Matrimonial Litigation

Supreme Court of India’s Power To Directly Grant Divorce:

The Supreme Court of India holds the constitutional authority under Article 142 to grant divorce on grounds of “irretrievable breakdown of marriage,” bypassing the mandatory waiting periods required by the Hindu Marriage Act, 1955. In Shilpa Sailesh vs. Varun Sreenivasan (2023), a Constitution Bench affirmed this power to provide “complete justice” when a marriage is dead, even without mutual consent, while ensuring financial protection for the spouse.

Key Constitutional & Legal Aspects :

1. Article 142 Power: The SC can dissolve marriages directly, bypassing the 6-18 month waiting period for mutual consent, particularly when the marriage has become unworkable and broken down completely.

2. Irretrievable Breakdown: While not a specific ground under the Hindu Marriage Act, the SC uses its plenary power to dissolve marriages on this basis, aiming to end prolonged litigation.

3. Settlement & Alimony: In such cases, the SC often facilitates settlements, which may include waiving or reducing alimony, or, conversely, awarding significant alimony (e.g., ₹1.25 crore in some cases).

4. Withdrawal of Consent: Even if one party withdraws consent after an initial agreement, the SC can still grant a divorce if it deems the withdrawal to be in bad faith or the marriage is already irreparably broken.

5. Equality & Rights: The court ensures that legal reforms, such as removing gender-biased language (“adult male”) in laws, align with Article 14 (Equality) of the Constitution.

Some relevant Cases :

Shilpa Sailesh vs. Varun Sreenivasan (2023): Confirmed the power to grant direct divorce.

Naveen Kohli vs. Neelu Kohli (2006): Recommended adding irretrievable breakdown as a ground.

Vikram v. Priya (2025): Example of SC granting mutual divorce, highlighting the wife’s waiver of alimony.

The Court stresses that while it can end a marriage, it must ensure that financial and social security, particularly for the wife and children, is adequately provided for.

Power of the Supreme Court under Article 142

The Bench stated that the exclusive power granted to the SC under Article 142 is to uphold justice, equity and good conscience. Article 142 is a unique provision that lets the SC do ‘complete justice’ in any ‘cause or matter’. Thus, the SC may go beyond the bounds of procedural and substantive law to achieve the ‘ends of justice’. However, the Bench cautioned that such exercise is expected to be carried out with due restraint. The Bench stated that powers under Article 142 should be exercised responsibly while protecting ‘fundamental general and specific principles’.

Here, the fundamental general conditions of public policy refer to the fundamental rights, secularism, federalism, and other basic features of the Constitution of India. Specific public policy principles should be understood as those expressed in a statute.

Supreme Court Can Grant Divorce Under Article 142.

Section 13B of the Hindu Marriage Act, 1955 (HMA), lays down the procedure for divorce by mutual consent of both parties. This includes a cooling period of 6-18 months after making a joint application for divorce. If the application is not withdrawn during this period, the concerned court will continue proceedings and grant divorce. The Bench held that under Article 142 the SC is not bound by these procedural requirements and can grant the decree before such period, even when the main case is pending before a Family Court. Further, the SC can also grant divorce on the ground of ‘irretrievable breakdown’ in the interest of justice even if one party opposes it.

The Bench was of the view that the cooling-off period is an impediment in instances where there is an ‘irretrievable breakdown of marriage’ i.e. where divorce is inevitable. However, they emphasised that the time gap is necessary as it allows the parties to evaluate and reconsider their decision to divorce. The period can only be waived when the Court finds that the marriage is beyond repair.

Some factors to be considered before determining whether a marriage is irretrievably broken down are:

1. Duration of cohabitation after marriage.
2. Last time the parties cohabited.
3. Nature of allegations made by the parties against each other.
4. Attempts to settle disputes between the parties.
5. A sufficiently long period of separation.