The Supreme Court of India, through a five-judge Constitution Bench, delivered a landmark judgment on 1 May 2023 holding that the Court possesses the power under Article 142 of the Constitution to directly dissolve a marriage on the ground of irretrievable breakdown, even where one spouse opposes the divorce. The Bench, led by Justice Sanjay Kishan Kaul, established the first comprehensive framework for exercising this extraordinary constitutional power in matrimonial disputes.
Background
The matter arose from a transfer petition filed by the wife seeking dissolution of her marriage. The couple had been separated for over six years and had filed multiple cross-complaints against each other, including proceedings under Section 498A of the Indian Penal Code and the Protection of Women from Domestic Violence Act, 2005.
The core constitutional question referred to the Constitution Bench was whether the Supreme Court could invoke Article 142 to grant a decree of divorce on the ground of irretrievable breakdown of marriage — a ground not codified under the Hindu Marriage Act, 1955 or the Special Marriage Act, 1954. Prior decisions had adopted varying approaches on whether such power could be exercised when one party resisted the dissolution.
Key Holdings
The Constitution Bench laid down the following principles:
Direct dissolution power affirmed: The Supreme Court can invoke Article 142(1) to dissolve a marriage where it is satisfied that the marriage has irretrievably broken down, notwithstanding that irretrievable breakdown is not a statutory ground under the Hindu Marriage Act, 1955 or the Special Marriage Act, 1954.
Unilateral opposition not a bar: The Court may grant divorce under Article 142 even where one spouse opposes the dissolution. The refusal of one party to consent does not limit the Court's constitutional jurisdiction.
Cooling-off period dispensable: The mandatory six-month waiting period prescribed under Section 13B(2) of the Hindu Marriage Act, 1955 for mutual consent divorce can be waived by the Court in the exercise of its Article 142 power, where the circumstances demonstrate that the marriage is beyond repair.
Guiding factors identified: The Bench enumerated relevant factors for assessing irretrievable breakdown, including the period of separation, failed reconciliation attempts, nature and extent of litigation between parties, and the overall conduct indicating that the matrimonial bond is dead beyond revival.
Settlement framework: The Court recognised that in exercising this power, it must address ancillary issues including maintenance, custody of children, and property division to ensure complete justice.
Implications for Practitioners
This judgment fundamentally reshapes matrimonial litigation strategy at the appellate level. Practitioners representing estranged spouses now have a definitive constitutional basis to seek dissolution before the Supreme Court without being constrained by the statutory requirement of mutual consent. The six-year separation in this case provides a practical benchmark, though the Bench deliberately avoided prescribing a fixed minimum period.
The decision fills a significant lacuna in Indian family law, which has long lacked a no-fault divorce ground. While Parliament has periodically considered amending the Hindu Marriage Act to include irretrievable breakdown, this judgment achieves through constitutional interpretation what the legislature has not enacted. Family courts and High Courts should note that this power rests exclusively with the Supreme Court under Article 142 and does not extend to subordinate courts.
Practitioners should anticipate an increase in transfer petitions and special leave petitions invoking this framework, particularly in protracted matrimonial disputes where parties have been separated for extended periods but one spouse refuses to consent to divorce.