The Supreme Court on Thursday adjourned by two weeks a plea filed by former Jammu and Kashmir Chief Minister Omar Abdullah against a Delhi High Court order which dismissed his challenge to the High Court circular mandating consent from both parties before a matter could be taken up for final hearing during the Court's restricted functioning as a result of the COVID-19 pandemic.
Abdullah is seeking final hearing of the matrimonial appeal filed by him in 2016 in the Delhi High Court, against the refusal of the Family Court to grant him a decree of divorce against his estranged wife Payal Abdullah. In 2018, Abdullah had filed an application in the appeal saying that he wanted to re-marry and sought divorce on the ground that his marriage had irretrievably broken down.
Today, a bench headed by Chief Justice of India SA Bobde heard the submission of Senior Advocate Kapil Sibal, appearing for Abdullah, who stated that the other party was not giving consent for final hearing despite appearing in the Family Court physically in a related proceeding for maintenance.
To this, the CJI asked whether the Court could coerce someone to give consent to appearing for physical hearing.
"How can we coerce someone to give consent for physical hearing?", CJI asked Sibal.
"If he is appearing physically in another court, he cannot refuse consent", Sibal replied. He said that the respondent was trying to circumvent the HC circular.
Sibal added that it has been 13 years since conjugal relations have stopped between Omar Abdulla and Payal Abdullah and that his client is now over 50 years.
After the brief hearing, the bench said that it will consider the matter after two weeks.
The matter will now be heard after two weeks.
On 26th April, 2020, an office order had been issued by the High Court's Registrar-General for "listing of certain matters with the consent of both sides". This was challenged by Abdullah on the grounds that the circular retained a scope for misuse and therefore, ought to be modified.
It had been submitted by the Petitioner that in Abdullah's case, his estranged wife Payal Abdullah had declined to give consent to the final hearing via virtual proceedings in the matrimonial appeal which had been filed by Abdullah in 2016 against a trial court order which had dismissed his plea seeking grant of decree of divorce.
The matter had been admitted for final hearing in February 2017, and earlier in 2020, Abdullah had moved an application for an early hearing in the case. However, on July 16, 2020, the High Court dismissed his application on the grounds that there was no letter of consent given by the Respondent.
A Division Bench of
Justices Hima Kohli and Subramonium Prasad dismissed Abdullah's challenge observing "refusal on the part of the respondent No. 2 to give her consent for an early hearing of the pending appeal can hardly be a ground for this court to interfere in the Office order dated 26.04.2020".
Consequently, stating that the matter did not warrant any modification and was meritless, the Court proceeded to dismiss the same.
Payal Abdullah's counsel had told the High Court that since the case has voluminous records, virtual hearing was not feasible.
Last month, the Delhi High Court i
ssued a revised circular, starting hybrid functioning with both physical and virtual hearings.
