A marriage can end in fact long before it ends in law. Spouses may have lived apart for a decade, exhausted every attempt at reconciliation and fought each other through numerous cases, and yet remain legally married because the statute provides no suitable ground, or because one party withholds consent. Since the Constitution Bench decision in Shilpa Sailesh v. Varun Sreenivasan (2023), and a series of decisions in 2026, the position is clearer. This article sets out the statutory framework, the remedy the Supreme Court has developed under Article 142 of the Constitution, and its limits.
1. The statutory framework
Under the Hindu Marriage Act, 1955, a decree of divorce is available only on a ground the Act recognises. Section 13(1) lists them, among them adultery, cruelty, desertion for a continuous period of at least two years, conversion, unsoundness of mind or mental disorder, renunciation of the world and presumption of death after seven years. Section 13(2) gives a wife certain additional grounds, and Section 13(1A) allows either spouse to petition where there has been no resumption of cohabitation, or no compliance with a decree of judicial separation or restitution of conjugal rights, for one year. The Special Marriage Act, 1954 contains a broadly similar scheme.
The common feature of these grounds is fault. The petitioner must plead and prove that the other spouse committed a matrimonial wrong. This has two consequences. First, a divorce petition becomes a contest about blame, with allegations that are difficult to withdraw and that tend to deepen the hostility between the parties. Second, the fault requirement is reinforced by Section 23(1)(a), under which a court may grant relief only if the petitioner is not taking advantage of his or her own wrong or disability. A spouse who left the matrimonial home may find that the very desertion on which the other side relies is the conduct that bars relief to the one who left. Section 14 adds a further restriction: ordinarily, no petition may be presented within one year of the marriage without leave of the court.
2. Divorce by mutual consent
Section 13B was introduced in 1976 to provide a non-fault route. Spouses who have lived separately for a year or more, and who have mutually agreed that the marriage should be dissolved, may present a joint petition. The court may pass a decree on a second motion, which cannot be made earlier than six months after the petition and not later than eighteen months. The statutory pause was meant as a cooling-off period.
The Supreme Court has softened the rigidity of that period. In Amardeep Singh v. Harveen Kaur (2017) it held that the six-month period is directory and may be waived where the marriage has clearly collapsed and there is no real prospect of reconciliation. But the route depends on consent at both stages, and the courts have long held that either party may withdraw consent at any time before the decree is passed. Where one spouse will not agree, Section 13B is unavailable.
3. Irretrievable breakdown: a ground without a statute
Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act. The Law Commission of India has recommended that it be introduced, in its 71st Report (1978) and again in its 217th Report (2009). A Bill to amend the Hindu Marriage Act and the Special Marriage Act to that effect was passed by the Rajya Sabha in 2013, but it lapsed and has not been revived. In Naveen Kohli v. Neelu Kohli (2006), the Supreme Court urged the Union to consider the change, while also recognising that, absent legislation, it could not simply add a ground to the Act.
4. Article 142 and the decision in Shilpa Sailesh
Article 142(1) empowers the Supreme Court to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. The Court had on occasion used this power to dissolve marriages, but without a settled principle. That was resolved in May 2023 by a five-judge Bench in Shilpa Sailesh v. Varun Sreenivasan, which held that the Supreme Court may dissolve a marriage under Article 142 on the ground of irretrievable breakdown, and may also dispense with the Section 13B waiting period. Three propositions bear emphasis.
• The power is discretionary. A party cannot claim it as of right. It is to be exercised with great care and caution, only where the Court is satisfied that the marriage has shattered beyond repair, and it may be exercised even where one spouse opposes.
• It is guided by factors. The Bench identified illustrative considerations, including the duration of the marriage, the period of separation, the nature of the allegations made by each side, the outcome of earlier proceedings, and whether efforts at settlement or mediation have been made and have failed. They are not a checklist.
• It is available only in the Supreme Court. A party cannot file a writ petition under Article 32 in the Supreme Court, or under Article 226 in a High Court, simply to obtain a divorce on this ground. The power is exercised in a matter already pending before the Supreme Court.
5. Decisions in 2026
Three decisions this year show the principles being applied.
Neha Lal v. Abhishek Kumar (20 January 2026; 2026 INSC 73). The parties had cohabited for only 65 days, had been separated for more than ten years, and were party to over forty proceedings against each other. On the wife’s application under Article 142, the Court held that the marriage had irretrievably broken down and dissolved it despite the husband’s opposition. Significantly, it declined to quash pending perjury proceedings, reasoning that they concern the integrity of the administration of justice and not merely the private dispute. A decree of divorce ends the marriage, but it does not extinguish liability for statements made on oath.
Rinku Baheti v. Sandesh Sharda. The matter came before the Court as a transfer petition seeking to move a divorce case from Bhopal to Pune. The husband applied under Article 142. Relying on Shilpa Sailesh, the Court took into account the brief period of cohabitation, successive divorce petitions filed soon after the marriage, multiple civil and criminal proceedings involving the parties and their families, and mediation that had failed before the Supreme Court Mediation Centre and a retired Judge of the Court. It dissolved the marriage.
Judgment of 2 June 2026. In an appeal by a wife against a divorce sought by her husband, both government doctors who had lived apart for over fifteen years, the Court dissolved the marriage under Article 142. It observed that no sanctity remained in the marriage, and called on the judiciary not to keep “stale and frozen” marriages alive.
Taken together, these decisions indicate that prolonged separation, failed mediation and a history of repeated litigation weigh heavily with the Court, and that the opposing spouse’s refusal to consent will not by itself prevent a decree. The inquiry is directed to the state of the marriage and not to apportioning blame.
6. Limits of the remedy
Access. Because the power belongs to the Supreme Court alone, a litigant whose petition is pending in a family court cannot ask that court to apply Article 142. The litigant must first have a proceeding before the Supreme Court, by way of an appeal, a special leave petition or a transfer petition, and then apply there. The cost and distance involved put the remedy out of reach of many. The restriction is defensible for an exceptional power, but it means a gap in the statute is being filled by a remedy few can use.
Consequential relief. A decree under Article 142 dissolves the marital status. It does not dispose of the incidents of the marriage. Permanent alimony and maintenance (Section 25 of the Act), custody and access, and questions of property and stridhan remain to be resolved, and the Court will normally expect them to be addressed. Where the objecting spouse is the weaker party, the fairness of a divorce granted over objection depends largely on whether those matters are dealt with at the same time. Criminal and perjury proceedings may also survive, as Neha Lal shows.
7. Practical implications
• Record the separation. Dates, addresses and every attempt at reconciliation or settlement are relevant to the factors the Court considers.
• Engage with mediation. Failed mediation is repeatedly treated as evidence of breakdown, and a refusal to participate may weigh against a party.
• Be measured in what is filed. A long trail of cross-complaints may itself be read as evidence that the marriage is over, and allegations made on oath carry exposure that can outlast the divorce.
• Treat Article 142 as exceptional. Section 13 and Section 13B remain the first recourse, and the Court will want to know why they are inadequate.
• Address financial terms early. Maintenance, alimony, children and property should be settled with, not after, the decree.
8. Conclusion
The Supreme Court has, in effect, supplied through Article 142 a ground of divorce that Parliament has not enacted. Its approach has been careful, but a remedy that depends on a bench’s discretion and on access to the Supreme Court is no substitute for a clear statutory rule that every family court can apply. Until the legislature acts, practitioners should advise clients with both the availability and the limits of Article 142 in mind.