Irretrievable Breakdown of Marriage and Article 142

Indian divorce law, under both the Special Marriage Act and the Hindu Marriage Act, is built on fault and consent. A spouse must prove a ground such as cruelty or desertion, or both must agree. Where a marriage has collapsed but one spouse refuses consent and no fault can be proved, the parties may be locked in a dead marriage for years. Irretrievable breakdown has long been proposed as a ground but never enacted. The Supreme Court has filled the gap under Article 142, and in 2023 a Constitution Bench settled the principles. This note covers the theory, the reform proposals and the present law.

1. The Problem and the Proposals

Figure 1: From recommendation to Article 142

• Theories of divorce. The fault theory grants divorce for a matrimonial offence; the consent theory, for mutual agreement; the breakdown theory, where the marriage has failed beyond repair regardless of fault. The Act reflects the first two only.
• Naveen Kohli v Neelu Kohli (2006). After many years of separation and litigation, the Supreme Court dissolved the marriage and recommended that Parliament make irretrievable breakdown a ground for divorce.
• Legislative attempt. The Marriage Laws (Amendment) Bill, 2010 proposed irretrievable breakdown as a ground in both the Hindu Marriage Act and the Special Marriage Act. It was passed by the Rajya Sabha in 2013 but lapsed.

2. Shilpa Sailesh v Varun Sreenivasan (2023)

• Bench. A five-judge Constitution Bench of the Supreme Court.
• Power under Article 142(1). The Supreme Court may dissolve a marriage on the ground of irretrievable breakdown to do complete justice, even though the statute does not provide the ground.
• Waiver. It may also dispense with the six-month waiting period in mutual consent cases and grant an immediate decree.
• Discretion. Relief is not a matter of right. The power is to be exercised cautiously, on the facts of each case, and may be used even where one spouse opposes the divorce.

Figure 2: Factors the Court considers

3. Who Can Grant It

Figure 3: The Supreme Court and the other courts

• Lower courts. Family courts and High Courts must apply the statutory grounds. They may consider breakdown as part of the facts, for example in assessing cruelty, but cannot grant divorce on breakdown alone.
• Ancillary orders. When dissolving a marriage under Article 142, the Supreme Court usually also settles alimony, custody and pending litigation between the parties.

4. Frequently Asked Questions

Can a family court grant divorce on the ground of irretrievable breakdown?

No. Irretrievable breakdown is not a ground in the Act, and the power under Article 142 belongs only to the Supreme Court. A family court must decide on the statutory grounds, though breakdown may be relevant to the facts, such as in assessing cruelty.

Can the Supreme Court dissolve a marriage on irretrievable breakdown if one spouse objects?

Yes. In Shilpa Sailesh v Varun Sreenivasan (2023), the Constitution Bench held that the Supreme Court may exercise its Article 142 power even where one spouse opposes, though it is a discretionary power to be used cautiously and on consideration of the relevant factors.

5. Related Topics

• Topic 18: Divorce by Mutual Consent, Section 28. The consent route.
• Topic 15: Grounds for Divorce, Section 27(1). The fault route.