Irretrievable Breakdown of Marriage: The Supreme Court’s Power under Article 142

“Irretrievable breakdown of marriage” is not a ground for divorce under the Hindu Marriage Act, 1955. However, the Supreme Court has the power under Article 142 of the Constitution to do “complete justice” in a case before it.

The Constitution Bench ruling

In Shilpa Sailesh v. Varun Sreenivasan, (2023) 14 SCC 231, a Constitution Bench held that:

• the Supreme Court can dissolve a marriage on the ground of irretrievable breakdown in exercise of its power under Article 142;
• the Court may also waive the six-month waiting period for divorce by mutual consent under Section 13B(2) in appropriate cases; and
• this is a discretionary power, to be used with care, considering factors such as the duration of cohabitation, the period of separation, the nature of allegations, previous attempts at settlement, and arrangements for alimony and children.

Only the Supreme Court has this power

The power under Article 142 belongs only to the Supreme Court. Family Courts and High Courts must decide divorce petitions on the grounds available under the applicable statute, such as cruelty, desertion or mutual consent.

Earlier recognition

In Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558, the Supreme Court recommended that Parliament consider adding irretrievable breakdown as a ground for divorce. In Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746, it held that the six-month cooling-off period in mutual consent divorce is directory, not mandatory, and may be waived by the court.

What this means in practice

• Most divorces will still be decided by Family Courts on statutory grounds.
• Long separation and failed mediation may be relevant where a case reaches the Supreme Court.
• Settlement of alimony, custody and property remains central.

Key judgments

• Shilpa Sailesh v. Varun Sreenivasan, (2023) 14 SCC 231.
• Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558.
• Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746.