TL;DR: Irretrievable breakdown of marriage is not a ground for divorce under the Hindu Marriage Act, 1955, despite decades of Law Commission recommendations to add it. The Supreme Court has filled this gap using its power under Article 142 of the Constitution to do “complete justice,” a power only it holds. The Constitution Bench in Shilpa Sailesh v. Varun Sreenivasan (2023) laid down the factors courts must weigh, and this guide explains the whole pathway, from the Amardeep Singh ruling on waiving the six-month cooling-off period to how a party actually approaches the Supreme Court for this relief.

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Why irretrievable breakdown is not a ground under the Hindu Marriage Act

Section 13 of the Hindu Marriage Act, 1955 lists the grounds on which either spouse can seek a divorce. These include cruelty, desertion, adultery, conversion, mental disorder, and a few others.

Irretrievable breakdown of marriage does not appear anywhere on that list. A marriage can be dead in every practical sense, with the parties separated for years and no prospect of reconciliation, and Section 13 still offers no direct route out.

This creates a real problem for family courts. A judge can find that a marriage has completely broken down, yet be legally powerless to dissolve it if neither party can prove cruelty, desertion, or another enumerated ground.

Section 13B, added later, does allow divorce by mutual consent. But mutual consent requires both spouses to agree, which is precisely what is often missing in a marriage that has broken down irretrievably but where one spouse refuses to let go.

The result is a category of marriages that Indian family law simply does not have a statutory exit for. One spouse wants out, the other resists, and there is no ground under Section 13 that fits the facts.

This is distinct from a spouse seeking to force the other back into the marriage, which is a separate remedy altogether. See restitution of conjugal rights under Section 9 for how that claim works and why it rarely succeeds in a genuinely broken marriage.

Courts have long recognised this gap. The phrase “irretrievable breakdown” appears again and again in judgments, not as a codified ground but as a description of a factual reality the law has not caught up with.

The Law Commission recommendations that never became law

The Law Commission of India first recommended adding irretrievable breakdown as a ground for divorce in its 71st Report in 1978. The Commission’s reasoning was direct: forcing two people to remain legally married when the relationship has permanently and irreparably collapsed serves no social purpose.

That recommendation went nowhere for over three decades. In 2009, the Law Commission returned to the subject in its 217th Report, again urging Parliament to amend the Hindu Marriage Act and the Special Marriage Act to include irretrievable breakdown as an independent ground.

The Marriage Laws (Amendment) Bill, 2010 was actually introduced in the Rajya Sabha to give effect to this recommendation. It proposed inserting a new ground into Section 13 and, notably, also proposed safeguards for wives, including a bar on the husband seeking divorce on this ground without adequately providing for the wife and children.

The Bill lapsed. It was reintroduced in a later Parliament, debated, referred to a Standing Committee, and lapsed again with the dissolution of successive Lok Sabhas.

As of August 2026, no such amendment has been enacted. Irretrievable breakdown remains, formally, not a ground for divorce anywhere in Indian personal law statutes, whether under the Hindu Marriage Act, the Special Marriage Act, or the Indian Divorce Act.

This legislative inertia is precisely what pushed the judiciary into the space. When Parliament will not act, and the human cost of inaction is a spouse trapped in a dead marriage, the Supreme Court found a constitutional tool to step in.

Article 142 and the power to do complete justice

Article 142 of the Constitution of India gives the Supreme Court, and only the Supreme Court, the power to pass any order necessary “for doing complete justice in any cause or matter pending before it.”

This is an extraordinary power. It is not available to High Courts or to any subordinate court, including family courts.

Article 142 has been used across many areas of law, not just matrimonial disputes. It has been invoked to grant relief that no ordinary statute contemplated, precisely because the Constitution designed it as a residual power to close gaps that rigid statutory text leaves open.

In matrimonial cases, the Supreme Court began using Article 142 to dissolve marriages on the ground of irretrievable breakdown well before Shilpa Sailesh formalised the practice. Earlier Constitution Bench and smaller bench decisions had already accepted, in principle, that the Court could grant this relief in appropriate cases even though the ground does not exist in Section 13.

The power is discretionary, not a matter of right. A litigant cannot simply plead “irretrievable breakdown” and expect a decree; the Supreme Court examines the full context of the marriage before deciding whether complete justice requires dissolution.

Because Article 142 sits outside the ordinary appellate hierarchy of divorce litigation, its use in this context has always required the matter to actually be pending before the Supreme Court, typically as a transfer petition, a special leave petition, or an appeal arising from matrimonial proceedings already underway in the lower courts.

Shilpa Sailesh v. Varun Sreenivasan: the Constitution Bench ruling

The uncertainty around when and how Article 142 could be used for irretrievable breakdown was settled by a five-judge Constitution Bench in Shilpa Sailesh v. Varun Sreenivasan (2023).

The Bench was asked to resolve a reference on two connected questions. First, whether the Supreme Court can use Article 142 to grant a divorce on the ground of irretrievable breakdown when the statutory ground of mutual consent under Section 13B is not fully satisfied.

Second, whether the Court can waive the mandatory waiting period built into Section 13B of the Hindu Marriage Act. The Bench answered both questions in the affirmative, subject to safeguards.

The judgment held that the Supreme Court, exercising its Article 142 jurisdiction, can dissolve a marriage on the ground that it has broken down irretrievably even where one spouse does not consent, provided the Court is satisfied that the marriage is, for all practical purposes, dead. This is a discretionary jurisdiction exercised sparingly and only by the Supreme Court itself.

The Bench was careful to note that this jurisdiction does not create a new statutory ground under Section 13 of the Hindu Marriage Act. It remains a constitutional remedy available only when a matter is before the Supreme Court, not a general rule that lower courts can apply.

Shilpa Sailesh is now the leading authority cited whenever a party seeks this relief, and it is the framework every subsequent bench of the Supreme Court has applied when weighing similar petitions.

The factors the Supreme Court weighs before granting this relief

The Constitution Bench in Shilpa Sailesh did not lay down a rigid checklist, but it identified a set of factors relevant to whether a marriage has genuinely broken down beyond repair. These factors are assessed together, not in isolation.

Duration of cohabitation. How long the parties actually lived together as husband and wife before separating is a starting point, though a short cohabitation period alone does not defeat the claim.

Duration and nature of separation. A long period of separation, particularly one running into several years with no attempt at reconciliation, weighs heavily in favour of a finding of irretrievable breakdown.

Nature of allegations made by the parties against each other. Where the litigation has been bitter, involving cross-complaints, criminal cases, and mutual accusations that have poisoned any possibility of the relationship being restored, the Court treats this as evidence the marriage is beyond repair.

Orders passed in litigation and its outcome. The history of the matrimonial litigation itself, including how many proceedings have been filed, in how many forums, and their outcomes, forms part of the picture.

Attempts at reconciliation and their outcome. Whether the parties genuinely attempted mediation or conciliation, and whether those efforts failed, matters.

Period of separation should be sufficiently long. The Bench indicated that separation running for a reasonably lengthy period, often several years, and beyond the possibility of reasonable reconciliation, is a strong indicator.

The Court also gave weight to whether continuing the marriage would cause more harm than ending it, including the impact on any children born of the marriage, and whether one party is using the continued legal status of marriage to harass the other.

Because the assessment is holistic, no single factor is determinative. A marriage with a short cohabitation period but extremely bitter litigation can qualify, just as a marriage with a long separation but some evidence of ongoing reconciliation efforts might not.

Can the six-month cooling-off period be waived: Amardeep Singh v. Harveen Kaur

Section 13B(2) of the Hindu Marriage Act requires that, after both spouses jointly file for divorce by mutual consent, they must wait a minimum of six months (and file the second motion within eighteen months) before the decree can be granted. This cooling-off period is designed to give couples a chance to reconsider.

For years, family courts treated this six-month period as mandatory in every case, with no discretion to shorten it. This created hardship for couples who had already been separated for a long time, had genuinely settled all disputes, and saw no purpose in an additional six-month wait.

The Supreme Court addressed this directly in Amardeep Singh v. Harveen Kaur (2017). The Court held that the six-month waiting period under Section 13B(2) is directory, not mandatory, and can be waived by the concerned court in appropriate cases.

The Amardeep Singh bench laid down conditions for waiver. The statutory period of six months for the second motion is applicable only where a genuine possibility of reconciliation exists.

Where the parties have already been living separately for a period of more than the statutory cooling-off requirement, all efforts at mediation and reconciliation have failed, and the parties have genuinely settled disputes including alimony, maintenance, and child custody, the waiting period can be waived. The Court also required that the waiver application be moved after the first motion under Section 13B(1) and that the case has been pending for a period exceeding eighteen months in total, factoring in prior litigation.

Amardeep Singh is significant because it operates at the level of ordinary family courts, unlike the Article 142 route in Shilpa Sailesh which is exclusive to the Supreme Court. A family court itself can waive the six-month period in a genuine mutual consent case, without any need to approach the Supreme Court at all.

This distinction matters for readers who conflate the two remedies. Waiving the cooling-off period under Amardeep Singh is available in every family court once both spouses already agree to divorce by mutual consent.

Using Article 142 to grant a divorce on irretrievable breakdown, by contrast, is reserved for the Supreme Court and is typically invoked precisely because one spouse does not consent, or because procedural or jurisdictional deadlock makes an ordinary mutual consent petition unworkable.

Why High Courts and family courts cannot grant this relief

A recurring source of confusion for litigants is why they cannot simply ask their local family court, or even a High Court, to grant a divorce on the ground of irretrievable breakdown.

The answer is structural. Article 142 vests its “complete justice” power specifically and exclusively in the Supreme Court of India. No other court in the country, including every High Court exercising writ jurisdiction under Article 226, has an equivalent power.

Family courts and High Courts are bound to decide matrimonial cases strictly within the four corners of the grounds listed in Section 13 of the Hindu Marriage Act, or under the equivalent provisions of the Special Marriage Act, the Indian Divorce Act, or the personal law applicable to the parties. If irretrievable breakdown is not a listed ground, a family court has no statutory basis to grant a decree on that basis alone.

This has been reaffirmed repeatedly. A family court that purports to grant a divorce purely on a finding of irretrievable breakdown, without linking it to an actual statutory ground such as cruelty, risks having that decree set aside in appeal for exceeding its jurisdiction.

Some family courts and High Courts do, in substance, achieve dissolution in genuinely dead marriages by interpreting facts liberally under existing grounds, most commonly by treating prolonged separation and hostility as evidence of mental cruelty. This is a different legal route with the same practical outcome, and it operates entirely within Section 13, not through any inherent power. Readers exploring this angle should look at how prolonged separation is treated as mental cruelty in divorce proceedings.

The practical effect is that a spouse stuck in a marriage that has broken down, where the other side will not consent to a mutual divorce and there is no clean case of cruelty or desertion, genuinely has no remedy before a family court or High Court. The only forum left is the Supreme Court itself, and only in a case that is procedurally before it.

How a party actually approaches the Supreme Court for this relief

Because Article 142 relief for irretrievable breakdown is only available in a matter “pending before” the Supreme Court, a litigant cannot walk in directly and file a petition asking the Court to dissolve a marriage. The relief arises within an existing proceeding, not as a freestanding application.

The common procedural routes

Transfer petition. One of the most frequent ways such matters reach the Supreme Court is through a transfer petition under Section 25 of the Code of Civil Procedure, filed by one spouse to move matrimonial proceedings from a court in one city to a court closer to where they live. When both spouses appear before the Supreme Court in connection with the transfer petition, and it becomes evident that the marriage has broken down and both are willing to end it (even if not through a formal Section 13B petition in the usual form), the Court can invoke Article 142 to grant the divorce there and then.

Special leave petition or appeal. Where a spouse has challenged a lower court or High Court judgment in a matrimonial matter by filing a special leave petition under Article 136, and the matter comes up for hearing, the Supreme Court can use the occasion to examine whether the underlying marriage has broken down irretrievably and grant a decree using Article 142, again typically with the consent of both parties by the time the matter is argued.

Curative or review context. In rarer instances, matters have reached this stage even at the review or curative petition stage of long-running matrimonial litigation.

What the Court typically requires

Even when a matter is properly before it, the Supreme Court does not grant Article 142 relief mechanically. The Shilpa Sailesh Bench and subsequent orders following it typically require the parties to place on record, through affidavits, that they consent to the dissolution, or at minimum that the objecting spouse has been given a full opportunity to be heard and the facts overwhelmingly establish that the marriage is beyond repair.

The Court almost always insists on a completed settlement covering alimony, maintenance, and child custody before finalising the decree, treating the financial and custodial arrangement as inseparable from the decision to dissolve the marriage.

Because reaching the Supreme Court through this route typically follows years of litigation in family courts and High Courts, most parties who eventually obtain this relief have already spent considerable time and cost navigating the ordinary appellate ladder before the constitutional remedy becomes available. This is not, in practice, a shortcut to a faster divorce. It is usually the last stage of a long dispute.

For a broader look at how Article 142 operates across contexts beyond divorce, see this explainer on Article 142 and the Supreme Court’s complete justice power.

graph TD
    A[Marriage breaks down, one spouse does not consent] --> B[Family court proceedings under Section 13]
    B --> C{Statutory ground proven?}
    C -->|Yes: cruelty, desertion, etc| D[Ordinary divorce decree]
    C -->|No, but marriage is dead| E[Appeal or transfer petition reaches Supreme Court]
    E --> F[Supreme Court examines Shilpa Sailesh factors]
    F --> G{Marriage found irretrievably broken?}
    G -->|Yes| H[Article 142 decree, with settlement on alimony and custody]
    G -->|No| I[Matter remanded or dismissed]

The settlement and alimony component

In almost every reported Article 142 divorce on the ground of irretrievable breakdown, the Supreme Court treats the financial settlement as a precondition, not an afterthought. The Court will typically not grant the decree until it is satisfied that the wife, in particular, has been adequately provided for.

How alimony is negotiated in these cases

Because these cases usually arrive at the Supreme Court after years of litigation, the parties frequently negotiate a lump sum permanent alimony figure rather than ongoing monthly maintenance. A lump sum settlement closes the financial relationship between the parties in one payment, which suits the finality that both sides are typically seeking at this stage.

The amount is a matter of negotiation between the parties, often facilitated by their counsel or through mediation directed by the Court, rather than a figure computed under a fixed statutory formula. Courts have referenced broad considerations such as the paying spouse’s income and assets, the standard of living during the marriage, the receiving spouse’s own earning capacity, and the duration of the marriage, but there is no binding mathematical formula equivalent to a maintenance table.

Readers who want a fuller treatment of how alimony figures are actually arrived at in Indian matrimonial law, including for cases outside the Article 142 context, should see this guide on maintenance and alimony calculation in India.

What happens if settlement talks fail

If the parties cannot agree on alimony, the Supreme Court has, in several matters, directed the payment of an amount it considers just before proceeding to grant the decree, effectively deciding the quantum itself rather than leaving it to a separate proceeding. This underscores why parties approaching the Supreme Court for this relief should arrive with realistic, well-prepared settlement terms rather than expecting the Court to simply dissolve the marriage and leave finances for later.

Streedhan and separate property claims

Alimony negotiated at this stage is distinct from a wife’s claim to her streedhan, her personal property including gifts and jewellery received before and during the marriage, which remains her absolute property regardless of how the divorce is finalised. Parties and their counsel should keep these claims separate in the settlement paperwork. For more on this distinction, see streedhan and women’s property rights in divorce.

Custody and property in an Article 142 divorce decree

An Article 142 divorce does not, by itself, decide questions of child custody or the division of marital property. These are typically addressed as part of the same comprehensive settlement that accompanies the divorce, but they are governed by their own legal principles.

Custody

Custody of minor children in these cases is decided, as in any divorce, with the welfare of the child as the paramount consideration, not the convenience of either parent or any entitlement arising from who sought the divorce. Where parties have reached the Supreme Court after years of separation, a de facto custody arrangement, meaning the arrangement the child has actually been living under, often carries significant weight, since disturbing a settled arrangement can itself harm the child.

Where the underlying marriage involved allegations of domestic violence, any existing protection order can also shape how custody and contact are structured in the final settlement. See how protection orders work under the Domestic Violence Act for the relevant framework.

The Supreme Court, when finalising an Article 142 decree, generally incorporates whatever custody and visitation arrangement the parties have agreed to, provided it does not compromise the child’s welfare. Where custody remains contested, the Court has, in some matters, referred that specific question back to the family court for detailed adjudication even while finalising the divorce itself, since custody often requires ongoing supervision that a one-time decree cannot provide.

A related but legally distinct issue is child visitation and how it interacts with maintenance obligations. Readers dealing with this should see why child visitation is treated separately from maintenance.

Property

India does not have a community property regime for marital assets in the way some other jurisdictions do. Property acquired during the marriage generally remains the property of whichever spouse holds title to it, subject to specific contributions and equitable considerations the parties may negotiate into their settlement.

Where the couple owns a jointly titled property, such as a matrimonial home, the settlement accompanying an Article 142 decree commonly addresses whether the property is sold and proceeds split, whether one spouse buys out the other’s share, or whether one spouse retains occupation for a defined period, particularly where children are involved.

Where family settlement documents are used to formalise how assets are divided between family members, including in the context of a matrimonial breakdown, the structure and enforceability of such documents matters. See this guide to drafting a family settlement deed in India for the underlying principles.

None of these property or custody arrangements arise automatically from the grant of an Article 142 divorce. They are negotiated and recorded as part of the same overall settlement the Supreme Court reviews before finalising the decree, and parties should treat drafting this settlement with the same care as any other high-value contract.

How Niyam helps with irretrievable breakdown cases

Irretrievable breakdown litigation sits at the intersection of constitutional law, family law procedure, and negotiated settlement drafting, which makes thorough legal research essential at every stage. Niyam is built to support exactly this kind of layered research.

Research grounded in real judgments. Niyam’s research tool draws on over 72,000 Indian judgments, so when counsel needs to trace how the Supreme Court has applied the Shilpa Sailesh factors across different fact patterns, the platform surfaces the actual precedents rather than generic summaries. This matters because the outcome in these cases turns heavily on how closely a client’s facts match the pattern the Court has previously accepted. See how Niyam’s research tools work.

Drafting the settlement. The joint settlement covering alimony, custody, and property that typically accompanies an Article 142 decree is a detailed legal document, not a template. Niyam’s drafting tools help family law practitioners build these settlement documents on a legally sound footing, drawing on the specific requirements the Supreme Court has laid down in similar cases.

Citator for tracking subsequent developments. Since Shilpa Sailesh, the Supreme Court has applied its framework in numerous subsequent matters, each adding nuance to how the factors are weighed. Niyam’s Citator helps practitioners confirm that the precedents they rely on remain good law and flags newer rulings that refine the position.

Matters management. Given how long these cases typically run before reaching the Supreme Court, tracking every prior order, settlement draft, and procedural filing across multiple courts is a real practical challenge. Niyam’s Matters feature helps family law practitioners keep this history organised in one place.

Irretrievable breakdown work often overlaps with broader family law practice, including child custody disputes and, in cross-border marriages, NRI divorce and overseas asset issues. Niyam’s research capabilities extend across this full range of family law practice.

Frequently asked questions

No. It is not listed as a ground under Section 13 of the Hindu Marriage Act, 1955, or under the Special Marriage Act. The Supreme Court has granted divorce on this basis using its special constitutional power under Article 142, but this is a discretionary remedy available only in the Supreme Court, not a codified statutory ground any family court can apply.

What is Article 142 of the Constitution?

Article 142 empowers the Supreme Court of India to pass any order necessary to do complete justice in a matter pending before it. This power is unique to the Supreme Court and is not available to High Courts or subordinate courts, including family courts.

What did the Supreme Court decide in Shilpa Sailesh v. Varun Sreenivasan?

A five-judge Constitution Bench held in 2023 that the Supreme Court can use Article 142 to dissolve a marriage on the ground of irretrievable breakdown, even without both spouses’ consent in the strict Section 13B sense, and can waive the statutory waiting period, provided it is satisfied on the facts that the marriage is beyond repair.

Can I ask my family court to grant a divorce on the ground of irretrievable breakdown?

No. Family courts must decide matrimonial cases within the grounds set out in the applicable statute. They have no power equivalent to Article 142, so they cannot grant a decree purely on a finding that the marriage has broken down, unless that finding is tied to an actual statutory ground such as cruelty.

What is the six-month cooling-off period under Section 13B?

Section 13B(2) of the Hindu Marriage Act requires spouses seeking a mutual consent divorce to wait at least six months between the first and second motions before the court can grant the decree, giving them time to reconsider.

Can the six-month waiting period be waived?

Yes. The Supreme Court held in Amardeep Singh v. Harveen Kaur (2017) that this period is directory, not mandatory, and family courts can waive it where the parties have already been separated for a substantial period, mediation has failed, and all disputes including alimony and custody have been genuinely settled.

Is waiving the cooling-off period the same as an Article 142 divorce for irretrievable breakdown?

No. Waiving the Section 13B period under Amardeep Singh is available in any family court once both spouses already agree to a mutual consent divorce. Using Article 142 for irretrievable breakdown is a separate, Supreme Court exclusive remedy, typically used precisely when one spouse does not consent.

What factors does the Supreme Court consider before granting divorce under Article 142 for irretrievable breakdown?

The Shilpa Sailesh Bench identified factors including the duration of cohabitation, the length of separation, the nature and bitterness of allegations exchanged, the history and outcome of litigation between the parties, and the failure of any reconciliation attempts. These are weighed together rather than applied as a rigid checklist.

Can one spouse be granted a divorce on this ground even if the other opposes it?

Yes, in principle. The Supreme Court has granted this relief even where one spouse initially objects, if it is satisfied on the overall facts that the marriage is dead beyond any realistic prospect of revival and that continuing the legal tie serves no purpose.

How does a case actually reach the Supreme Court for this relief?

Most commonly through a transfer petition filed under Section 25 of the Code of Civil Procedure to shift matrimonial proceedings between cities, or through a special leave petition or appeal challenging a lower court’s decision in a matrimonial matter. The Article 142 relief is granted within that pending proceeding, not through a standalone application.

Does the Supreme Court decide alimony as part of an Article 142 divorce?

Yes, typically as a precondition. The Court generally requires the parties to reach or place on record a settlement on alimony, and in several matters has itself directed a specific amount where the parties could not agree, before finalising the decree.

Is the alimony in these cases a lump sum or monthly maintenance?

Most settlements accompanying an Article 142 divorce are structured as a one-time lump sum payment, since the parties are usually seeking complete finality after years of litigation, though the exact structure remains a matter of negotiation between the parties.

Does an Article 142 divorce decide child custody automatically?

No. Custody is addressed as part of the accompanying settlement, guided by the child’s welfare as the paramount consideration. Where custody remains genuinely contested, the Supreme Court has in some cases referred that specific question back to the family court even while granting the divorce itself.

What happens to jointly owned property after an Article 142 divorce?

Property division is not automatic. It is typically negotiated as part of the overall settlement, commonly resulting in either a sale with proceeds split, a buyout of one spouse’s share by the other, or a defined period of continued occupation, particularly where children live in the property.

Can this relief be used for marriages under the Special Marriage Act as well?

The Article 142 jurisdiction is a constitutional power tied to the Supreme Court’s role, not to a specific personal law statute. Parties married under the Special Marriage Act have, in appropriate matters before the Supreme Court, sought and been granted similar relief, though each case turns on its own facts.

Is there a minimum period of separation required before this relief can be granted?

The Constitution Bench did not fix a rigid minimum number of years. It treated a sufficiently long period of separation as one important factor among several, with several years of separation typically strengthening a claim, but no bright-line threshold has been laid down.

Can a lower court’s finding of cruelty or desertion be relevant to an Article 142 petition?

Yes. Where a family court or High Court has already recorded findings on the bitterness of the relationship, the conduct of the parties, or a partial finding of cruelty that fell short of a full decree, those findings often form part of the record the Supreme Court considers when assessing whether the marriage has broken down irretrievably.

Does obtaining this relief require both spouses to physically appear before the Supreme Court?

Not always. Many such matters are resolved through affidavits, video conferencing appearances, and submissions by counsel, particularly where the parties are based in different cities or countries, though the Court retains discretion to require a personal appearance if it considers it necessary.

What is the practical difference between pursuing a fault based divorce and waiting for an Article 142 remedy?

A fault based divorce under Section 13, if the facts genuinely support cruelty, desertion, or another ground, can usually be pursued directly in a family court without needing to reach the Supreme Court at all. The Article 142 route is generally the last resort for marriages that do not neatly fit an existing ground but have nonetheless collapsed in substance, and it typically follows years of prior litigation rather than replacing it.

Will Parliament eventually add irretrievable breakdown as a statutory ground?

The Marriage Laws (Amendment) Bill has been introduced in Parliament more than once with this objective but has lapsed each time without being enacted. As of August 2026, there is no indication of a fixed timeline for this amendment to be revived and passed.

Key takeaways

  • Irretrievable breakdown of marriage is not a statutory ground for divorce under the Hindu Marriage Act or the Special Marriage Act.
  • The Law Commission recommended adding it as a ground in 1978 and again in 2009, and a Bill to this effect has lapsed in Parliament more than once.
  • The Supreme Court fills this gap using Article 142 of the Constitution, a power to do complete justice that only it holds.
  • The Constitution Bench in Shilpa Sailesh v. Varun Sreenivasan (2023) confirmed this power and laid down the factors courts weigh, including duration of separation, bitterness of litigation, and failed reconciliation attempts.
  • Amardeep Singh v. Harveen Kaur (2017) separately allows any family court to waive the six-month cooling-off period under Section 13B(2) in genuine mutual consent cases, a distinct remedy from the Article 142 route.
  • High Courts and family courts cannot grant divorce purely on irretrievable breakdown because Article 142 is exclusive to the Supreme Court.
  • This relief only arises in a matter already pending before the Supreme Court, typically through a transfer petition, special leave petition, or appeal.
  • A completed settlement on alimony is generally treated as a precondition to the decree, often structured as a lump sum payment.
  • Custody follows the child’s welfare standard and property is divided by negotiated settlement, not by any automatic rule.

For family law practitioners handling long-running matrimonial disputes, getting the settlement, the precedent research, and the procedural pathway right matters as much as the final decree itself.

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