Irretrievable Breakdown of Marriage and Article 142

Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955, so a Family Court cannot grant divorce on that basis alone. However, in Shilpa Sailesh v. Varun Sreenivasan (decided on 1 May 2023), a five-judge Constitution Bench held that the Supreme Court can dissolve a marriage that has completely broken down, even when one spouse objects, by using its power under Article 142(1) of the Constitution to do "complete justice". That remains the position in 2026: this is a discretionary power of the Supreme Court alone, not a right that a spouse can claim in any court.

This explainer is written for B.A. LL.B. and LL.B. students preparing for family law and constitutional law papers, and for any reader who has heard that "the Supreme Court now allows divorce on breakdown" and wants to know what that really means. Getting the difference between the statute and Article 142 right is what separates a good answer from an average one.

What does the Hindu Marriage Act actually say?

Under the Hindu Marriage Act, divorce is available only on the grounds the Act lists. A student should know three provisions well.

• Section 13(1): fault and other grounds available to either spouse, including adultery, cruelty (clause (ia)), desertion for at least two continuous years (clause (ib)), conversion, unsound mind, renouncing the world and not being heard of as alive for seven years.
• Section 13B: divorce by mutual consent. Both parties present a joint petition to the District Court saying they have lived separately for one year or more, cannot live together and have agreed to dissolve the marriage. Under Section 13B(2), the second motion is made not earlier than six months and not later than eighteen months after the petition is presented.
• Section 14: no divorce petition can be entertained until one year has passed since the date of marriage, unless the court permits it for exceptional hardship or exceptional depravity.

Notice what is missing. There is no clause that says "the marriage has irretrievably broken down". So if a husband in Nagercoil files for divorce on cruelty and fails to prove it, the Family Court must dismiss his petition, however long the couple has lived apart.

What is Article 142 and why does it matter here?

Article 142(1) allows the Supreme Court to pass any decree or order necessary for doing complete justice in any cause or matter pending before it. Only the Supreme Court holds this power. High Courts and Family Courts do not.

The Court has long debated how far this power goes. Older decisions such as Prem Chand Garg v. Excise Commissioner, U.P. (1963) and Supreme Court Bar Association v. Union of India (1998) warned that Article 142 cannot be used to pass orders plainly inconsistent with statutory provisions. Shilpa Sailesh settled the point for matrimonial cases: the Court can depart from both procedure and substantive law, but only within fundamental general and specific public policy, and it must consider the substantive provisions of the statute rather than ignore them.

What did the Supreme Court decide in Shilpa Sailesh (2023)?

The bench comprised Justices Sanjay Kishan Kaul, Sanjiv Khanna (who wrote the judgment), Abhay S. Oka, Vikram Nath and J.K. Maheshwari. The reference had been made by a two-judge bench in 2016. The Court answered three main questions.

1. Waiver of the six-month period: where parties have genuinely settled, the Supreme Court may grant divorce by mutual consent without insisting on the second motion under Section 13B(2), and may also quash connected proceedings, including criminal cases. It will be guided by the factors in Amardeep Singh v. Harveen Kaur (2017) and must be satisfied that consent is free.
2. Divorce despite opposition: in rare cases the Court may dissolve a marriage on irretrievable breakdown even if one spouse opposes. The judgment says this is "not a matter of right" and that the Court must be fully satisfied the marriage is beyond repair, while balancing the circumstances of the objecting spouse.
3. No direct writ petitions: parties cannot file a petition under Article 32 (or Article 226 before a High Court) asking for divorce on irretrievable breakdown.

Factors the Court will look at

Paragraph 33 of the judgment lists illustrative factors. These are worth memorising for exams:

• how long the couple lived together after marriage, and when they last cohabited;
• the nature of allegations made against each other and their families;
• orders passed in the various proceedings and their cumulative effect;
• how many attempts at settlement or mediation were made, and when;
• length of separation (the Court said anything above six years will be a relevant factor);
• economic and social status, education, age and children of the parties;
• whether the other spouse and children depend on the petitioner, and how they will be provided for, including alimony and custody.

How has the Court applied this since 2023?

The Supreme Court continues to use this power case by case. In Pradeep Bhardwaj v. Priya (2025 INSC 852, decided on 15 July 2025), a bench of Justices Vikram Nath and Sandeep Mehta dissolved a marriage under Article 142 even though the Family Court and the Delhi High Court had both rejected the husband's cruelty claim. The couple had separated in 2009, and the Court observed that continuing the marriage would "only fuel animosity and litigation". It also raised maintenance for the wife and minor son. The lesson is that breakdown relief usually comes with financial protection for the dependent spouse and children.

Where do criminal and maintenance cases fit in after 2024?

Matrimonial disputes often run alongside criminal complaints and maintenance claims. From 1 July 2024, the Code of Criminal Procedure stands repealed, and maintenance for wives, children and parents (earlier Section 125 CrPC) is now governed by Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The offence of cruelty by husband or relatives (earlier Section 498A IPC) is now found in Section 85 of the Bharatiya Nyaya Sanhita, 2023. When you read pre-2024 judgments, translate these section numbers. Shilpa Sailesh confirms the Supreme Court may quash such connected proceedings when it dissolves a marriage on settlement.

How should you write about this in an exam?

1. Start with the rule: the Hindu Marriage Act has no breakdown ground; cite Sections 13, 13B and 14.
2. Explain Article 142(1) and its limits, citing Prem Chand Garg and Supreme Court Bar Association.
3. State the three holdings of Shilpa Sailesh (2023) and list the paragraph 33 factors.
4. Mention earlier debate, for example Naveen Kohli v. Neelu Kohli (2006), which discussed the fault theory and breakdown.
5. Give one recent application, such as Pradeep Bhardwaj v. Priya (2025).
6. End with a critical note: the remedy depends on reaching the Supreme Court, which is costly and slow for an ordinary litigant in, say, Kanyakumari District. You can then discuss whether Parliament should add breakdown as a statutory ground.

Sources

• Shilpa Sailesh v. Varun Sreenivasan, judgment PDF (LiveLaw): full text of the Constitution Bench judgment dated 1 May 2023.
• Supreme Court Observer: plain English summary of the 2023 judgment.
• India Code: Hindu Marriage Act, 1955: official text of the Act (Act 25 of 1955), including Sections 13, 13B and 14.
• Pradeep Bhardwaj v. Priya, 2025 INSC 852 (Law Foyer): case note on the July 2025 decision.
• LiveLaw on Section 144 BNSS: commentary confirming Section 125 CrPC is now Section 144 BNSS.