12 years apart, still married. SC says: that's cruelty

They lived apart for 12 years. The courts said: not enough for divorce. The Supreme Court disagreed—and called staying married 'cruelty'. On an August afternoon in 2023, a bench of two judges in New Delhi looked at a marriage that had been dead for over a decade and asked a question no lower court had dared to ask: why force two people to remain legally bound to each other when the bond itself had rotted away?

The answer they gave changed the rules for every couple trapped in a marriage that exists only on paper.

When the wedding was over before the daughter was born

A man and a woman married in 2007 in Tripura. By 2010—three years in—the marriage was finished. The husband said the wife disrespected his parents and prioritised her teaching job over family life. The wife accused the husband and his family of demanding dowry and treating her cruelly. She had one condition for returning: he must relocate to Udaipur, where she worked. He refused.

In May 2010, while pregnant, she left for her parents' home. She never came back. In January 2011, their daughter was born. The mother raised the child alone. The father saw neither wife nor daughter for the next twelve years.

The husband first went to court seeking restitution of conjugal rights (a court order requiring a spouse to resume living with the other). The Family Court at Agartala dismissed that petition in August 2013. The husband appealed to the High Court of Tripura, then withdrew the appeal.

Then, in February 2017, he filed for divorce. He argued two grounds under the Hindu Marriage Act, 1955: cruelty (Section 13(1)(ia)) and desertion (Section 13(1)(ib)). The Family Court at Agartala dismissed the petition in March 2019. The High Court of Tripura dismissed his appeal in February 2022. Both courts said the same thing: twelve years of separation, by itself, is not cruelty. The law does not recognise "irretrievable breakdown" as a ground for divorce. Only Parliament can create that ground, not judges.

The husband appealed to the Supreme Court. The case file, stacked on the judges' desk, was thin—twelve years of separation, two failed petitions, one daughter born in the middle of it all. The courtroom fell silent as the bench asked: what purpose does keeping this marriage alive serve?

The question the lower courts refused to answer

The High Court had a point. The Hindu Marriage Act lists specific grounds for divorce: adultery, cruelty, desertion, conversion, mental disorder, leprosy, venereal disease, renunciation of the world, and presumption of death. "Irretrievable breakdown of marriage" is not on that list. Parliament has debated adding it for decades. It has never done so.

The husband's lawyers argued that twelve years of separation, with no possibility of reconciliation, was itself a form of cruelty. The wife's lawyers countered that cruelty requires an active act—something the husband did to the wife, not merely the passage of time. They pointed out that the wife had never consented to divorce. She wanted the marriage to survive, even if only on paper.

The Supreme Court had to decide: can a marriage that is dead in every real sense be kept alive by law? And if keeping it alive causes pain to both parties, does that pain amount to cruelty?

Why the Supreme Court said 'enough'

Justice Sanjay Kishan Kaul and Justice Sudhanshu Dhulia delivered the judgment on August 21, 2023. They began by acknowledging the legal problem: the statute does not list irretrievable breakdown as a ground for divorce. But they found a way around it.

The Court held that "continued bitterness, dead emotions and long separation, in the given facts and circumstances of a case, can be construed as a case of irretrievable breakdown of marriage, which is also a facet of cruelty." In other words, the Court said: a marriage that has no emotional life left is not a marriage—it is a cage. And keeping two people in that cage, year after year, is itself an act of cruelty against each of them.

The Court relied on two recent decisions: Rakesh Raman v. Kavita (2023) and the Constitution Bench decision in Shilpa Sailesh v. Varun Sreenivasan (2023). Both had held that the Supreme Court can use its power under Article 142 of the Constitution (the power to do complete justice in any case before it) to dissolve a marriage that has irretrievably broken down, even if the statute does not provide for it.

The reasoning was simple but profound. The purpose of marriage law is not to punish people by trapping them in dead relationships. The purpose is to protect the institution. And nothing destroys the institution more than forcing two people who hate each other to remain legally tied together.

The Court also drew on the principles laid down in Samar Ghosh v. Jaya Ghosh, a landmark judgment that had catalogued the kinds of conduct that constitute mental cruelty. In that case, the Supreme Court had held that prolonged separation, coupled with a complete breakdown of emotional bonds, could amount to cruelty. The 2023 bench applied that logic to the facts before it: twelve years of separation, a daughter who had never lived with both parents, and a wife who insisted on living only in Udaipur—a condition the husband had never accepted. The dead emotions between the couple were not a mere disagreement; they were the very definition of irretrievable breakdown.

The wife's stand: no consent, no divorce

The wife's lawyers had argued forcefully that the marriage could still be saved. They pointed to the wife's willingness to live with the husband—but only if he relocated to Udaipur. They argued that the husband's refusal to move was itself a form of cruelty, and that the wife should not be penalised for his intransigence. The wife had never consented to divorce. She wanted the marriage to survive, even if only on paper.

The Supreme Court considered this argument carefully. It noted that the wife's condition—relocation to Udaipur—was not unreasonable, given that she had a stable teaching job there. But the Court also noted that the husband had never agreed to this condition, and that the couple had been separated for twelve years with no sign of compromise. The daughter, born in January 2011, was now twelve years old. She had never lived with both parents under one roof. The Court concluded that no amount of judicial intervention could revive a marriage that had been dead for so long.

The wife's lawyers also raised the issue of dowry demands. The wife had alleged that the husband and his family had demanded dowry and treated her cruelly. The Court did not make a finding on these allegations, but it took them into account in assessing the overall bitterness between the parties. The allegations and counter-allegations, the Court said, had poisoned the relationship beyond repair.

The price of freedom

The Supreme Court granted the divorce. But it did not let the husband walk away without cost. The Court ordered him to deposit Rs. 20 lakhs in the wife's bank account within six months, to be held as a fixed deposit for her and their daughter's benefit. Until that deposit is made, he must pay Rs. 15,000 per month as maintenance.

The Court also granted the husband visitation rights to his daughter, with the terms to be decided by the Mediation Centre of the High Court of Tripura. Both parties were directed to appear before the Mediation Centre on September 1, 2023. The divorce decree would be handed over only after the full deposit was made.

This financial condition was the Court's way of balancing the scales. The wife had spent twelve years in a legal limbo—married on paper, abandoned in reality. She had raised a child alone. The Rs. 20 lakhs was not compensation for the marriage. It was the price of ending it without her consent. The demand draft, when it arrives, will carry the weight of a decade of waiting.

The Court also quashed the High Court judgment dated February 28, 2022, and set it aside. The procedural journey—from the Family Court at Agartala to the High Court of Tripura to the Supreme Court—was finally over. The marriage was dissolved under Article 142, a provision that allows the Supreme Court to do complete justice in any case before it.

What this means for every stalled marriage

For practitioners, this judgment creates a clear pathway. If a couple has been separated for a long period—the Court did not specify a minimum, but twelve years was clearly enough—and if the marriage shows no realistic chance of revival, the Supreme Court will now treat that as cruelty. The lower courts cannot grant divorce on this ground because they lack Article 142 powers. But the Supreme Court can, and it will.

The judgment does not open the floodgates. The Court was careful to say that each case depends on its own facts. But the principle is now established: a marriage that is dead in every real sense can be declared dead by law. Keeping it alive is not mercy. It is cruelty.

THE PLAY: If you have a client trapped in a long-dead marriage with no statutory ground for divorce, frame the petition around irretrievable breakdown as a facet of cruelty, and take it directly to the Supreme Court under Article 142.

The daughter born in January 2011 is now twelve years old. She has never lived with both parents under one roof. The Supreme Court did not fix that. But it did something the lower courts would not: it stopped pretending the marriage still existed.

The judgment in Appellant-Husband v. Respondent-Wife (Civil Appeal No. 5454/2023) is a reminder that law must sometimes step beyond statute to do justice. The Constitution gave the Supreme Court that power. On a quiet August afternoon, the Court used it to end a marriage that had been dead for twelve years—and to call staying married what it truly is: cruelty.