Supreme Court: In a case where the petitioner sought recusal of Justice Dr. DY Chandrachud from hearing an application seeking recall of a previous order of which Justice Chandrachud a part of, the bench of Dr. DY Chandrachud and MR Shah*, JJ has not found any valid and good ground for recusal and has said that,
“Merely because the order might not be in favour of the applicant earlier, cannot be a ground for recusal. A litigant cannot be permitted to browbeat the Court by seeking a Bench of its choice.”
The petitioner had instituted proceedings under Section 12 of the Protection of Women from Domestic Violence Act 2005 against a man with whom she had claimed to have entered into a relationship ‘in the nature of marriage’. She, however, was unable to prove this claim before the Karnataka High Court and hence, the High Court had, on July 31, 2018, noticed that,
“Domestic relationship means, the relationship between two persons who live or have at any point of time, lived together in a shared household. This concept has not been established by the petitioner.”
The petitioner, hence, instituted a case under Article 226 seeking that the decision of the Single Judge of the High Court dated July 31, 2018 “may be declared void/disabled/ recalled”.
It was her case that,
“In order to put forth a claim based on a relationship in the nature of marriage, it is not necessary under the law that neither of the parties should have a subsisting marriage and that notwithstanding the fact that the respondent was in a subsisting marriage, a valid claim under the Act would be maintainable in a situation such as the one which has been set up by the petitioner as the foundation for the grant of relief. She urged that in a situation such as the present, if the respondent who had a subsisting marriage entered into a relationship with her, there is no reason why a woman in the relationship should be left without a remedy.”
Order dated September 3, 2020
The Bench of Dr. DY Chandrachud and KM Joseph, JJ had declined to entertain the writ petition under Article 226 of the Constitution seeking a declaration of the invalidity of the order dated July 31, 2018 while expressly keeping open the rights and remedies available to the petitioner under Article 136 of the Constitution.
It had said,
“A writ petition under Article 226 of the Constitution would not be maintainable in order to challenge an order which has been passed by the High Court in the exercise of its judicial powers. In the present case, the High Court has exercised its revisional jurisdiction. Merely assailing the order as an order which is void would not enable a litigant to avoid the consequences which emanate from the order, by instituting a writ petition under Article 226. A litigant is not without her remedies. An order which has been passed by the High Court can either be assailed in a Letters Patent Appeal (in those cases where the remedy of a Letters Patent Appeal is available in law) or by way of a review (where the remedy of a review is available in a certain class of matters). A remedy is available to a litigant against a judicial order of the High Court passed in revisional proceedings, under Article 136 of the Constitution before this court.”
The Court considered the following factors and dismissed the application at hand:
- earlier one other application was filed by the petitioner to recall order dated 03.09.2020 which was dismissed.
- order dated 03.09.2020 was pronounced after hearing the applicant.
- earlier application for recalling of order dated 03.09.2020 was also dismissed after hearing the petitioner.
The Court also directed that the Registry shall not accept any further miscellaneous application on the subject matter of order dated 03.09.2020 or on the two orders dismissing the application for recall of the order dated 03.09.2020.
[Neelam Manmohan Attavar v. Manmohan Attavar, 2021 SCC OnLine SC 58, decided on 05.02.2021]
*Justice MR Shah has penned this judgment