Article 142 in DV Case and section 498 A for NRI in India

Article 142 in DV Case and section 498 A for NRI in India

Article 142(1) of the Constitution of India gives the Supreme Court broad powers to pass any decree or order necessary to do complete justice in any case before it.

In cases involving Domestic Violence (DV) and Section 498A IPC (criminal cruelty against married women), this power allows the Supreme Court to ensure effective and equitable relief beyond strict procedural constraints.

This is especially important in cases involving NRIs (Non-Resident Indians) where complex jurisdictional and enforcement issues arise.

Educational Article for Legal Light Consulting – LLC Lawyer

Article 142(1) in Domestic Violence and Section 498A Cases: What NRIs Should Know

Domestic Violence cases and allegations under Section 498A of the Indian Penal Code are common legal remedies for cruelty and harassment in marriage. NRIs, often facing cross-border challenges, may find relief complicated due to jurisdictional, procedural, and enforcement difficulties.

Article 142(1) empowers the Supreme Court to step in, overriding procedural hurdles to do “complete justice,” potentially including transfer of cases, directions for protection, maintenance, and other necessary orders.

What is Article 142(1) and its role in DV and 498A cases?

• It allows the Supreme Court to pass any order needed to secure justice in pending cases, including those involving domestic violence and cruelty allegations.

• The Supreme Court can exercise this power to protect vulnerable parties, transfer cases between jurisdictions, and ensure enforcement of orders if local courts fail or delay justice.

• This is especially helpful for NRIs who may be unable to pursue regular proceedings or face harassment in local courts.

Section 498A IPC and Domestic Violence Act: Overview for NRIs

• Section 498A criminalizes cruelty by a husband or his relatives, including physical, mental, and economic abuse.

• The Protection of Women from Domestic Violence Act, 2005 (DV Act) offers civil remedies including protection orders, residence rights, and maintenance.

• For NRIs, pursuing these cases involves complexities such as serving summons abroad, enforcing orders across borders, and jurisdictional questions.

How Article 142 Helps NRIs in DV and 498A Cases

• The Supreme Court can transfer cases to a convenient forum through transfer petitions under Article 142 to avoid undue hardship.

• The Court can issue protective, maintenance, or residence orders applicable nationwide, ensuring enforcement even if local courts are uncooperative.

• Article 142 allows the Supreme Court to modify or combine orders for holistic justice addressing both criminal and civil relief to the victim.

Additional FAQs for NRIs About DV, 498A, and Article 142

Q1. Can NRIs file DV or Section 498A cases in India?

Yes. NRIs can file complaints or petitions through proxies or power of attorney holders in India. Courts may take special measures to facilitate remote participation.

Q2. How does the Supreme Court’s power under Article 142 help NRIs?

The Supreme Court can transfer cases to convenient jurisdictions, pass nationwide enforceable orders, and do complete justice when local remedies fail.

Q3. Can DV and 498A cases be transferred between states?

Yes, transfer petitions under Article 142 or Section 406 CrPC allow shifting the case between states or courts for convenience and fair trial.

Q4. Are there challenges in enforcing Indian orders abroad?

Yes, enforcement depends on bilateral treaties and the laws of the foreign country, but Indian courts increasingly coordinate with foreign jurisdictions.

Q5. Can the Supreme Court waive appearance of NRIs in person?

Yes, the Supreme Court and many High Courts permit video conferencing or appearances through advocates for NRIs.

Q6. What documents must NRIs prepare when filing such cases?

Certified copies of marriage, address proof, passports, complaint or petitions in prescribed format, and affidavits—usually attested and possibly consularized for foreign jurisdictions.

Q7. How long do such cases typically take?

It depends on facts and court workload; Supreme Court intervention under Article 142 often expedites matters but is discretionary.

Q8. Can maintenance claims be combined with DV and 498A cases?

Yes, maintenance under Section 125 CrPC or the DV Act can be claimed and enforced alongside criminal and protective proceedings.

How Legal Light Consulting – LLC Lawyer Can Assist NRIs

• Helping draft and file DV and 498A complaints and petitions remotely with proper legal strategy.

• Managing transfer petitions and applications under Article 142 to secure timely hearings and enforcement.

• Advising on documentation, international service, and cross-border enforcement.

• Representing clients before Supreme Court and coordinating with local counsel in different Indian states.

Educational Article for Legal Light Consulting – LLC Lawyer

Article 142(1) of the Constitution of India empowers the Supreme Court to pass such decrees or orders as are necessary for doing complete justice in any matter pending before it.

This constitutional provision grants the Court wide discretionary power to go beyond procedural and substantive laws to achieve equitable outcomes, including in matrimonial disputes where the marriage has irretrievably broken down.

Understanding Article 142(1) and Its Role in Divorce Cases

Article 142(1) authorizes the Supreme Court to pass any decree or order necessary for doing “complete justice” in a cause or matter before it, and such decrees/orders are enforceable throughout India.

This power is unique and expansive, enabling the Court to act as a “problem solver,” especially in cases where rigid application of existing laws might result in injustice.

Distinction Between Supreme Court and Family Court Jurisdiction in Divorce

• Family Court Jurisdiction: Under the Hindu Marriage Act, 1955 (HMA), especially Sections 13 and 13-B, the Family Court is bound by statutory grounds such as cruelty, desertion, mutual consent, etc., to adjudicate divorce petitions.

• It must carefully examine and appreciate the evidence to find whether a party committed a matrimonial offence before granting divorce.

• Supreme Court Jurisdiction under Article 142(1): The Supreme Court, while exercising its power under Article 142(1), is not required to strictly follow the procedural or substantive laws like the HMA.

• It does not delve into detailed allegations to ascertain fault. Instead, it views the relationship holistically to determine whether there is an irretrievable breakdown of the marriage and no scope for reconciliation.

• This power is discretionary and used to balance equities between the parties to do complete justice.

Application of Article 142(1) in Transfer Petitions and Divorce Proceedings

When a transfer petition is pending under Section 25 of the Civil Procedure Code (CPC) to transfer divorce proceedings, parties may file interlocutory applications seeking dissolution of marriage on irretrievable breakdown.

The Supreme Court has held such applications maintainable.

Key considerations include:

• The sacred nature of Hindu marriage as a lifelong commitment, but recognizing that parties may fail to adhere to their marital vows.

• The Court does not focus on assigning fault between parties but on the reality that the marriage has completely failed.

• Absence of children can be a relevant factor, as the dissolution primarily affects only the parties involved.

• The Court’s power under Article 142(1) to dissolve marriage in such procedural contexts enables it to provide finality and complete justice effectively.

Determination of Maintenance and Permanent Alimony

In granting divorce under Article 142(1), the Supreme Court also addresses maintenance or permanent alimony claims, guided by Section 25 of the Hindu Marriage Act.

Important principles include:

• There is no fixed formula for calculating alimony; the quantum depends on a balanced consideration of multiple factors.

• Factors include both parties’ income, the claimant’s reasonable needs, residential rights, and other personal circumstances.

• The alimony amount is not solely determined by the husband’s income or his prior payments but by equitable assessment of the wife’s entitlement.

FAQs (Educational and Not Legal Advice)

Q1. What is Article 142(1)?

It is a constitutional provision granting the Supreme Court broad powers to make orders necessary for doing complete justice in any case before it.

Q2. How does the Supreme Court’s power under Article 142(1) differ from Family Courts?

Unlike Family Courts bound by statutory divorce grounds, the Supreme Court can grant divorce on irretrievable breakdown by looking holistically at the marriage without detailed fault-finding.

Q3. Can the Supreme Court dissolve marriage during a transfer petition?

Yes, the Court can entertain interlocutory applications seeking divorce under Article 142(1) even in pending transfer petitions.

Q4. Does the Supreme Court consider maintenance while granting divorce?

Yes, it evaluates and determines permanent alimony based on multiple factors for equitable relief.

Q5. Is the power under Article 142(1) absolute?

No, it is discretionary, meant to be exercised with caution, and only where complete justice necessitates it.

Conclusion

Article 142(1) of the Constitution of India empowers the Supreme Court to do complete justice, including granting divorce on the ground of irretrievable breakdown without strictly applying statutory grounds under the Hindu Marriage Act.

In pending transfer petitions, the Court can exercise this power to dissolve marriage and fix maintenance, ensuring equitable and final resolution.

Legal Light Consulting – LLC Lawyer assists clients in navigating these complex procedural and substantive issues to strategize effective Supreme Court litigation.

Notes: This article is for educational purposes only and does not constitute legal advice. For case-specific advice, please consult a qualified lawyer or contact Legal Light Consulting – LLC Lawyer.

Disclaimer:

This article is for educational purposes and does not constitute legal advice. NRIs and others should consult qualified legal counsel to handle their specific cases effectively.

This educational overview can help NRIs understand their rights, the special powers of the Supreme Court under Article 142(1), and practical approaches for domestic violence and Section 498A cases in India.