In short. Irretrievable breakdown is not a statutory ground for divorce. After Shilpa Sailesh (Constitution Bench, 1 May 2023), the Supreme Court alone can dissolve a marriage that has completely broken down, under Article 142(1), even if one spouse objects. It needs a pending matter such as a transfer petition, SLP or appeal; a direct writ petition is not maintainable.
Most people who search for this phrase are in the same position. They have lived apart for years, there are cases in two or three courts, mediation has failed, and the other spouse will neither agree to a mutual divorce nor let the contested case finish. They have read that the Supreme Court now grants divorce when a marriage is dead and want to know whether it applies to them, and how to get there. This post answers that narrow question. For the ordinary routes, see our pages on family and divorce law and on divorce cases in the Delhi family courts.
The short version is that Article 142 is a real remedy but a narrow door. It is used in a small number of cases each year, almost always where the parties are already before the Supreme Court for some other reason, and where the record shows a marriage that has been over in every practical sense for a long time. Understanding what the court looks for tells you whether to aim for it or to put your energy into the family court case you already have.
- Legal basis
- Article 142(1), Constitution of India
- Key case
- Shilpa Sailesh v Varun Sreenivasan, 1 May 2023
- Who can grant it
- Supreme Court only
- Separation
- No fixed minimum; six years or more is a relevant factor
- Route
- Pending transfer petition, SLP or appeal
- Consent
- Not required from both spouses
Is irretrievable breakdown a ground for divorce in India?
No, not under any marriage statute. The Hindu Marriage Act 1955 lists the grounds for contested divorce in section 13: cruelty, desertion for two years, conversion, unsoundness of mind, renunciation, presumption of death and a few others. Mutual consent divorce under section 13B needs both spouses to agree. The Special Marriage Act 1954 follows a similar pattern. Nowhere does a statute say that a marriage may be dissolved simply because it has failed beyond repair.
This gap has been discussed for decades. The Law Commission recommended adding irretrievable breakdown as a ground in its 71st Report (1978) and again in its 217th Report (2009). A Marriage Laws (Amendment) Bill was introduced in 2010 to do this, with safeguards for the wife and children, but it lapsed without becoming law. So a family court judge at Saket or Karkardooma who is satisfied that a marriage is dead still cannot grant divorce on that finding alone. The petitioner must prove a statutory ground.
What changed in 2023 is that the Supreme Court confirmed its own power to fill the gap in individual cases. That power comes from the Constitution, not from the Hindu Marriage Act, which is why it sits with the Supreme Court alone.
What did the Supreme Court decide in Shilpa Sailesh?
A five-judge Constitution Bench decided Shilpa Sailesh v Varun Sreenivasan on 1 May 2023. The case began as a transfer petition between spouses and was referred to a larger bench to settle questions that two-judge benches had answered in different ways. The bench held, first, that the Supreme Court can use Article 142(1) to dissolve a marriage on the ground of irretrievable breakdown, even though the statute does not provide for it. Second, it held that in mutual consent cases the court can do away with the six-month waiting period under section 13B(2) when the conditions for waiver are met.
Article 142(1) lets the Supreme Court pass any decree or order necessary for doing complete justice in any cause or matter pending before it. The bench explained that this power is not limited by ordinary statutory procedure, but it must respect fundamental principles of public policy and must be used with care. Applied to marriage, the court said it must be fully satisfied that the marriage is totally unworkable, emotionally dead and beyond salvation, so that ending it is the right course in the interest of both parties.
The bench was equally clear about the limits. Dissolution on this ground is a matter of discretion, not of right. The court will not grant it simply because one spouse wants out, and it will look closely at fairness to the other spouse and to any children. It also held that the same Article 142 power can be used to quash or close the other litigation between the parties, including criminal cases, when that is needed to end the dispute fully.
What factors does the Supreme Court weigh?
The judgment set out factors that guide the court. It said they are illustrative, not a closed list, and that each case turns on its own facts. In practice, these are the questions the bench will have in mind when it reads your papers.
- How long you lived together. A marriage that lasted a few weeks or months before the parties separated reads very differently from one with fifteen years of shared life.
- When you last lived together. The date of last cohabitation is the starting point for the separation period, and the other side will contest it if they can.
- What each side has alleged against the other. The nature of the allegations against the spouse and the in-laws, and whether they were serious or casual, tell the court how deep the bitterness runs.
- The orders already passed. Orders in maintenance, domestic violence, criminal and custody proceedings, and their combined effect on the relationship, are read as evidence of how far the parties have moved apart.
- Attempts to settle. How many times the parties were sent to mediation or counselling, by which court, and when the last attempt failed.
- The length of separation. The court said a sufficiently long period is needed and that anything above six years will be a relevant factor. This is a guide, not a threshold.
- The parties themselves. Their economic and social status, education, age, and whether either spouse depends on the other.
- Children. Whether there are children, their age and needs, and how custody, access and their financial security will be arranged.
- Money and other pending matters. Whether a fair arrangement for alimony and the economic rights of the dependent spouse and children can be made as part of the decree.
Can the Supreme Court grant divorce if one spouse refuses?
Yes. This is the part of the judgment that matters most to people stuck in contested cases. The power under Article 142 is not limited to cases where both parties have agreed. The court can dissolve the marriage even where one spouse opposes, if it is satisfied on the factors above that the marriage has broken down completely and that the decree, with proper financial and child arrangements, does justice to both.
Opposition is still a factor. A spouse who resists divorce because she has nowhere to live, no income and a child to raise is in a very different position from a spouse who refuses only to keep the other tied down. The court will want to know why the objection is being raised. Where the objection is really about money or security, the bench will usually address it through alimony and residence terms rather than by refusing the divorce. Where the objection is that the separation is short and reconciliation is genuinely possible, the plea is likely to fail.
Fault is also not irrelevant. The judgment rejected the idea that the spouse who caused the breakdown should always be denied relief, but conduct is part of the overall picture. A husband who walked out, filed cases against his wife's family and then asks for divorce because the marriage is broken will find the bench asking who broke it.
Can I file a writ petition or go straight to the Supreme Court for this?
No. The Constitution Bench specifically held that a party cannot file a writ petition under Article 32 asking the Supreme Court to dissolve a marriage on the ground of irretrievable breakdown, and said the same applies to writ petitions in the High Courts under Article 226. Article 32 exists to enforce fundamental rights, and a spouse has no fundamental right to a divorce on a ground the statute does not recognise.
The Article 142 power can only be used in a matter already pending before the Supreme Court. That means there has to be a proper proceeding there first: a transfer petition, a special leave petition against a High Court judgment, an appeal, or a connected criminal or civil matter between the same parties. Once that matter is before the court, either party can ask the bench to exercise its power under Article 142 to end the marriage as part of doing complete justice.
Can a family court or the Delhi High Court grant divorce on this ground?
No. A family court in Delhi, Noida or Ghaziabad, and the High Court hearing an appeal, can grant divorce only on the grounds in the statute. They cannot use Article 142, which belongs to the Supreme Court. If a petition before a family court is framed as irretrievable breakdown and nothing else, it is liable to be dismissed.
That does not mean the facts of breakdown are useless below. Family courts and High Courts regularly treat long separation, years of bitter litigation, false complaints and refusal to cohabit as evidence of mental cruelty under section 13(1)(ia), or as part of a case of desertion. The breakdown is proved through these grounds rather than in its own name. Our posts on contested divorce on grounds of cruelty and divorce on desertion explain how those grounds are proved.
This is why the family court record matters even if you hope to end up in the Supreme Court. The bench there decides on the papers. The cross-examination, the orders, the mediation reports and the maintenance findings in the family court are what it reads to decide whether the marriage is dead.
Mutual consent, contested divorce and Article 142 compared
The three routes are not alternatives you pick freely. The first two are open to anyone; the third depends on already being before the Supreme Court.
| Point | Mutual consent (s.13B HMA) | Contested divorce (s.13 HMA) | Article 142 dissolution |
|---|---|---|---|
| Court | Family court | Family court, appeal to High Court | Supreme Court only |
| Consent of both | Required until the decree | Not required | Not required |
| Ground | Living apart one year and agreement | A statutory ground must be proved | Complete breakdown, at the court's discretion |
| Waiting period | Six months after first motion, can be waived | None, but trial takes years | None |
| How it starts | Joint petition | Petition by one spouse | Request made in a pending TP, SLP or appeal |
| Alimony | Agreed in the settlement | Decided by the court on evidence | Usually fixed by the bench in the same order |
| Other cases | Withdrawn or quashed as per settlement | Continue separately | Can be closed or quashed in the same order |
How does a case actually reach the Supreme Court?
The most common route is a transfer petition. When one spouse files divorce in, say, Delhi, and the other lives in Bengaluru or Patna, the respondent often asks the Supreme Court to transfer the case to her city. While deciding the transfer petition, the court routinely sends the parties to the Supreme Court Mediation Centre. If mediation produces a settlement, the court can grant a mutual divorce in the transfer petition itself. If mediation fails but the record shows a dead marriage, either party can ask for dissolution under Article 142. Shilpa Sailesh itself arose from a transfer petition. Our post on transfer petitions in matrimonial cases explains that process.
The second route is a special leave petition under Article 136 against a High Court judgment, filed within 90 days. If the High Court has dismissed a divorce appeal, or allowed one, the losing party can approach the Supreme Court, and the irretrievable breakdown plea can be raised there along with the challenge on merits. Special leave is discretionary. The bench may issue notice only because the marriage appears dead and the parties may settle.
The third route is through connected litigation. A husband challenging a High Court order refusing to quash a criminal case, or a wife appealing a maintenance order, brings the parties before the court. If the papers show that the marriage itself is over, the bench can be asked to close every dispute together. All of these petitions must be filed through an Advocate-on-Record. Our Supreme Court practice page explains how that works.
Step by step: from a stuck case to an Article 142 decree
This is the usual sequence where the route is a transfer petition or an SLP. The timing at each stage depends on the court's listing and the other side's response.
Check that a proper Supreme Court matter exists or can be filed
There must be a real cause before the court: a transfer petition with genuine grounds, an SLP against a High Court judgment within 90 days, or a connected appeal. Do not file a petition only to reach Article 142; the bench will see through it.
Build the list of dates
Set out the date of marriage, the date of last cohabitation, every case filed by either side with its court and status, every mediation referral and its result, and the children's details. This list is what the judges read first.
Plead the breakdown expressly
The petition or an application in it should state that the marriage has irretrievably broken down and ask the court to exercise its power under Article 142(1). Give the facts that match the factors in Shilpa Sailesh, without exaggeration.
Put the financial picture on record
Each side should be ready with an affidavit of assets, income and liabilities in the format laid down in Rajnesh v Neha (2020). The court will not end a marriage without knowing what the dependent spouse and children need.
Attend Supreme Court mediation in good faith
Most benches will try mediation first. A party who refuses to attend or makes no proposal looks like the reason the marriage cannot be settled, which affects how the court views the Article 142 request.
Propose a fair settlement on money, residence and children
Whether or not mediation succeeds, the bench will ask what you offer. A realistic lump sum for permanent alimony, clear arrangements for the children and a plan for jointly owned property make it easier for the court to act.
Ask for closure of all pending cases
If the court is inclined to dissolve the marriage, ask that the same order deal with the divorce petition, maintenance, domestic violence, criminal and custody cases, so that the parties are not left litigating after the decree.
Get the decree and act on it
The Supreme Court's order operates as the decree. Obtain a certified copy, pay any amount within the time fixed, inform the courts where the closed cases were pending, and update records such as passports and bank nominations.
How long must you have been separated?
There is no fixed minimum. The judgment said that the separation should be long enough and that anything above six years will be a relevant factor. Some marriages have been dissolved with shorter separation where the parties lived together only briefly and the litigation was extreme; many with longer separation have been refused because other factors pointed the other way.
What the court really looks for is evidence that time has done its work. Six years of separation with no contact, five cases between the parties and two failed mediations is a strong record. Six years during which the parties met regularly, holidayed together with the child and exchanged affectionate messages is not. The date of last cohabitation is therefore often fought over. Keep whatever documents show when the shared home ended: rent agreements, change of address, police complaints, the date the wife moved to her parents' house, school records showing a change of address for the child.
What happens to alimony, children and pending criminal cases?
The court almost always deals with money in the same order. Where a marriage is dissolved on irretrievable breakdown, especially against the wishes of a dependent spouse, the bench will fix permanent alimony as a lump sum or in instalments, and may direct transfer of a flat or a share in property. It uses the same considerations that guide maintenance: the income and assets of both sides, the standard of living during the marriage, the length of the marriage, the dependent spouse's needs and earning capacity, and the needs of children. The court does not treat alimony as a penalty, and it does not aim to equalise the parties' wealth. Our post on permanent alimony and one-time settlements covers how the figure is usually arrived at.
Children's interests come before the parents' wish to be free. The bench will want to see that custody and visitation are settled or can be settled, and that the children's education and maintenance are provided for, sometimes by a separate amount kept in their name. Where custody is seriously disputed, the court may dissolve the marriage but leave custody to the family court, or it may decline to act until that is resolved.
On criminal cases, the Supreme Court has used Article 142 to quash proceedings under section 498A IPC (now section 85 BNS), the Dowry Prohibition Act and similar cases between the spouses and their families when it dissolves the marriage, so that the decree brings real closure. It will not do this automatically. If one side wants the cases quashed, it should say so expressly and usually expect the other side's agreement or a strong reason.
A made-up example: seven years apart, five cases, no consent
Here's a made-up example. Ritu and Aman married in Delhi in 2015 and lived together for about two years. In 2017 Ritu moved to her parents' home in Lucknow with their young son. Aman filed a contested divorce petition at the family court in Dwarka in 2018 alleging cruelty. Ritu filed a maintenance case and a domestic violence case in Lucknow and lodged a complaint that became an FIR for cruelty against Aman and his parents. She then filed a transfer petition in the Supreme Court in 2019 asking for the divorce case to be moved to Lucknow.
The Supreme Court sent the parties to its mediation centre twice. Both attempts failed because Ritu wanted the marriage to continue for the sake of their son and her own security, while Aman wanted a divorce. By 2024 the transfer petition was still pending, the Dwarka trial had barely moved, and the parties had not met in seven years except in court corridors. Aman's advocate filed an application in the transfer petition asking the court to dissolve the marriage under Article 142.
In a case like this, the bench would look at the short cohabitation, the seven years of separation, the number of cases and the failed mediations. It would also look hard at Ritu's objection. If it were inclined to grant divorce, it would likely ask Aman for a substantial lump sum alimony, a separate amount for the son's education, and an undertaking on maintenance until it is paid. It might quash the criminal case and close all other proceedings in the same order. If Aman offered too little, or there were signs the parties had stayed in touch, the court could simply decide the transfer petition and leave him to his trial in the family court. The outcome depends on the whole record, not on the years alone.
Papers to put together before the Supreme Court hearing
When Advocate B.K. Singh prepares the list of dates in a matrimonial transfer petition or SLP, the line he spends the most time on is the date of last cohabitation, because nearly every factor in Shilpa Sailesh is measured from it. The rest of the file should support that date and show the litigation in one view.
Marriage and separation
- Marriage certificate or wedding photographs and invitation card
- Proof of the date of last cohabitation: rent agreement, address change, emails or messages
- Birth certificates of children and their school records
- Any written separation arrangement
Litigation record
- Copies of every petition and complaint filed by either side
- Latest order sheets and next dates in each case
- FIR copy and chargesheet, if any
- Maintenance and domestic violence orders
- High Court judgment under challenge, if it is an SLP
Settlement attempts
- Mediation referral orders
- Mediator's failure reports
- Counselling records from the family court
- Any written settlement offers made and refused
Money
- Affidavit of assets, income and liabilities in the Rajnesh v Neha format
- Income tax returns for three years
- Salary slips or business accounts
- Details of jointly owned property and loans
- Proposed alimony and child support figures
When will the Supreme Court refuse an Article 142 divorce?
The court is likely to refuse where the separation is short and reconciliation seems possible, where the parties are still in contact in ways that suggest the relationship is not over, or where the request comes from the spouse who caused the breakdown and offers nothing to the other. It also refuses where the dependent spouse and children would be left without security. Article 142 is meant to do complete justice, and ending a marriage without fair provision is not complete justice.
The court may also decline because the matter before it is not a suitable vehicle. A transfer petition with weak grounds, filed mainly to delay the family court case, is not a good platform for asking the court to end the marriage. Nor is an SLP that raises no real question beyond the wish for divorce. In such cases the bench may decide the matter in front of it and leave the parties to the ordinary process.
Mistakes that weaken an irretrievable breakdown plea
- Filing a direct writ petition. The Constitution Bench has said it is not maintainable. It costs time and credibility.
- Abandoning the family court case. If you stop attending the trial because you expect the Supreme Court to end things, the family court may dismiss your petition for default, and you lose the record the bench would have read.
- Hiding income or assets. An incomplete financial affidavit is the quickest way to lose the bench's sympathy. Tax returns and bank statements are easy to call for.
- Exaggerating the allegations. Every allegation is read against the record. Overstated claims of cruelty that were never proved below suggest bitterness, not breakdown.
- Offering a token settlement. A low offer tells the court that the request is about avoiding obligations, not about ending a dead relationship.
- Ignoring the children. A proposal with no plan for custody, access, schooling and maintenance of the children is incomplete.
- Forgetting the other cases. If you want the criminal case, maintenance case and domestic violence case closed with the divorce, ask for it clearly. The court will not do it on its own.
If you are the spouse who does not want the divorce
You can oppose the request, and the court will hear you. The strongest objections are factual: the separation is shorter than claimed, the parties stayed in touch, the breakdown was caused by the other spouse's conduct, or reconciliation is genuinely possible. Put these on affidavit with documents, not as general statements.
If your real concern is security rather than the marriage itself, say so plainly. The bench will often ask what you need to live with dignity: a home, a regular income, the children's schooling. Telling the court a clear figure, backed by your financial affidavit and the other side's known income, is usually more effective than a flat refusal. A point Advocate B.K. Singh often makes to clients in this position is that the court is more likely to protect a spouse who engages with the money question than one who refuses to discuss it.
Do not assume that refusing consent will keep the marriage alive. After Shilpa Sailesh, consent is not the final word. Your time is better spent making sure that, if the marriage is dissolved, the order deals fairly with alimony, residence, children and the cases you want resolved.
What to do this week
Write down the date you last lived together as husband and wife and gather the documents that prove it. List every case between you and your spouse, with its court, case number, stage and next date. Collect the mediation referral orders and failure reports. Prepare your own financial affidavit honestly, because the court will ask for it in any route you take.
Then decide which route is actually open to you. If no matter is pending in the Supreme Court and none can properly be filed, Article 142 is not available yet, and your effort belongs in the family court case: framing the petition on cruelty or desertion and pressing for an early trial. If a transfer petition or SLP is pending or due, the irretrievable breakdown request can be built into it. Our post on mediation in Delhi family courts covers the settlement stage that often comes first.
If you want an advocate to read the papers and tell you whether an Article 142 request is realistic in your case, the team of Advocate B.K. Singh at B.K. Singh & Associates can review the record and explain the options. You can share the details through our online enquiry page.
Frequently asked questions
Can I get divorce on irretrievable breakdown of marriage in a family court?
No. Family courts can grant divorce only on the grounds in the statute, such as cruelty or desertion under section 13 of the Hindu Marriage Act, or by mutual consent under section 13B. Long separation and bitter litigation can still be used as evidence of cruelty or desertion before the family court.
What is the Shilpa Sailesh judgment about?
It is a 2023 Constitution Bench decision of the Supreme Court. It held that the Supreme Court can dissolve a marriage on the ground of irretrievable breakdown under Article 142(1), even without both parties' consent, and can waive the six-month period in mutual consent cases. It also set out factors to guide that discretion.
Can the husband get divorce without the wife's consent on irretrievable breakdown?
Only from the Supreme Court, and only in a matter already pending before it. The court can grant divorce despite the wife's objection if the marriage is completely broken down, but it will usually insist on fair alimony and provision for children before doing so.
Can the wife ask for divorce under Article 142 if the husband refuses?
Yes. The power is not tied to which spouse asks. A wife who is a party to a transfer petition, SLP or appeal in the Supreme Court can ask the bench to dissolve the marriage on irretrievable breakdown, and the court will apply the same factors.
How many years of separation are needed for irretrievable breakdown?
There is no fixed number. The Supreme Court said the separation should be long enough and that anything above six years will be a relevant factor. Shorter separation can be enough in extreme cases, and longer separation may not be enough if other factors point the other way.
Can I file a writ petition in the Supreme Court for divorce on irretrievable breakdown?
No. The Constitution Bench held that a writ petition under Article 32, or under Article 226 in a High Court, is not maintainable for this relief. The request must be made in a matter already pending before the Supreme Court, such as a transfer petition or SLP.
Does the Supreme Court decide alimony when it grants divorce under Article 142?
Usually yes. The bench generally fixes permanent alimony in the same order, as a lump sum or instalments, sometimes with transfer of property. It considers income, assets, standard of living, length of marriage and children's needs.
Will my criminal case under section 498A or 85 BNS be quashed if the marriage is dissolved?
It can be, but not automatically. The Supreme Court has used Article 142 to quash criminal and other cases between the spouses when dissolving a marriage, usually where the parties agree or there is strong reason. Ask for it expressly in your application.
Can the High Court grant divorce on irretrievable breakdown in a divorce appeal?
No. Article 142 is a power of the Supreme Court alone. The High Court in an appeal can only decide whether a statutory ground such as cruelty or desertion has been proved, though it may take long separation into account while doing so.
What happens to the children when the marriage is dissolved under Article 142?
The court treats their welfare as the first consideration. It will want custody, access and maintenance arranged, either in the same order or by leaving custody to the family court. Sometimes a separate amount is set aside for the children's education.
Do I need an Advocate-on-Record for an Article 142 divorce?
Yes, for filing. Any petition or application in the Supreme Court must be filed through an Advocate-on-Record, though another advocate can argue the matter. The request is made inside a transfer petition, SLP or appeal filed in the usual way.
Does Shilpa Sailesh apply to marriages under the Special Marriage Act?
The Article 142 power belongs to the Supreme Court and is not created by any one marriage statute, but the judgment's discussion is built on the Hindu Marriage Act. If your marriage is under another law, take specific advice on how the court is likely to approach it.
Written and reviewed at B.K. Singh & Associates
Advocate B.K. Singh
Founder of B.K. Singh & Associates. MCA, LL.B., LL.M., with more than twenty years of practice before the Supreme Court, the Delhi High Court, district courts and tribunals across Delhi NCR. This article explains the general law as of 24 October 2026; it is not legal advice on your facts.