12 years apart, marriage still alive? Supreme Court says no

They hadn't lived together for 12 years. The law said no divorce. The Supreme Court said—yes, because keeping a dead marriage alive is itself a form of cruelty.

The wife walked out in 2010. Pregnant. She went to her parents' house and never returned. The husband stayed in Agartala. She moved to Udaipur. For twelve years, they lived in separate cities, connected only by court filings and a daughter who had never seen her parents together.

On a Delhi afternoon in August 2023, they stood at the end of a legal road that had taken them through three courts, two states, and one child born into a broken family. The question before the Supreme Court was brutally simple: could a marriage dead for over a decade be kept legally alive simply because the statute did not list "irretrievable breakdown" as a ground for divorce?

The answer would reshape how Indian courts think about cruelty—and about the limits of their own power.

When the wife walked out

The story begins in 2007, in Tripura. A man and a woman married under Hindu rites. Within three years, the marriage soured. The husband accused the wife of disrespecting his parents and prioritising her job over family obligations. The wife accused the husband and his family of cruelty and dowry demands.

In 2010, while pregnant, the wife left the matrimonial home and went to her parents' house. She never returned. In 2011, their daughter was born. The child has lived with her mother ever since.

For twelve years, they lived separate lives in separate cities, connected only by court filings and a daughter they could not agree on.

The legal maze begins

The husband tried every door the law offered. First, he filed a petition under Section 9 of the Hindu Marriage Act, 1955—a provision that allows a spouse to ask the court to order the other spouse to resume living together. This is called a restitution of conjugal rights petition (a legal request for the court to direct the other spouse to return to the marriage).

The Family Court in Agartala dismissed it. The husband appealed to the High Court of Tripura, then withdrew the appeal.

Next, he filed for divorce under Section 13(1)(ia) and Section 13(1)(ib) of the Hindu Marriage Act—the grounds of cruelty and desertion (abandonment of the marriage without reasonable cause). The Family Court in West Tripura dismissed the petition in March 2019. The High Court of Tripura upheld that dismissal in February 2022.

Both lower courts held that the husband had not proved cruelty or desertion to the standard required by law. The High Court specifically observed that the matrimonial bond was "not ruptured beyond repair" and that irretrievable breakdown of marriage was not a statutory ground available to it.

The husband appealed to the Supreme Court.

The problem with the law

Here was the legal trap. The Hindu Marriage Act lists specific grounds for divorce: cruelty, desertion, adultery, conversion, mental disorder, and others. "Irretrievable breakdown of marriage"—the simple fact that a marriage has died emotionally and cannot be revived—is not among them.

The husband's lawyers argued that twelve years of separation, continued bitterness between the parties, and a complete absence of any emotional connection constituted cruelty. Not the traditional cruelty of beatings or threats, but a subtler, slower cruelty: the cruelty of forcing two people to remain legally married when every trace of marriage had vanished.

The wife opposed the divorce. She argued that the husband had not made out a case under the statutory grounds and that the court could not create a new ground for divorce that Parliament had not enacted.

The Supreme Court had to decide: could it grant a divorce where the marriage had clearly collapsed, even though the statute did not recognise that collapse as a ground?

Why the court said yes

The bench—Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhulia—delivered its judgment on August 21, 2023. The reasoning turned on two pillars.

First, the court held that continued bitterness, dead emotions, and long separation can themselves constitute cruelty. The court called this "irretrievable breakdown of marriage" and said it is a facet of cruelty. The logic: keeping two people tied to a marriage that has emotionally died is cruel to both of them. It prevents them from moving on, from rebuilding their lives, from finding peace.

Second, the court invoked Article 142 of the Constitution—the Supreme Court's power to pass any order necessary to do "complete justice" in any case before it. This is a constitutional emergency brake, designed to allow the court to step in where the strict application of law would produce an unjust result.

The court relied on two recent decisions: Shilpa Sailesh v. Varun Sreenivasan, a Constitution Bench judgment that affirmed the Supreme Court's power to grant divorce under Article 142 in cases of irretrievable breakdown, and Rakesh Raman v. Kavita, which applied the same principle.

"Where there is irretrievable breakdown of marriage," the court held, "the Supreme Court can grant a decree of divorce in exercise of its power under Article 142 of the Constitution."

The price of freedom

But the court did not grant divorce unconditionally. The couple had a daughter, born in 2011, who had lived her entire life with her mother. The court imposed financial safeguards to protect the child.

The husband was directed to deposit Rs. 20 lakhs into the wife's account within six months. This amount would be kept as a fixed deposit, with interest paid quarterly to the wife. The deposit could be encashed only after five years—ensuring the money was available for the daughter's long-term needs.

Until the full deposit was made, the husband had to pay Rs. 15,000 per month as maintenance.

The court also ordered the father to have visitation rights, with the terms to be decided by the Mediation Centre at the High Court of Tripura within three months. Both parties were directed to appear before the Mediation Centre on September 1, 2023.

The decree of divorce would be handed over only after the full deposit was made.

What this means for you

For practitioners, this judgment creates a clear pathway. Where a marriage has irretrievably broken down—evidenced by long separation, dead emotions, and continued bitterness—a spouse can approach the Supreme Court directly under Article 142, even if the High Court has refused divorce on statutory grounds.

The court has made clear that irretrievable breakdown is itself a form of cruelty. The key evidence: duration of separation, absence of any attempt at reconciliation, and the presence of a minor child whose welfare must be secured.

THE PLAY: If your client has been separated for over a decade and the High Court has refused divorce because irretrievable breakdown is not a statutory ground, file a Special Leave Petition in the Supreme Court and invoke Article 142—but come prepared with a concrete financial plan for the spouse and children.

When the law catches up with life

The Supreme Court ended where it began: with a marriage that had been dead for twelve years, a child who had never seen her parents together, and a legal system that finally found the courage to say what everyone already knew.