Supreme Court says it can end a marriage even if one spouse says no

She wanted out. He didn't. The Supreme Court said: we can end this marriage anyway.

A five-judge bench answered the question that had split the Supreme Court for over a decade: can a dead marriage be buried when one spouse refuses to sign the death certificate?

The case was Shilpa Sailesh v. Varun Sreenivasan. Both sides knew the marriage was over. The husband still said no. And the law seemed to need his yes.

When the marriage dies but the law won't let go

Section 13-B of the Hindu Marriage Act, 1955, gives a simple route: both file together, wait six months (the "cooling-off period" under Section 13-B(2)), and if both still want out, the court grants divorce.

But what if one spouse changes their mind? Or never agreed at all?

The other grounds — cruelty, desertion, adultery under Section 13 — need proof. They need blame. They need a trial that drags children and families through years of evidence.

And then there is the third category: marriages that are simply, irretrievably, over. No hope of reconciliation. Just two people trapped because the law has no ground called "irretrievable breakdown."

The split that forced a Constitution Bench

Two-judge benches had given opposite answers. In Anjana Kishore v. Puneet Kishore (2002), the court said it could use Article 142 (the power to do "complete justice") to waive the six-month wait and grant divorce even without full compliance with the law.

But in Manish Goel v. Rohini Goel (2010), another bench said no — Article 142 cannot override the clear language of the Hindu Marriage Act. The waiting period is mandatory. The grounds are fixed. The court cannot invent new ones.

This conflict needed resolution. The case landed before a five-judge Constitution Bench — the highest authority on questions of law.

Three questions, one answer

The bench — Justice Sanjay Kishan Kaul, Justice Sanjiv Khanna, Justice Abhay S. Oka, Justice Vikram Nath, and Justice J.K. Maheshwari — had to answer three questions.

First: what exactly is Article 142(1)? Can it override a statute?

Second: can the Supreme Court waive the six-month wait under Section 13-B(2) when both parties agree but don't want to wait?

Third — the big one — can the Supreme Court grant divorce on "irretrievable breakdown" even when one spouse opposes it entirely?

The Attorney General was notified. Arguments were heard. The bench reserved judgment.

Why the court said yes

The Constitution Bench answered all three in favour of the spouse who wanted out.

On Article 142, the court held that the power to do "complete justice" is plenary — full and absolute. The only limit: it cannot violate fundamental public policy or statutory provisions that reflect such policy. But procedural requirements — like a six-month wait — are not fundamental public policy. They can be waived.

On the waiting period: yes, it can be waived under Article 142 when the court is satisfied that the marriage has truly broken down and there is no chance of reconciliation.

And on irretrievable breakdown itself — where a marriage has completely failed and there is no possibility of cohabitation, the Supreme Court can dissolve it even if one spouse says no. The fault theory (the idea that someone must be blamed) can be diluted in rare and exceptional cases.

But the court added a limit: this power is not available to everyone. Parties cannot file a writ petition under Article 32 (the right to approach the Supreme Court directly) or Article 226 (the High Court's writ power) asking for divorce on irretrievable breakdown. The power exists only in a case already pending before the Supreme Court — typically a transfer petition or an appeal.

The six-month wait: gone in the right case

The cooling-off period under Section 13-B(2) was meant to prevent hasty divorces. But in practice, it became a hurdle for couples who had already separated, lived apart for years, and were certain they wanted out.

Earlier, the Supreme Court had held in several cases that the waiting period could be waived if both parties agreed. The Constitution Bench now confirmed that power explicitly.

More significantly: the court said it could grant a divorce even without mutual consent — as long as the marriage is irretrievably broken and the case is before the Supreme Court.

The power to clean up connected cases

The Constitution Bench also held that under Article 142, the Supreme Court can quash connected proceedings — including criminal cases under Section 498-A of the Indian Penal Code (cruelty by husband or relatives), proceedings under the Domestic Violence Act, and maintenance claims under Section 125 of the Criminal Procedure Code.

Many matrimonial disputes involve multiple cases filed in different courts — a divorce petition here, a criminal complaint there, a maintenance claim somewhere else. The Supreme Court can now, in appropriate cases, wipe the slate clean and grant a comprehensive settlement.

But the court did not give a blank cheque. The power to quash criminal proceedings must be exercised only when the settlement is genuine and the parties have voluntarily resolved their differences.

Why the court stepped in

The bench was clearly aware of the human cost. Forcing a couple to stay married when the relationship has completely broken down serves no purpose. It does not protect the institution of marriage. It only prolongs suffering — for the spouses, for their children, for their families.

The court also noted that Article 142 exists precisely for situations where the law is silent or inadequate. If Parliament has not created a ground called "irretrievable breakdown," the Supreme Court can step in to do complete justice in the case before it.

This is not the same as creating a new law. The court cannot add a new ground for divorce to the Hindu Marriage Act. Only Parliament can do that. But the court can, in the specific case before it, grant relief that the law does not explicitly provide — as long as it does not violate fundamental public policy.

The catch

The decision is not a free pass for every unhappy spouse. The power is limited in two important ways.

First, it is available only in cases that reach the Supreme Court. Most matrimonial disputes never go that far. Family courts, district courts, and High Courts cannot grant a divorce on irretrievable breakdown unless Parliament amends the law.

Second, the Supreme Court will exercise this power only in "rare and exceptional" cases. The court did not define exactly what makes a case rare and exceptional — but factors likely include the duration of separation, the absence of any possibility of reconciliation, and the presence of a genuine settlement between the parties.

THE PLAY: If you are in a dead marriage and your spouse refuses to consent to divorce, you cannot directly ask the Supreme Court for relief — but if a case from your dispute is already pending before the Supreme Court (such as a transfer petition), your lawyer can argue that the marriage has irretrievably broken down and ask the court to use its Article 142 power to end it.

The marriage was over. The court gave it a burial.

Before this judgment, a spouse who wanted a divorce but faced an unwilling partner had two options: prove a fault-based ground like cruelty or desertion (which requires evidence and a trial), or wait for the other spouse to agree to mutual consent.

After this judgment, a third option exists — but only for the tiny fraction of cases that reach the Supreme Court. The court has signalled that it will not let procedural technicalities stand in the way of doing complete justice in a dead marriage.

The judgment also resolved the conflict between Anjana Kishore and Manish Goel. The earlier view that Article 142 could not override the Hindu Marriage Act was overruled. The Constitution Bench held that Article 142 is not subordinate to statutory law — it is a constitutional power that exists alongside the statute.

But the court was careful to distinguish between overriding a statute and filling a gap. The waiting period under Section 13-B(2) is a procedural requirement, not a substantive right. Waiving it does not change the law. Granting a divorce on irretrievable breakdown is not creating a new ground — it is recognising a reality that the statute does not address.

The marriage was over. The court simply gave it a legal burial.