irretrievable breakdown of marriage

Irretrievable breakdown is not a ground of divorce under the Hindu Marriage Act, 1955 or the Special Marriage Act, 1954, which still follow mainly a fault theory (cruelty, desertion, adultery) along with divorce by mutual consent. The Law Commission recommended adding it in its 71st Report (1978) and 217th Report (2009), but Parliament has not done so.

In Shilpa Sailesh v. Varun Sreenivasan (2023) a Constitution Bench of the Supreme Court held that it can dissolve a marriage on the ground of irretrievable breakdown in exercise of its power to do complete justice under Article 142(1), even where one spouse opposes, after considering factors such as the period of separation, attempts at reconciliation and the economic position of the parties. It may also waive the six-month waiting period for mutual consent divorce. Only the Supreme Court has this power; family courts and High Courts do not.

Example

After eighteen years of separation, the Supreme Court dissolved the marriage under Article 142 for irretrievable breakdown, though the husband refused consent.

In Indian law

• Article 142(1), Constitution of India
• Shilpa Sailesh v. Varun Sreenivasan, 2023 INSC 468

See also

divorce · mutual consent divorce · cruelty · desertion

Read more in the study notes

• Foreign judgments (sections 13 and 14) (Civil Procedure Code and Limitation Act)
• Divorce under the Hindu Marriage Act (Family Law I - Hindu Law)
• Family law, modernisation and social transformation (Law and Social Transformation in India)