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EXCEPT SUPREME COURT NO OTHER COURT HAVE RIGHT TO WAIVE STATUTORY REQUIREMENTS

EXCEPT SUPREME COURT NO OTHER COURT HAVE RIGHT TO WAIVE STATUTORY REQUIREMENTS

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In Anil Kumar Jain v. Maya Jain (2009) 10 SCC 415, Supreme Court held that an order of waiving the statutory requirements can be passed only by Supreme Court in exercise of its powers under Article 142 of the Constitution. The said power is not vested with any other court.
In Anil Kumar Jain v. Maya Jain (2009) 10 SCC 415, Supreme Court held that an order of waiving the statutory requirements can be passed only by Supreme Court in exercise of its powers under Article 142 of the Constitution. The said power is not vested with any other court.

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06/29/2011

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IN THE SUPREME COURT OF INDI
CIVIL APPELLATE JURISDICTION 
CIVIL APPEAL NO.5952 OF 2009(@ SPECIAL LEAVE PETITION (CIVIL)NO.14361 OF 2007) Anil Kumar Jain Appellant Vs. Maya Jain RespondentJ U D G M E N T ALTAMAS KABIR, J.
1.Leave granted.2.The short point for decision in this appeal iswhether a decree can be passed on a petition for mutualdivorce under Section 13-B of the Hindu Marriage Act,1955, when one of the petitioners withdraws consent tosuch decree prior to the passing of such decree.3.In the instant case, the appellant husband wasmarried to the respondent wife on 22
nd
June, 1985,according to Hindu rites. On account of differencesbetween them, they took a decision to obtain a decree of
 
mutual divorce, which resulted in the filing of a jointpetition for divorce under Section 13-B of the HinduMarriage Act, 1955, (hereinafter referred to as ‘theAct’) on 4
th
September, 2004, in the District Court atChhindwara. The same was registered as Civil SuitNo.167-A of 2004. As required under the provisions ofSection 13-B of the aforesaid Act, the learned SecondAdditional District Judge, Chhindwara, fixed the date forconsideration of the petition after six months so as togive the parties time to reconsider their decision. On7
th
March, 2005, after the expiry of six months, thelearned Second Additional District Judge, Chhindwara,took up the matter in the presence of both the partieswho were present in the Court. While the appellanthusband reiterated his earlier stand that a decree ofmutual divorce should be passed on account of the factthat it was not possible for the parties to livetogether, on behalf of the respondent wife it wassubmitted that despite serious differences which hadarisen between them, she did not want the marriage tiesto be dissolved. On account of withdrawal of consent bythe respondent wife, the learned Judge dismissed thejoint petition under Section 13-B of the Act.4.Aggrieved by the order dated 17
th
March, 2005, passed
 
by the learned Second Additional District Judge,Chhindwara, the appellant filed an appeal under Section28 of the Act in the High Court of Madhya Pradesh atJabalpur on 4
th
April, 2005, and the same was registeredas First Appeal no.323 of 2005. Even before the HighCourt, on 12
th
March, 2007, the respondent wife expressedher desire to live separately from the appellant, but shedid not want that a decree of dissolution of marriage bepassed. In that view of the matter, by his order dated21
st
March, 2007, the learned Single Judge dismissed theFirst Appeal. While dismissing the appeal, the learnedSingle Judge took note of the decision of this Court insimilar circumstances in the case of Ashok Hurra v. RupaBipin Zaveri [1997 (4) SCC 226], wherein this Courtgranted a decree of mutual divorce by exercising itsextra-ordinary powers under Article 142 of theConstitution of India. It was indicated that the HighCourt did not have such powers and Section 13-B requiredthat the consent of the spouses on the basis of which thepetition under Section 13-B was presented, had tocontinue till a decree of divorce was passed by mutualconsent. On that basis, the learned Single Judge of theHigh Court, while dismissing the appeal, observed thatthe appellant would be free to file a petition of divorcein accordance with law, which would be decided on its own

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