EMERGENCE OF CURATIVE PETITION

The Curative petition is not mentioned anywhere directly in the constitution, it developed over time by the Supreme Court. It is used for curing the defect in the judgment. It is the last constitutional remedy available for an individual whose review petition gets rejected by the same combination of judges who had delivered the verdict.

The Constitution makes a special reference to the Supreme Court’s review power under Article 137 of the Indian Constitution; which states ‘Supreme Court has the power to review any provision made by the parliament or any rule made under article 145 of the Indian Constitution’. Article 137 of the Constitution supports the idea of Curative petition. The Curative petition must be filed within 30 days of the date of the judgment.

The Case ‘Rupa Ashok Hurra v/s Ashok Hurra &Anr (2002)’ has shaped and structured the Curative petition. From this case Curative petition’s emergence took place. The Apex Court reconsidered its judgment by using the curative petition the serious miscarriage of justice was cured. It also said that Curative power derives from Article 142 of the Indian Constitution; “Enforcement of decree & orders of Supreme Court & orders as to discovery etc”, which grants the court power to do justice.

A Curative Petition would be granted if the following conditions are satisfied;

The Curative Petition should be having the certification of a Senior Advocate for the fulfillment of certain requirements;

1.Violation of natural justice (infringement of the fundamental rights which should be always protected no matter what) has happened on the deliverance of the judgment.

2.When a party to the Lis. is not given the notice of the proceeding and the case is continued.

3.Where a learned judge has failed to disclose its connection to the subject matter in proceedings.

4.The parties to suspect prejudice and verdict adversely affect the petitioner.

How can this petition be filed?

1.After an appeal for a review petition against the final verdict is rejected Curative Petition comes to rescue.

2.It should be filed within 30 days of the date of judgment, and the case must rare rather than a regular one.

3.The case will be pursued only when the petitioner can prove that there is a breach of natural justice and the court has given a verdict without him being heard.

4.Curative petition needs to be submitted to the Bench of three highest judges, the judges who passed the judgment in question; it is only when a majority of judges agree that matter needs hearing that it should be put before the same bench.

5.The Bench will ask a Senior Counsel to assist as Amicus Curiae (Friend of the Court) for considering the curative petition.

6.Judges in the chamber would decide on curative, unless a specific request for an open court hearing is allowed.

BIRTH OF CURATIVE PETITION: Rupa Ashok Hurra Vs Ashok Hurra & Anr (2002)

Facts

Earlier both husband and wife had mutually filed for divorce under section 13 (B) of Hindu Marriage Act, 1955 in the Trial Court. The wife withdrew her consent after 18 months, which was not viable under Section 13B (1) & Section 13 B (2) of the Hindu Marriage Act, 1955. Within all of this, the husband got married and had a son; forgetting that he was still not divorced. So, a very adverse punishment of the death penalty was given for which he filed a writ petition to seek redressal.

A writ petition filed under Article 32 of the Constitution, the petitioner is seeking to challenge the validity of the judgment of this Court dated 10-3-1997 whereby the said appeal filed by the respondent was allowed and a decree of divorce for dissolution of the marriage between the petitioner and the respondent was passed under Section 13-B of the Hindu Marriage Act, 1955 and it was declared that all pending proceedings and more particularly those referred to in para 9 of the judgment including the proceedings under Section 494 IPC read with Section 17 of the Hindu Marriage Act, 1955 between the parties shall stand terminated on payment or deposit of the amount ordered by the Court in the said judgment

Constitutional Issue

The Constitutional Bench was questioned that if an aggrieved person is entitled to get any relief against a final judgment of the Supreme Court, after review petition was dismissed either under Article 32 of the Constitution” Right to move Supreme Court by appropriate proceedings for the enforcement of rights” or otherwise.

Ratio

A decree of divorce for dissolution of marriage by mutual consent solemnized between the two parties under Section 13 B of Hindu Marriage Act. It was made clear that the decree was conditional and the appellant had to pay a certain amount in two installments within a certain period and all the criminal charges would also be withdrawn. If the amount is not

paid in time the decree shall not take effect and appeal shall not take into effect and appeal shall stand dismissed.

It was also noted that the High Court 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. The Birth of Curative Petition was seen.

A final judgment was also passed that the Supreme Court can’t be disturbed in an application under Article 32 of the Constitution. It can be invoked if there is a purpose of enforcing fundamental rights. It was also noted under Article 12 of the Constitution that the Superior Courts of Justice do not wall under the ambit of state or authorities.

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