Article 142 of the Indian Constitution: “An analysis for judicial restrain”

Article 142 of the Indian Constitution: “An analysis for judicial restrain”

Article 142 of the Indian Constitution grants the Supreme Court the power to pass any order necessary for doing “complete justice” in any case or matter pending before it. This provision is often seen as a powerful tool in the hands of the judiciary to provide justice in situations where the law is inadequate or insufficient. However, the use of this provision has also been a subject of much debate, with some arguing that it undermines the principle of separation of powers and can lead to judicial overreach. In this blog, we will discuss the need for judicial restraint while exercising the powers granted under Article 142. The bare language of Article 142 is as follows: “ Enforcement of decrees and orders of Supreme Court and unless as to discovery, etc ( 1 ) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or orders so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe

  1. Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself”


The principle of separation of powers is a cornerstone of democracy, which ensures that no branch of the government becomes too powerful. The legislature makes laws, the executive implements them, and the judiciary interprets and applies them. However, in some cases, the law may not be able to provide a remedy for a particular situation. In such cases, the judiciary may have to step in and provide a solution using its inherent powers. Article 142 grants the Supreme Court the power to do just that. However, this power must be exercised with caution and restraint.

One of the main arguments against the use of Article 142 is that it can lead to judicial overreach. The Supreme Court is not meant to legislate or make policy decisions. Its role is to interpret and apply the law. When it uses Article 142 to pass orders that go beyond what is provided in the law, it can be seen as encroaching on the powers of the legislature and the executive. This can be particularly problematic when the orders passed under Article 142 have far-reaching implications that affect the rights and freedoms of citizens.

Another concern with the use of Article 142 is that it can undermine the rule of law. The rule of law requires that all actions of the government, including the judiciary, are subject to the law. When the Supreme Court passes orders under Article 142 that are not based on any legal provisions, it can be seen as arbitrary and unfair. This can erode public trust in the judiciary and the rule of law.

Therefore, it is essential that the Supreme Court exercises restraint while using the powers granted under Article 142. The court must ensure that its orders are based on established legal principles and are not arbitrary or unfair. It should also ensure that its orders do not encroach on the powers of the other branches of the government. This requires a careful balancing of the interests of justice with the principles of democracy and the rule of law.

In conclusion, Article 142 is a necessary provision that allows the Supreme Court to provide justice in situations where the law is inadequate or insufficient. However, its use must be tempered with caution and restraint. The Supreme Court must ensure that its orders are based on established legal principles and do not undermine the principles of democracy and the rule of law. By doing so, it can uphold its role as the guardian of the Constitution and the protector of the rights and freedoms of citizens.

–Surbhi Singla

Associate at Aggarwals & Asssociates, Mohali

Let’s Understand the Difference Between Judicial Separation and Divorce

Let’s Understand the Difference Between Judicial Separation and Divorce

As per the ancient perspective, marriage is a formal ceremony and religious tie that can’t be broken. On the contrary, nowadays majority of the people are of the view that if a person does not want to stay in married life and does not want to extend any longer then he/she should break that knot. But at the same time, it’s not easier for some people to take decisions for separation. Under these circumstances, there is a concept called Judicial separation through which a person of disturbed married life can take some time for self-analysis. Usually, the courts grant time to the parties to re-think their decision of separation.

Many individuals often get confused about the concept of judicial separation and sometimes, they consider it the same as divorce. Although in layman language both terms connote the same meaning, the outcome of both terms in a legal context is different. In fact, judicial separation is a legal remedy to temporarily suspend the marriage. Law allows the couples having strained marital relationships a free space and independence to think about their future path. It is usually a final resort before choosing for a divorce. Section 10 of the Hindu Marriage Act deals with the concept of judicial separation.

We, Aggarwals & Associates, being a Best Law Firm in Chandigarh have a team of the Best Divorce Lawyers in Chandigarh, which is efficient to assist the clients in all kinds of matrimonial disputes.

Now, let’s start to differentiate both concepts and their legal outcomes.

Primarily, the basic difference between the two is their tenure. Like, a divorce is permanent in nature, whereas, the judicial separation is temporary as it relieves the parties from their marital obligations for some limited period of time.

Moreover, a petition for judicial separation can be filed at any time after the marriage. Conversely, as per the Hindu Marriage Act, a divorce petition could be filed only after completion of one year of marriage unless permission has been sought from the higher court under special circumstances. Apart from this, under the judicial separation, the parties can think about reconciliation, but under divorce, they lose this opportunity.


Additionally, upon filing the divorce petition, firstly a chance is given to the parties to mitigate their differences to save the marital knot, and upon failure of the same; an order for divorce is granted. However, in case of filing the judicial separation, the court usually grants the order upon being satisfied with the grounds. The best Divorce Lawyer in Chandigarh can enlighten you in an effective manner in case of such kinds of queries relating to judicial separation and divorce.

Apart from these, one cannot remarry after obtaining the decree of judicial separation, while upon attaining the finality to the divorce decree a person can perform a marriage.

Can divorce be a judicial separation?

No, a divorce can’t be a judicial separation. Yet, judicial separation may convert into divorce. To exemplify, a couple who got the decree for judicial separation may sort out their differences and decided to not have a divorce. But in some cases, they may choose for divorce, therefore, a judicial separation may result in divorce.

Can I file a divorce during the period of judicial separation?

Yes, a divorce petition can be filed at any time after the pronouncement of the decree of judicial separation with the help of Divorce Lawyers in Chandigarh. Howbeit, one has to wait for the completion of one year of marriage in the case where the judicial separation is granted within 12 months of marriage.

Also Read: File Divorce with the help of Divorce Attorney in Chandigarh

Are you in search of Matrimonial Lawyers in Chandigarh?

Are you in search of Matrimonial Lawyers in Chandigarh?

Being the premier law office in Chandigarh Aggarwals & Associates executes its matrimonial practice with utmost sincerity and passion to bring out the best rest results for its clientele. Our team of Matrimonial Lawyers in Chandigarh is well versed with the standards of matrimonial cases to find out the best-fit solutions for litigants. It is quite natural to be under stress while facing litigation especially matrimonial cases as it involves the psychological feelings of a person.

Along with that, it becomes very hard for any individual to maintain positivity during the chronology of stressful events. In that situation, it is the only lawyer who can mitigate your issues up to a certain extent by providing appropriate legal solutions.

Why Matrimonial Lawyer is needed?

This question may come to every layman’s mind that if our law allows a litigant to present his/her matter before the court of law, what is the purpose of hiring an advocate? Although common people can pursue their legal matters on their own, along with that it is also an irrefutable fact that legal matters involve complex and it is the only lawyer who can handle litigation efficiently.

Matrimonial cases

Similarly, matrimonial litigation is tricky and only an efficient lawyer can get you out of this with the desired result. In that context, it is highly recommended to hire the Best Matrimonial Lawyers in Chandigarh like Aggarwals & Associates to avoid unforeseen situations.

Our motive:

While having a sense of accountability our team of Matrimonial Lawyers in Chandigarh is always obligated to serve the clients with a successful outcome and to provide emotional support to them in such difficult phases of matrimonial disputes as well. With the experience of over 14 years in this field, we are able to provide tailored solutions to our prospective clients. Moreover, we believe in the principles of transparency as well as honesty while dealing with the clients rather than giving false assurance to them for the sake of money. Being a reputable law firm in Chandigarh, our objective is to serve clients with an easeful legal journey, and with zero complaints.

What kinds of matters are being dealt by us?

Aggarwals & Associates is a place where all kinds of legal matters are being handled by its efficient team of lawyers. When it comes to a matrimonial part of litigation, there are diverse areas that are being dealt with by us. We head our work in an end number of matrimonial cases whether it is divorce or something else like child custody, maintenance, and quashing of false cases under Section 498-A IPC, etc. Here is the list of our practice areas that fall under the category of matrimonial litigation:-

• Divorce: Contested/Mutual Consent.
• NRI Divorce.
• Regular bail in false cases of 498-A IPC.
• Anticipatory bail in false cases of 498-A IPC.
• Quashing of FIRs under false dowry harassment cases.
• Judicial separation.
• Restitution of conjugal rights.
• Alimony.
• Maintenance under Section 125 of Cr.P.C.
• Interim maintenance.
• Child custody.
• Women cell complaints.
• Domestic violence complaints.
• Annulment of marriage.
• Transfer petitions before Hon’ble Punjab and Haryana High Court and Hon’ble Supreme Court.
• Counseling and mediation in matrimonial cases.

Do You Need The Assistance of A Divorce Lawyer in Chandigarh?

Do You Need The Assistance of A Divorce Lawyer in Chandigarh?

We, Aggarwals & Associates is the best Law firm in Chandigarh put stop to your hunt for Divorce Lawyer in Chandigarh. Finding a lawyer which best suited to your requirements is not an easy task for an individual. You may have many reasons to hire a Divorce Lawyer. We, being one of the prominent Divorce Lawyer in Chandigarh can assist you in your legal issues relating to marriage. Marriage is an institution itself which associated with various aspects of an individual’s life. Ending such an institution may lead to many complications in the life of persons associated. 

A Divorce Lawyer can help you in sorting out these hurdles. It is an important decision to choose the right lawyer who can lead you to the right path in your legal journey. A Divorce Lawyer can be your savior in intricate issues relating to marriage. 

Are you in search of the best-suited Divorce Lawyer?

It is obvious for the person facing matrimonial proceedings to search for a best-suited lawyer who can assist in this complex situation. A divorce is a stressful event and it becomes difficult for an individual to maintain a positive attitude while facing such a situation. A divorce lawyer can assist you in resolving complicated issues relating to marriage. If you are in search of some best Divorce Lawyer then We Aggarwals & Associates being one of the eminent Law firms in Chandigarh are here to assist you in your matter.  

Why you may need assistance?

With the breakdown of the matrimonial institutions, a person may get into a complex situation due to various associated things with this institution. It is natural that parties to a marriage may have children, joint property and investments, etc. Having such things can play a considerable role during the existence of marriage but may turn worsen if parties to the marriage choose to separate their ways.  It is a Divorce Lawyer who can assist you to get out of this complex situation. If you opt for divorce involving assets, child custody, and complex financial issues then you should turn to Divorce Lawyer for legal assistance to avoid future obstacles. A person can get rid of the torment caused by matrimonial issues by choosing a skillful divorce lawyer. 

How we can help you?

We, Aggarwals & Associates is one of the top-notch Divorce Lawyer in Chandigarh that can get you out from this complex situation of divorce proceedings. Our team of Divorce Lawyers in Chandigarh can assist you in marriage-related issues such as divorce proceedings, child custody, restitution of conjugal rights, judicial separation, domestic violence cases, women cell complaints, and other associated issues with marriage.  We assure you to secure your best interest in the legal journey with us. We offer our services in the below-given areas of matrimonial litigation:-

  • Filing and defending contested/mutual consent divorce.
  • Alimony 
  • Interim maintenance 
  • Maintenance under Section 125 of Cr.P.C.
  • Child custody 
  • Filing and drafting of complaints under the Domestic Violence Act 
  • Dowry harassment cases under Section 498-A of IPC
  • Women cell complaints
  • NRI issues related to marriage 
  • Restitution of conjugal rights 
  • Judicial separation 
  • Annulment of marriage 
  • Transfer petitions 
  • Counseling and mediation   

Our mission:

We, Aggarwals & Associates obligate to deal with every client with utmost sincerity by keeping their interest at paramount consideration.  Our efficient team of Divorce Lawyer in Chandigarh maintains trusted relationships with clients by understanding clients’ needs in their overall context of litigation. Our firm strongly believes in professionalism in a client-attorney relationship and maintains a higher standard of confidentiality and morality in dealings. 

Why clients put trust on us?

  • Time-bound and hardworking team.
  • Transparent dealings.
  • Excellent support.
  • Honest advice and fair representation.
  • Strong emphasis on research, editorial, and oratory skills. 
  • Professionalism and impressive reputation.
  • Problem-solving attitude.
Mediation in Matrimonial Cases

Mediation in Matrimonial Cases

“In the middle of every difficulty lies opportunity.”

-Albert Einstein

A person can avoid long run litigation by approaching alternate dispute resolution mechanisms such as mediation, negotiation, arbitration and conciliation. It is better to go with mediation rather than fighting for years and spending money on prolonged litigation. These platforms are becoming popular because of their speedy nature for dispute settlement outside the courtroom. Almost near about 27 million cases are pending in India, out of which approximately 55,000 are related to matrimonial disputes.

Nowadays mediation has become unquestioned dispute resolution mechanism for settlement in matrimonial disputes. There are several advantages attached to mediation such as cost-effective, informal proceedings, mutuality, confidentiality etc. Mediation is favourable mechanism as it safeguards family relationships from traumatic process of typical matrimonial proceedings.

What is mediation?

It is a form of alternative dispute resolution which aims to assist parties to the dispute to reach a settlement. In this process mediator being on impartial position use methods and skills so that parties can reach to an agreement between them.

In simplest terms, mediation is a process in which a neutral third party (mediator) facilitates negotiation between the parties to dispute and assist them to settle the dispute by understanding each other’s point of view. The mediator acts as a facilitator and his/her role is limited to enabling the disputing parties to openly express their grievances in his/her presence so that differences can be recognized clearly and narrow down to acceptable limits.

What is pre-litigation mediation?

A new concept under mediation called pre-litigation mediation is a process whereby parties to the dispute come together to settle the dispute amicably with the help of mediator before initiating legal action. Cases involving matters related to domestic, civil, minor criminal, commercial, consumer, property etc. are covered under the pre-litigation mediation. Howbeit, Indian law doesn’t provide compulsory mediation at pre-litigation stage.

Various High Courts in India such as Delhi High Court, Punjab & Haryana High Court et el. brings the concept of pre-litigation mediation so that disputed parties can reach amicable settlement by skipping the court proceedings.

Types of mediation:

There are two types of mediation, one is private mediation and other is court referred mediation. Where parties voluntarily opt for mediation then it is called private mediation. There are many private mediators in India who help in mediation proceedings. They can be approached without court mandate. On the other hand under Section 89 of the Civil Procedure Code court refers the parties to mediation.

What law says?

There are several legal provisions which promotes outside court settlement. These are enumerated below:-

Section 89 of Civil Procedure Code: – According to this Section alternative dispute resolution mechanism must be followed in the case where there is a possibility of settlement. Howbeit, consent of both parties is necessary to go with mediation.

Section 23(2) and 23(3) of the Hindu Marriage Act: – Under these provisions court is empowered to try reconciliation between the divorce-seeking parties, depending upon the nature and circumstances of a case. The same provisions are enshrined under Section 34(3) and 34(4) of the Special Marriage Act, provides that court must opt for reconciliation at first in the case where parties files for divorce.

It is notable here that, in 2003 the Civil Procedure Code, brings the concept of mandatory mediation in which consent of both parties is not necessary and empowered the court to send the case for mediation when there are chances of settlement and it is required to save the relationship between them.

Therefore, the matrimonial cases are covered under the ambit of mandatory mediation as family relationships are needed to be preserved.

SC verdicts on mediation in matrimonial cases:

In Gaurav Nagpal vs Sumedha Nagpal (Civil Appeal No. 5099 of 2007), SC observed that, “The provisions relating to divorce categorise situations in which a decree for divorce can be sought for. Merely because such a course is available to the adopted, should not normally provide incentive to persons to seek divorce, unless the marriage has irretrievably broken. Efforts should be to bring about conciliation to bridge the communication gap which lead to such undesirable proceedings people rushing to courts for breaking up of marriages should come as a last resort, and unless it has an inevitable result, courts should try to bring about conciliation. The emphasis should be on saving of marriage and not breaking it.”

In K. Srinivas Rao vs D.A. Deepa (Civil Appeal No. 1794 of 2013), SC held that criminal court should direct the parties to explore the possibility of settlement through mediation in cases of 498-A IPC where parties are willing to settle the matter, and issued directions to the Family Courts to make all efforts to settle the matrimonial disputes through mediation. It also ordered that all mediation centres shall set up pre-litigation desks/clinics and give them publicity so that matrimonial disputes can be settled at pre-litigation stage.


Indian laws emphasise to preserve the marriage and make it mandatory for the courts to try reconciliation and settlement between the parties. Matrimonial disputes such as divorce has severe consequences. Mediation has become a popular technique to be used in family matters especially in divorce cases.

A mediator must be aware of all these hardships so that same can be conveyed to the disputed parties which might help them in analysing their decision again. A mediator while settling the dispute should consider the best interest of the parties. It is a duty of the mediator to inform all the consequences to the parties without putting pressure and leave the final decision on the parties.

-Kiranpreet Kaur

Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali

Annulment of Marriage

Annulment of Marriage

There are two ways to legally end a marriage first is “annulment” and second is “divorce”. Annulment is a legal process which erases marriage as if it never took place. Marriage can only be stated null and void if there certain legal requirements are not met at the time of marriage. Such marriage is considered to have been never existed legally.

This process is very different from divorce. The basic distinction between annulment and divorce is that annulment refers to a marriage which is never existed at all in the eyes of law, whereas divorce dissolves the marriage. The major issue in annulment of marriage is that whether valid marriage took place or not. It questions the validity of marriage rather than sustainability.

Who can file?

Any party to the marriage can seek annulment for declaring the marriage as null and void. Aggrieved party to the marriage with whom injustice is caused in terms of the grounds of nullity of marriage under the various laws can approach the court to declare his/her marriage to be null and void.

Where to go?

Parties intended to nullify their marriage can file petition before the concerned District Court. Such petition can be filed at the following places:-

  • Where the marriage in question took place.
  • Where the parties last resided together.
  • Where the petitioner resides or carries out his/her work.
  • Where the respondent resides or carries out his/her work.

What are the grounds for annulment of marriage?

The grounds for annulment of marriage may differ according to various personal laws. Generally, fraud, bigamy, blood relationship, mental incompetency are the grounds. The grounds for annulment enshrined under various personal laws are discussed below:-

Under Hindu Law:-

Void Marriages: – Section 5 of the Hindu Marriage Act provides five conditions for valid marriage between two Hindus. If three conditions out of five are not fulfilled then marriage become void and anyone from the marriage institution can file for annulment of marriage under Section 11 of the Hindu Marriage Act. These three conditions are enumerated below:-

  • Both parties must not have spouse living at the time of marriage i.e. bigamy.
  • Marriage must not be in prohibited degree relationship unless customs and usage of the parties allowed the same.
  • Parties to the marriage must not be Sapindas of each other unless customs and usage permitted the same.

Voidable Marriages: – Section 12 of the Hindu Marriage Act provides conditions for voidable marriages. Voidable marriages are valid until declared null and void by the court. These marriages can be annulled by the decree of nullity under Section 12 of the Hindu Marriage Act, it is upto the parties to continue with the marriage or to annul the marriage by decree of court. The grounds under Section 12 are given below:-

  • Impotency.
  • Incapacity to give valid consent due to unsoundness of mind. Or if capable to give valid consent but suffering from mental disorder of such kind or to such extent that unfit for marriage and for procreation of children.
  • Consent of either of the party has been obtained by force or fraud by concealing material facts.
  • If bride was pregnant by some other person at the time of marriage.

It is marked here that in case of force or fraud the petition for annulment can be filed within period of 1 year from discovery of such fraud or operation of force. Where the spouse gave his/her full consent to live in the matrimonial institution after discovery of fraud or cease of force then petition of annulment of such spouse can’t be entertained.

When the aggrieved spouse didn’t knock the door of court for long period then it is presumed by the court that such spouse has accepted the fraud or fraud.

Under Muslim Law:-

Under Muslim Law there is no declaratory decree in case of void marriage. Even there is no concept of voidable marriages. However, declaratory suits can be filed with regard to status of Muslim Marriage. Any party to the marriage who wants judicial separation in the terms of nullity of the marriage can file suit for declaration under Section 34 of Specific Relief Act. Some grounds are given below under which Muslim marriage is considered to be null and void.

  • Interreligious marriage.
  • Marriage between milk relation or close blood relatives.
  • Marriage with person who renounce Islam or not having faith in the principles of Islam.
  • Marriage during iddat period of woman.
  • Where conditions of marriage are against the principles of Islam.

Under Christian Law:

Indian Divorce Act is application on the Christian marriages. The ground provides under the Act are mentioned below:-

  • Bigamy i.e. either party is still legally married to another person at the time of marriage.
  • Impotency.
  • Mental disorder or insanity.
  • Parties to the marriage are in prohibited degree of consanguinity.

Under Special Marriage Act:

Special Marriage Act applies to people of all religions in India who perform civil marriage. The conditions for annulment of marriage under Act are specified here:-

  • Parties to the marriage are less than marriageable age i.e. 18 years for bride and 21 years for bridegroom.
  • Bigamy.
  • If anyone of the spouses is impotent.
  • Parties to the marriage are related to each other by blood relation.
  • If anyone of the spouses is of unsound mind.

What is the legal status of child born in annulled marriage?

According to Section 16 of the Hindu Marriage Act, the children born out of annulled marriage are legitimate in the eyes of law. A child is entitled to all the rights as if he/she is born in a valid marriage. Howbeit, such children can only claim share in property of their parents not from the extended family. On partition of ancestral property, the property falling in the share of the parents of such child is termed as their absolute and self-acquired property.

What about wife’s rights in annulled marriage?

As per some recent verdicts of Hon’ble Supreme Court, a wife shall have right to claim maintenance from her husband under Section 125 of Cr.P.C., if the marriage is declared null and void because of mischief or the wrongs committed by the husband. However, both the husband and wife are not subjected to any kind of responsibilities or duties towards each other once the marriage got nullity.

In case of T K Surendran vs P Najima Bindu (21st  August, 2019) Hon’ble Supreme Court upheld the judgement of Kerala High Court of granting maintenance to wife under Section 125 of Cr.P.C. by husband whereby marriage between them was declared as null and void due to impotency of the husband. The Apex Court granted maintenance rights to the wife on the ground that the marriage got nullity due to husband’s wrong and mischief.


Marriages in India are governed under various laws applicable on people belonging to different religions. The issues related to the marriages are also different because of different personal laws. Annulment of marriage is one of those issues related to marriage. It is one of the ways to legally end the marriage.

Annulment of marriage is better way than divorce to get rid of the marriage if such marriage falls under category of null and void marriage as specified under various personal laws. It is highly recommended to seek the help of lawman in the process of annulment of marriage in order to avoid unfavorable consequences in the future. If there are more enquiries in your mind, feel free to contact us at [email protected]

-Kiranpreet Kaur

Associate at Aggarwals & Associates, S.A.S. Nagar, Mohali