Irretrievable breakdown of marriage is still not a statutory ground of divorce under the Hindu Marriage Act, 1955. Yet marriages do die beyond revival, and the Supreme Court has long confronted the gap. In Shilpa Sailesh v. Varun Sreenivasan, 2023 INSC 468, decided on 1 May 2023, a five-judge Constitution Bench settled the field: the Supreme Court can, in exercise of its power under Article 142(1) of the Constitution, dissolve a marriage on the ground of irretrievable breakdown, and can waive the procedural requirements of Section 13B — but no litigant can demand this as of right, and the writ jurisdiction cannot be used as a shortcut. Every case on this ground that this chamber's readers encounter ultimately traces back to this judgment.
The questions before the Constitution Bench
The reference arose from transfer petitions in which parties, having settled, wanted their marriages dissolved without the delay of the two-motion procedure under Section 13B HMA. The Bench — Justices Sanjay Kishan Kaul, Sanjiv Khanna, Abhay S. Oka, Vikram Nath and J.K. Maheshwari, with the judgment authored by Justice Sanjiv Khanna — framed the issues around the scope of Article 142(1): could the Supreme Court dissolve a marriage by mutual consent bypassing the statutory procedure, and could it go further and dissolve a marriage on irretrievable breakdown even where one spouse resisted?
The four holdings
When is a breakdown "irretrievable"?
The judgment lists the practical indicia courts weigh: how long the parties cohabited and when they last did; the nature of the allegations each has levelled against the other and their families; the number and character of proceedings between them and the cumulative toll of that litigation; whether reconciliation was attempted and how it failed; and the length of the separation, with a period upwards of six years treated as a relevant indicator that the matrimonial bond is beyond repair. The Court also emphasised the downstream questions that must be answered before dissolution: maintenance and alimony, and the custody and welfare of children.
What the judgment changes in everyday practice
For litigants in Delhi, the practical effect is threefold. First, settled matrimonial disputes that reach the Supreme Court — most commonly through transfer petitions — can be given a complete burial in one order: divorce, alimony, custody and the quashing of cross-cases, without a remand to the Family Court for second motions. Second, in genuinely dead marriages where one side withholds consent for leverage, the Supreme Court can dissolve the marriage even over objection, though it does so sparingly and with full financial and custodial safeguards. Third, the judgment is a caution against creative procedure: writ petitions demanding divorce, or High Court prayers invoking irretrievable breakdown as a freestanding ground, are not maintainable.
| Forum | Irretrievable breakdown available? |
|---|---|
| Family Court, Delhi | Not as a statutory ground; facts may support cruelty or desertion instead |
| High Court of Delhi | No — neither on appeal as a fresh ground nor under Article 226 |
| Supreme Court of India | Yes — discretionary, under Article 142(1), with settlement of alimony, custody and connected cases |
Note: The Marriage Laws (Amendment) Bill that proposed adding irretrievable breakdown to the statute lapsed years ago; unless Parliament intervenes, the position stated in Shilpa Sailesh governs. This article is general information, not legal advice.
Frequently Asked Questions
Can a Family Court or High Court grant divorce on irretrievable breakdown?
No. Irretrievable breakdown is not a ground under Section 13 HMA, and only the Supreme Court possesses the Article 142(1) power exercised in Shilpa Sailesh. Before other courts the petitioner must establish a statutory ground — cruelty, desertion, adultery and the rest — although prolonged separation and dead cohabitation often feed the cruelty analysis in practice.
Can parties directly petition the Supreme Court for divorce on this ground?
No. The Constitution Bench held that parties should not be permitted to circumvent the statutory procedure by invoking the writ jurisdiction under Article 32 (or Article 226 before High Courts) to seek divorce on irretrievable breakdown. The power is discretionary, exercised in proceedings properly before the Supreme Court — typically transfer petitions or appeals arising from matrimonial litigation.
What factors show that a breakdown is irretrievable?
The Court indicated the considerations: the period of cohabitation and when the parties last lived together, the nature and gravity of the allegations exchanged, the cumulative impact of long litigation, failed attempts at reconciliation, and a long separation — six years or more being a relevant indicator — together with arrangements for children and adequate economic provision including alimony.
Can the six-month waiting period in mutual consent divorce be skipped?
Yes, by the Supreme Court under Article 142 where a genuine settlement exists — Shilpa Sailesh confirms the discretion to dissolve the marriage without the second motion. Family Courts also possess a separate, judicially recognised discretion to waive the cooling-off period in appropriate cases, applied on its own settled conditions.