage is dead, both emotionally and practically, and there is no chance at all of the same being revived and continuation of such relationship is only for name-sake and that no love is lost between the parties, who have been fighting like “Kilkenny cats” and there is a long lapse of years since the filing of the petition and existence of such a state of affairs warrant the exercise of the jurisdiction of the Supreme Court under Article 142 of the Constitution and grant a decree of divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 and dissolve the marriage between the parties, in order to meet the ends of justice, in all the circumstances of the case subject to certain safeguards.
- Appropriate safeguard or provision for the respondent/wife to enable her to have a decent living should be made. The appellant/husband is a well to do person and is a Doctor. He seems to be affluent being a member of the medical fraternity. But his conduct during litigation is not above board. The suggestion or offer of a lump sum payment of rupees four to five lakhs, towards provision for wife, is totally insufficient, in modern days of high cost of living and particularly for a woman of the status of the respondent.
- Subject to the fulfilment of the following conditions, a decree of divorce for dissolution of marriage by mutual consent solemnized between the appellant/husband and the respondent/wife is passed under Section 13B of the Hindu Marriage Act, 1955.
- The decree is conditional and shall take effect only on payment or deposit in the Supreme Court of the entire sum of rupees ten lakhs by the appellant/husband to the respondent/wife.
- The appellant/husband shall pay or remit the amounts ordered before the said date, in two installments – a sum of Rs. 5 lakhs + Rs. 50,000/-(the assessed cost) on or before 10-08-1997 and the balance of Rs. 5 lakhs (rupee five lakhs) on or before 10-12-1997. The assessed costs required to be paid by the appellant/husband shall be Rs. 50,000/-towards the entire proceedings to the respondent/wife.
- If default is made in the payment of the installment due on 10-08-1997 together with cost, then also, the decree shall not take effect and the appeal shall stand dismissed. If the amounts ordered herein are duly deposited in the Court by the appellant/husband, the respondent/wife can withdraw the said amounts, without further orders.
On 06-08-1997, a Review Petition filed by the wife was dismissed by the Hon’ble Supreme Court
Writ Petition – Rupa Ashok Hurra vs Ashok Hurra And Anr. – (1999) 2 SCC 103
A writ petition was filed by the wife where she sought to challenge the validity of Judgment of the Supreme Court whereby a decree of divorce for dissolution of marriage between Petitioner/Wife and Respondent/Husband was passed under Section 13B of the Hindu Marriage Act, 1955.
Contention by the wife: The petitioner/wife submitted that in the said Judgment the Hon’ble Supreme Court has exceeded the jurisdiction vested in it under Article 142 of the Constitution and the said Judgment, being without jurisdiction, is nullity and the validity of the same can be assailed in a petition under Article 32 of the Constitution.
Contention by the husband: The respondent/husband raised a preliminary objection regarding the maintainability of the writ petition and has pointed out that a review petition was dismissed by order dated August 6, 1997.
In a case where a party has availed the remedy of filing a review petition against the Judgment, it is not open to the said party to challenge the said Judgment by filing a writ petition under Article 32 of the Constitution.
In the facts and circumstances of the instant case, it is not a fit case in which the Hon’ble Supreme Court should entertain a petition under Article 32 of the Constitution because after the dismissal of the review petition the respondent/wife has contracted another marriage and has also adopted a child.
Placed for consideration before a Constitution Bench: Whether the Judgment of the Hon’ble Supreme Court dated 10-03-1997 can be regarded as a nullity and whether a writ petition under Article 32 of the Constitution can be maintained to question the validity of a Judgment of the Hon’ble Supreme Court after the petition for review of the said Judgment has been dismissed are questions which need to be considered by a Constitution Bench of this Court. In the circumstances, it is directed that this matter may be placed for consideration before a Constitution Bench.
Writ Petition – Rupa Ashok Hurra vs Ashok Hurra & Anr. – (2002) 4 SCC 388
Issue: Whether an aggrieved person is entitled to any relief against a final judgment or order of the Supreme Court, after dismissal of Review Petition, either under Article 32 or otherwise?
- The very nature of writ jurisdiction is a supervisory jurisdiction over inferior Courts/Tribunals.
- On principle a writ of certiorari cannot be issued to co-ordinate courts and a fortiori to superior courts.
- A High Court cannot issue a writ to another High Court; nor can one Bench of a High Court issue a writ to a different Bench of the same High Court; much less can writ jurisdiction of a High Court be invoked to seek issuance of a writ of certiorari to the Supreme Court.
- Though, the judgments/orders of High Courts are liable to be corrected by the Supreme Court in its appellate jurisdiction under Articles 132, 133 and 134 as well as under Article 136 of the Constitution, the High Courts are not constituted as inferior courts in our constitutional scheme.
- Therefore, the Supreme Court would not issue a writ under Article 32 to a High Court.
- Neither a smaller Bench not a larger Bench of the Supreme Court can issue a writ under Article 32 of the Constitution to any other Bench of the Supreme Court.
- Article 32 can be invoked only for the purpose of enforcing the fundamental rights conferred in Part III and it is a settled position in law that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III.
- The superior courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution.
Counsels adopted an unusual unanimous approach:
- The jurisdiction of the Supreme Court under Article 32 of the Constitution cannot be invoked to challenge the validity of a final judgment/order passed by the Supreme Court after exhausting the remedy of review under Article 137 of the Constitution read with Order XL Rule 1 of the Supreme Court Rules 1966.
- However, all the learned counsel for the parties and also the learned Attorney-General adopted an unusual unanimous approach to plead that even after exhausting the remedy of review under Article 137 of the Constitution, an aggrieved person might be provided with an opportunity under inherent powers of the Supreme Court to seek relief in cases of gross abuse of the process of the Court or gross miscarriage of justice because against the order of this Court the affected party cannot have recourse to any other forum.
Contentions by the Counsels:
- Shanti Bhushan, the learned senior counsel appearing for the petitioner, submitted that the principle of finality of the order of the Supreme Court had to be given a go-by and the case re-examined where the orders were passed without jurisdiction or in violation of the principles of natural justice, violation of any fundamental rights or where there has been gross injustice. He invited our attention to Order XLVII, Rule 6 of the Supreme Court Rules, 1966 and submitted that this Court had inherent jurisdiction and that cases falling in the aforementioned categories should be examined under the inherent jurisdiction of this Court. According to the learned counsel Article 129 would not be available to correct a judgment of this Court but he pleaded that as from the order of the Apex Court no appeal would lie, therefore, an application, by whatever name called, which should be certified by a senior counsel in regard to existence of permissible ground, has to be entertained on any of the aforementioned grounds to correct a judgment of this Court. He advocated: (i) for oral hearing on such an application and (ii) for hearing by a Bench of Judges other than those who passed the order on the ground that it would inspire confidence in the litigant public.
- K.K.Venugopal, the learned senior counsel, submitted that the provisions of Order XLVII, Rule 6 of the Supreme Court Rules, is a mere restatement of the provisions of Article 137 of the Constitution and that the inherent jurisdiction of the Supreme Court might be exercised to remedy the injustice suffered by a person. He suggested that a Constitution Bench consisting of senior judges and the judges who passed the order under challenge, could be formed to consider the application seeking correction of final orders of the Supreme Court. He added that to ensure that floodgates are not opened by such a remedy, an application for invoking the inherent power of the Supreme Court might require that it should be certified by a senior advocate and in case of frivolous application the petitioner could be subjected to costs. He pleaded for laying down guidelines in regard to entertaining such an application.
- Anil B. Divan, the learned senior counsel, submitted that Article 129 of the Constitution declared the Supreme Court to be a court of record so it would have inherent powers to pass appropriate orders to undo injustice to any party resulting from judgments of the Supreme Court.
- The learned Attorney-General argued that the remedy provided under Article 32 of the Constitution would not be available to a person aggrieved by the final order of the Supreme Court. He nonetheless supported that in case of gross miscarriage of justice, the Supreme Court ought to exercise its inherent powers by entertaining an application to examine the final order of the Supreme Court, even when a review was rejected, in the rarest of the rare cases. According to him where the order was passed without jurisdiction or in violation of the principles of natural justice, the case would fall in the rarest of the rare cases. He, however, contended that an order of the Supreme Court could not be said to violate fundamental rights conferred under Part III of the Constitution and, therefore, on that ground no relief could be claimed. He submitted that under Article 137 read with Order XL Rule 1 of the Supreme Court Rules, 1966 review of an order of the Supreme Court is provided which will be considered by the same Bench unless the same Judges are not available by reason of demitting the office. He submitted that for correction of a final judgment of the Supreme Court on the ground of lack of jurisdiction or violation of principle of natural justice, a curative petition could be entertained which might be heard by an appropriate Bench composed of the senior Judges as well as Judges who passed the order.
- Rajiv Dhavan, the learned senior counsel, argued that since the Supreme Court is the creature of the Constitution so the corrective power has to be derived from the provisions conferring jurisdiction on the Supreme Court like Articles 32 and 129-140; such a power does not arise from an abstract inherent jurisdiction. The corrective power must be exercised so as to correct an injustice in a case of patent lack of jurisdiction in a narrow sense, not in the Anisminic’s broader sense, and gross violation of natural justice. He submitted that the Supreme Court has inherent power to correct its own judgment where a party through no fault of his own has been subjected to an unfair procedure giving scope for bias.
- Ranjit Kumar, the learned senior counsel, advocated that in case of manifest illegality and palpable injustice the Supreme Court under its inherent powers could reconsider final judgment/order passed by the Supreme Court. He submitted that the composition of the Bench might include senior-most Judges along with the Judges who passed the order, if available. He also submitted that while considering such curative petitions on the ground of manifest illegality and palpable injustice, in the rarest of rare cases, factors like the doctrine of stare decisis and the finality and the certainty of the law declared by this Court are required to be kept in mind. He stressed that the power of re-consideration of an earlier decision had to be very restricted; when the power of review is very limited and circumscribed, the exercise of inherent power for correcting the manifest illegality and palpable injustice after dismissal of the review petition has to be much narrower than the power of review.
The Hon’ble Supreme Court held with regard to Curative Petition:
- Judges of the highest Court do their best, subject of course to the limitation of human fallibility, yet situations may arise, in the rarest of the rare cases, which would require reconsideration of a final judgment to set right miscarriage of justice complained of. In such a case, it would not only be proper but also obligatory both legally and morally to rectify the error.
- The duty to do justice in these rarest of rare cases shall have to prevail over the policy of certainty of judgment as though it is essentially in public interest that a final judgment of the final court in the country should not be open to challenge yet there may be circumstances, as mentioned above, wherein declining to reconsider the judgment would be oppressive to judicial conscience and cause perpetuation of irremediable injustice.
- The Supreme Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in the exercise of its inherent power.
- Except when very strong reasons exist, the Supreme Court should not entertain an application seeking reconsideration of an order of the Supreme Court which has become final on dismissal of a review petition.
- A petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of principles of natural justice in that he was not a party to the lis but the judgement adversely affected his interests or, if he was a party to the lis, he was not served with notice of the proceedings and the matter proceeded as if he had notice and (2) wherein the proceedings a learned Judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner.
- The petitioner, in the curative petition, shall aver specifically that the grounds mentioned therein had been taken in the review petition and that it was dismissed by circulation. The curative petition shall contain a certification by a Senior Advocate with regard to the fulfilment of the above requirements.
- The curative petition has to be first circulated to a Bench of the three senior-most Judges and the Judges who passed the judgment complained of, if available. It is only when a majority of the learned Judges on this Bench conclude that the matter needs hearing that it should be listed before the same Bench (as far as possible) which may pass appropriate orders. It shall be open to the Bench at any stage of consideration of the curative petition to ask a senior counsel to assist it as amicus curiae. In the event of the Bench holding at any stage that the petition is without any merit and vexatious, it may impose exemplary costs on the petitioner.
- Insofar as the present writ petitions are concerned, the Registry shall process them, notwithstanding that they do not contain the averment that the grounds urged were specifically taken in the review petitions and the petitions were dismissed in circulation.
- Rupa Ashok Hurra vs Ashok G. Hurra – (1996) 3 GLR 668
- Ashok Hurra vs Rupa Ashok Hurra- (1997) 4 SCC 226
- Rupa Ashok Hurra vs Ashok Hurra And Anr. – (1999) 2 SCC 103
- Rupa Ashok Hurra vs Ashok Hurra & Anr. – (2002) 4 SCC 388