Since the beginning of human civilisation, the institution of marriage has been considered to be “sacrosanct". It is a sacred union of not two individual beings but of ‘two souls’ forever. The very word “divorce" was considered to be ‘taboo' in the Hindu religion till 1955, when the government of free India passed the Hindu Marriage Act. The Act granted permission to seek divorce on two grounds: first, ‘mutual consent’ (no-fault), and secondly, ‘contested' (fault-based). However, before further proceedings could take off, a cooling period of ‘six to eighteen months' is granted by the courts to the parties to try conciliation with the help of court-appointed counsellors within the court premises itself. The opposite parties to the divorce suit can also take help from outside counsellors like near and dear ones, close relatives, friends and colleagues, also to thrash out the marital disputes arising out of their marriage. Such divorce suits are exclusively instituted in the Family Courts throughout the country, established under the Family Courts Act, 1984, by the respective state governments in consultation with their respective High Courts. Since its inception to date, a spate of divorce petitions has been filed in these courts. According to the Law Ministry, Govt. of India, over 7 lakh (7,13,511) divorce cases were pending in courts at the end of December 2017.1 Needless to say, their number is increasing in dangerous proportions. The legally permissible grounds of divorce available equally to both parties, under statutes like the Hindu Marriage Act, 1955 and the Special Marriage Act, 1954-include 'adultery’', ‘cruelty ', ‘desertion for at least two years', ‘religious conversion', ‘incurable mental disorder', and ‘renunciation of the world'. The specific fault-based grounds available to both parties are mentioned in Section 13(1) of the Hindu Marriage Act, which adds another ground of ‘presumption of death when a spouse has not been heard of as being alive for seven years or more by those who would naturally have heard of them'. Besides this, spouses may also file a joint petition for divorce by ‘mutual consent’ if they have lived apart for one year. From the above, it is clear that an “irretrievable breakdown of marriage” is not explicitly written into statutory law as a standalone ground for divorce. However, it is recognised as a valid reason to dissolve a marriage under specific circumstances.

Irretrievable Breakdown of Marriages and Article 142 of the Indian Constitution

Irretrievable breakdown of marriage is a marriage beyond repair. In such cases, the parties are living in separation for several years or are no longer willing or able to live together and have no prospects of a successful marital relationship. In short, it is a marriage that exists only in the eyes of the law and not in reality. IBM is considered a ground for dissolution of marriage in several countries, but is not a ground available under the Hindu Marriage Act, 1955, and the Special Marriages Act, 1954.

“Article 142: Enforcement of decrees and orders of the Supreme Court and orders as to discovery, etc.-

1. The Supreme Court in the exercise of its jurisdiction may pass such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.
2. Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.”

Therefore, Article 142 empowers the Supreme Court to do “complete justice” in any case which the Court may deem fit. The scope of the relief is as follows:

The Supreme Court can grant appropriate relief-

• where there is some manifest illegality; or
• where there is manifest want of jurisdiction; or
• where some palpable injustice is shown to have resulted.

Such power can be traced, either to-

1. Article 142, or
2. Powers inherent in the court as guardian of the Constitution.2

Application of Article 142 in Earlier Divorce Cases

The Supreme Court has intervened in divorce cases in the past under Article 142 of the Constitution, mainly in the cases of irretrievable breakdown of marriages. Some of them are as follows:

In Naveen Kohli vs. Neelu Kohli (2006), the Supreme Court urged the central government to “seriously consider bringing an amendment in the Hindu Marriage Act, 1955 to incorporate irretrievable breakdown of marriage as a ground for the grant of divorce.”3

Shilpa Sailesh vs Varun Srinivasan (2023) was decided on May 1, 2023.

This case was decided by a five-judge bench of the Supreme Court comprising Chief Justice Sanjiv Khanna, Justice S.K. Kaul, Justice A.S. Oka, Justice Vikram Nath and Justice J.K. Maheshwari. By allowing the irretrievable breakdown of marriage as grounds for divorce, the apex court shifted away from the fault-based theory of divorce. Applying Article 142 for complete justice, the court said it can grant a divorce without sending the parties to a family court, where they usually wait for between six and eighteen months to obtain a decision by mutual consent. The court further said it can rule on a case even when one of the parties isn't agreeable to a divorce. The court has granted divorce to couples in cases where it found unions to be ‘'totally unworkable'’ or “emotionally dead". However, the apex court in this case laid down for the first time a doctrine that moves away from the fault theory of divorce as enshrined in the Hindu Marriage Act, 1955. The court's verdict is important in the sense that it opens the door for ‘divorce jurisprudence’ that does not base itself on partners finding fault with each other's conduct, or the allegations of violence, fraud or cruelty. The judgment finds its strength in the Law Commission's report in 1978 where Justice H.R. Khanna, the author of the report, said, “After the marriage has ceased to exist in substance and in reality, there is no reason for denying divorce. Divorce should be seen as a solution and an escape route out of a difficult situation." Undoubtedly, the judgment marks a key moment in the evolution of family law in India.4

Some of the factors that the bench held, which can be taken into consideration, indicating an irretrievable breakdown of marriage, are:

• The period of time the parties had cohabited after marriage.
• When the parties last cohabited.
• Nature of allegations made by the parties and family members.
• The period of separation should be sufficiently long, and anything above six years or more will be a relevant factor.
• Whether and how many attempts were made to settle the disputes by intervention of the court or through mediation, etc.

The court also ruled that it should be kept in mind while evaluating the above factors, the economic and social status of the parties, the age and qualification of their children, if any, and whether the other spouse and children are dependent, etc.5

Sonal Talpade vs Veerbhan Singh (2026), decided on June 2, 2026.

In this case also, the Supreme Court invoked Article 142 of the Constitution to dissolve a 15-year-old marriage. The two-judge bench of Justices Sanjay Karol and Augustine George Masih even urged the judiciary to offer effective and timely relief to prolonged marital disputes that were “frozen and stale", stating that doing so will help not only the frustrated spouses but also society.6 Divorce in the Indian social perspective is still considered a taboo, and the recent deaths by suicide of two young ladies, Twisha Sharma and Deepika Nagar, who were forced to stay on in violent and abusive marital homes, had to pay a heavy price. ‘The taboo is a collective failure of our imagination, and till it remains, it will continue to claim the psychological, physical and emotional well-being of everyone who wishes to exit a marriage but cannot. Among those who do reach the courts to seek a divorce, the process is marred by inordinate delays, h financial costs and often, acrimony and slander, all of which may result in a “hollowness in life", the judges presciently stated.’7 The court clearly specified that it was not questioning the sanctity of marriage per se, but simply adjudicating on facts. In the instant case, the bench observed that “the parties have lived separately for far too long a period of time and there is no sanctity left in the marriage.”8 The court further observed that keeping alive a marriage which is “already decayed and is decomposing day by day" serves neither the couple nor society. This is an important intervention in what is often one of the most bitter and wearing legal processes. The court has underlined the need for a more nuanced approach to the complex issue of marital breakdown.9

Besides the above-mentioned cases, two more such cases were decided by the Supreme Court under Article 142 of the Constitution involving the issue of irretrievable breakdown of marriage, namely,10

Law Commission Reports on Irretrievable Breakdown of Marriages

1. The report came out in 1978, authored by Justice H.R. Khanna, the head of the Law Commission. The Law Commission of India, in its 71st report, considered the question of whether the Hindu Marriage Act,1955, should be amended to make it a ground. Its recommendation was to insert a new section into the Hindu Marriage Act,1955.
2. In its 2009 report, the Law Commission recommended the inclusion of IBM.

Subsequently, there were two attempts at legislative reforms:

1. The Marriage Law (Amendment) Bill, 2010.
2. The Marriage Law (Amendment) Bill, 2013.

Both of these Bills lapsed afterwards.

Role of Marriage Counsellors

After a divorce petition is filed before the designated family court or at the level of the Constitutional Courts, the courts invariably call the parties and send them to the court-appointed cou to resolve disputes or disagreements between the parties. These counsellors are generally experienced people who try their best to resolve the persisting issues between the parties. They achieve success too in so many cases. But when they fail, the case is listed for further proceedings in the court. As already mentioned above, the procedure before the court is lengthy, expensive and nerve-racking for both parties. Especially in cases where mutual consent is lacking.

The institution of marriage in India has been considered to be sacrosanct from ancient times. The concept has taken firm root and is valid even today. However, in the changing times and social scenario, a definite dent in the existing notion is quite visible now. There are many socio-economic factors for this situation. Now, with the passing of the Hindu Marriage Act in 1955, the provision of divorce has been made available to couples, and several grounds of divorce have been enumerated in the Hindu Marriage Act,1955 and the Special Marriage Act, 1954. Where there is mutual consent to the divorce, the process of divorce is easy and not cumbersome. But where the divorce claim is contested by the opposite party, the whole process of divorce becomes a nightmare. It takes a toll on parties' patience, financial resources, prestige in society, etc. The worst situation is when both parties live separately for a considerable time, and the institution of marriage has become stale and decayed. This is called an irretrievable breakdown of marriage, where no remedy is available under the existing laws. This legal vacuum is filled by the Supreme Court of India by the application of Article 142, which is often termed as "complete justice". In such cases involving irretrievable breakdown of marriage, the Supreme Court has granted relief to the parties by putting a stamp of its authority to terminate the marriage itself and by granting divorce. To quote Justice H.R. Khanna's words as a Law Commission Chairman, in 1978, “Divorce should be seen as a solution and an escape route out of a difficult situation.” In the reports of Law Commissions, a recommendation has been made to insert the provision of irretrievable breakdown of marriage as a ground of divorce. But the central government has not yet taken the call. It is high time to take heed of the drastic and agonising situation of the parties willing to get freedom from the marriage bonds and make appropriate amendments to the existing laws.

Reference

1. The New Indian Express, Feb 8, 2018, https://www.newindianexpress.com
2. The Constitution of India by P.M. Bakshi, Universal Law Publishing Co., New Delhi, Eleventh Edition, 2012.
3. Editorial, The Indian Express, Jun 6, 2026.
4. SC opens a door in divorce law, Editorial, Hindustan Times, May 2, 2023.
5. Raghav Ohri, Can Use Plenary Powers to Grant Divorce: Apex Court, The Economic Times, May 2, 2023.
6. Editorial, Better divorced than suffering, Hindustan Times, June 8, 2026.
7. Ibid.
8. Ibid.
9. Editorial, In law, need to write a new marriage story, The Indian Express, June 6, 2026.
10. Gopalakrishna Suryapaneni vs Anuradha Suryapaneni Maiden (decided on 27 May 2026) and X vs Y (decided on June 3, 2026. 

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