INSIGHTS
Matrimonial law · Divorce
Irretrievable Breakdown of Marriage: What the Supreme Court Can Consider
A marriage may be described as over in ordinary conversation, but that does not make breakdown a general statutory ground for divorce. The Supreme Court’s constitutional power is a distinct and exceptional matter.
When spouses have lived apart for a long time, a practical question is whether the end of the relationship itself is enough for a divorce decree. The answer depends on the legal route being considered. A court must distinguish a ground created by legislation from the Supreme Court’s separate power to do complete justice in a case before it.
Statutory grounds remain the ordinary route
Under the Hindu Marriage Act, 1955, section 13 sets out grounds on which a decree of divorce may be sought. Irretrievable breakdown is not listed there as an independent ground. A party using that Act cannot treat a long separation, by itself, as a substitute for establishing an applicable statutory ground. Other marriage laws may have different provisions, so this point should not be generalized to every legal framework.
What the Supreme Court considered under Article 142
Article 142(1) of the Constitution gives the Supreme Court power to make an order necessary to do complete justice in a cause or matter before it. In Shilpa Sailesh v. Varun Sreenivasan, a five-judge Constitution Bench answered in the affirmative the question whether the Supreme Court may, in an appropriate case, dissolve a marriage despite one spouse opposing the request. The judgment was delivered on 1 May 2023 and is reported as 2023 INSC 468.
The Court described this as discretionary power, not an entitlement. It may be used where the established facts satisfy the Court that the marriage has completely failed, the parties have no possibility of living together, and continuing the formal legal relationship would be unjustified. The Court must also balance the circumstances and position of the spouse opposing dissolution.
Why this is not an ordinary shortcut
Article 142 is a power of the Supreme Court. The ruling does not add irretrievable breakdown as a new ground to section 13 of the Hindu Marriage Act, nor does it give every matrimonial court authority to dissolve a marriage on that basis alone. A person should not assume that the Supreme Court will exercise the power simply because the parties have been separated or litigation has lasted a long time.
The judgment also addresses the Supreme Court’s powers in matters before it more broadly. Its conclusions should be read in their constitutional and procedural context, rather than as a general rule replacing the statutory process for divorce.
The practical distinction
For most proceedings, the starting point is the governing marriage statute and the grounds it provides. The exceptional Article 142 jurisdiction is a separate question that only the Supreme Court can assess in a matter before it, on the particular facts and with due regard to both parties’ circumstances.
