The concept of irretrievable breakdown of marriage essentially refers to a situation where the marital relationship has completely broken down and there is no chance of reconciliation or restoration of the marriage. While the Hindu Marriage Act does not specifically recognize irretrievable breakdown as a ground for divorce, the courts have recognized the need to consider this aspect in certain cases to do justice.
Courts have the inherent power under Article 142 of the Indian Constitution to pass orders to do complete justice. However, the exercise of this power is discretionary and is based on the facts and circumstances of each case. If the court finds that the marriage has irretrievably broken down, it may invoke its powers under Article 142 to grant relief to the parties.
Article 142(1) of the Constitution of India reads:
“142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.— (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make 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.”
This means the couple can no longer live together as man and wife. Both partners must prove to the court that the marriage broke down so badly that there is no reasonable chance of getting back together.
Till date, the prevailing laws in India regarding the issue of divorce have not recognized a situation where the spouses are facing a situation that despite the fact that they live under the same roof, their marriage is equivalent to a separation.
That is, there is still no codified law for irretrievable breakdown of marriage. The Hindu Marriage Act recognizes few grounds for dissolution of marriage in Section 13 but, with the change in the social mores and in view of the changing nature of marriage in the society, the supreme court has shown special concern over the matter of making irretrievable breakdown of marriage as a ground for divorce.
Section 13B of the Hindu Marriage Act, 1955 provides for the provision of divorce by mutual consent. It states that a petition for dissolution of marriage can be presented before the court by both spouses jointly, if they have been living separately for a period of one year or more, and they have mutually agreed to dissolve the marriage. There are certain conditions to follow:
- Divorce must have been mutually agreed upon by both parties to the marriage.
- Immediately before the petition was presented, they had to have been residing apart for at least a year.
- They must have been unable to cohabitate at this time as husband and wife.
- Before the family court, they must jointly submit a petition for divorce with a joint declaration that they have mutually decided to end the marriage.
- Following the petition’s submission, the court will interview the parties to confirm that they agree to the divorce.
- The court will also make an effort to get the parties together and give them the chance to change their minds.
- The court may issue a divorce judgement if it is satisfied that the parties’ mutual consent to end the marriage was not gained via coercion, fraud, or undue influence.
On May 1, 2023, the Supreme Court of India issued a significant ruling in the case of Shilpa Sailesh v. Varun Sreenivasan, in which it was debated whether “irretrievable breakdown of marriage” could qualify as a basis for divorce even though it is not a legally recognised ground and whether the six-month cooling-off period could be waived under the authority granted by Article 142 of the Indian Constitution.
History And Facts
Due to irretrievable damage to the marriage, the matter was brought before the Supreme Court in 2014 under the provisions of divorce by mutual consent, or Section 13-B of the Hindu Marriage Act.
The Supreme Court granted the divorce in 2015 because it was deemed to be a dead marriage. It was also noted that there were numerous other cases with the same issue pending before the family court, so the Supreme Court, using its inherent power under Article 142, took the case over to be decided by a Constitutional bench of the Supreme Court.
Senior Advocate Indira Jaising, Dushyant Dave, and Meenakshi Arora were appointed by a two-judge Supreme Court bench in June 2016 as amicus curiae, and the case was referred to a Constitution Bench.
The case was considered by a Constitutional Bench chaired by Justice Sanjay Kishan Kaul, Justice J.K. Maheshwari, Justice Sanjiv Khanna, Justice A.S. Oka, and Justice Vikram Nath.
- Whether the Court can waive the six-month cooling-off period required under Section 13B(2) of the Hindu Marriage Act?
- Whether the Court has powers to dissolve marriage under Article 142 of the Constitution of India?
- Whether ‘Irretrievable breakdown of marriage’ can be a ground for dissolution of the marriage as this ground is not statutorily recognized by the Hindu Marriage Act
It was argued that the Court should be given the authority under Article 142 to dissolve marriages when the parties have irretrievably fallen apart. As a result, the court has the authority to rely on any rule that stands in the way of full justice, in this case the act’s designated cooling-off time.
Another viewpoint was that the irreparable dissolution of a marriage might be viewed as a kind of cruelty, particularly mental abuse. As a result, even in the absence of a specific justification for the irretrievable breakup of the marriage, the court may award a divorce on the basis of cruelty.
Also, Article 142 of Indian Constitution is not bound by statutory law and can embody justice, equity, and good conscience. This means that even if there is no explicit provision in the law for irretrievable breakdown of marriage, the Court can still grant divorce for the interests of justice.
The Supreme Court while dealing with the issues analysed various judgments. In the case of Naveen Kohli the Court had held that although “irretrievable breakdown of marriage” is not a valid ground for divorce under the Hindu Marriage Act, 1955, it still is a valid ground for divorce. While dealing with another case of “irretrievable breakdown of marriage”, the Court held that merely living apart from each other is not enough evidence and the parties must put forth astute evidence to claim irretrievable breakdown of the marriage (and that no reconciliation is possible) as a valid ground for divorce. In another case the Court held that in cases wherein one spouse withdraws from matrimonial bond and further refuses to perform marital obligations without any valid reasons, the same can be considered as a valid ground for “irretrievable breakdown of marriage” and thereby divorce. The Court thereafter in 2013 drew the distinction that living separately is not a condition that needs to be satisfied to seek divorce on the ground of “irretrievable breakdown of marriage”.
The Court also dealt with waiving off the mandatory six month cooling off period after the first motion for divorce wherein the parties have mutually agreed to dissolve the marriage on the ground of “irretrievable breakdown of marriage”. Following up on this principle in the case of Amit Kumar the Court held that where “no useful purpose would be served by making the parties wait, except to prolong their agony”, the Court held the marriage to be “a nonstarter” as the parties only lived for three days with each other. Hence, the waiting period (as given under Section 13(B)(2) of the HMA, 1955) of six months was waived and divorce was agreed.
The Court stated as follows:
“….this Court, in exercise of power under Article 142(1) of the Constitution of India, has the discretion to dissolve the marriage on the ground of its irretrievable breakdown. This discretionary power is to be exercised to do ‘complete justice’ to the parties, wherein this Court is satisfied that the facts established show that the marriage has completely failed and there is no possibility that the parties will cohabit together, and continuation of the formal legal relationship is unjustified. The Court, as a court of equity, is required to also balance the circumstances and the background in which the party opposing the dissolution is placed.”
According to Article 142(1) of the Indian Constitution, the court has the discretionary right to dissolve a marriage on the grounds of irretrievable collapse. This power must, however, be used with extreme care and attention.
The marriage must be proven to be emotionally dead, untenable, and hopeless in order to persuade the court. The length of the separation, the parties’ social and economic circumstances, the well-being of young children, the availability of just and sufficient alimony, the children’s economic rights, and other issues should all be taken into consideration by the court. Giving a dead marriage legal status in the form of a formal divorce is in the best interests of everyone involved.
The bench also decided that, according to the conditions mentioned which may vary from case to case, it is possible to waive the six-month waiting time that is required for divorce by mutual consent. This implies that if the requirements are met, couples who want to get a divorce by mutual consent can do so without having to wait through the required waiting time.
Before assessing if a marriage is irretrievably dissolved, some things to take into account are:
- Duration of cohabitation post marriage
- When the parties last cohabited.
- Attempts to resolve disagreements between the parties and the nature of the accusations made by each party against the other
- an adequate amount of time separate
The Hindu Marriage Act, 1955 (HMA), Section 13B, specifies the steps to take in order to obtain a divorce with both parties’ permission. This includes a cooling-off period of 6–18 months following the filing of a joint divorce petition. The relevant court will continue the case and award divorce if the application is not withdrawn during this time. According to the Bench, even while the primary matter is ongoing before a Family Court, the SC is not bound by these procedural criteria and is free to give the decree before such a period under Article 142 of Indian Constitution.
On 01.05.2023, the Bench rendered its decision on the matter. They declared that even if the parties came directly to the Supreme Court without challenging a lower court’s ruling, it had the authority to issue a divorce in circumstances of “irretrievable breakdown of marriage.”
 Irretrievable Breakdown of Marriage How Supreme Court can grant Divorce by Adv. Nitish Banka, https://lexspeak.in/2021/05/irretrievable-breakdown-of-marriage-how-supreme-court-can-grant-divorce/
 2023 SCC OnLine SCC 544
Naveen Kohli v. Neelu Kohli, (2006) 4 SCC 558
Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511
Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 SCC 379
K. Srinivas Rao v. D.A. Deepa, (2013) 5 SCC 226
Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746