A marital paradox

The Supreme Court’s recent observation that forcing a couple, separated for 15 years, to continue in a legal relationship would amount to “cruelty to both parties” draws attention to one of the most glaring gaps in India’s matrimonial laws. The Court noted that preserving a marriage “already decayed and decomposing day by day” serves neither the spouses nor society, and dissolved it after finding that prolonged separation and the absence of any realistic possibility of reconciliation had rendered the relationship beyond repair.

The judgment matters not merely because of the relief granted to one estranged couple. It sharpens a larger question that Indian law has refused to answer for decades: Why does irretrievable breakdown of marriage still not exist as an independent ground for divorce despite Law Commission reports, repeated legislative attempts and consistent judicial nudging? To understand the impasse, one must understand how Indian matrimonial law was built. The Hindu Marriage Act, 1955, was enacted in the early years of the Republic, drawing on a tradition that treated marriage as a sacrament rather than a contract. The drafters were working within a society where divorce was deeply stigmatised and where legal dissolution of marriage had no established framework.

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The natural choice was a fault-based model: divorce would be available only where one spouse had committed a recognisable wrong – cruelty, adultery, desertion, conversion or unsoundness of mind. This model had its logic in context. It offered courts a clear evidentiary task and gave divorce a moral justification that conservative legislators and society could accept. Mutual consent was eventually added as a concession to practicality, though it required both spouses to agree – a condition that, in a marriage mired in bitterness, is often impossible to fulfil. The concept of irretrievable breakdown emerged from a different philosophical tradition.

It holds that the state’s interest is not in punishing matrimonial fault but in deciding whether a marital relationship still exists in any real sense. If it does not, compelled continuation serves no one. English law moved toward this position in 1969. The idea slowly gained ground internationally through the 1970s and 1980s. In India, the Law Commission noticed it as early as 1978. The fault-based architecture, however, remained untouched. Under the Hindu Marriage Act, divorce is primarily fault-based. A spouse must establish cruelty, desertion, adultery or another recognised ground. But life does not always fit neatly into statutory categories. Many marriages collapse gradually – no dramatic incident, no provable cruelty, no adultery, no desertion in the strict legal sense.

Yet the relationship may be dead beyond revival. Couples spend years living separately, fighting multiple legal battles, exhausting their savings and damaging their mental health while courts search for legally recognised faults that may simply not exist. The result is paradoxical. Everyone involved – the spouses, their families, lawyers, even judges – may know that the marriage is over. Yet the law compels continued litigation. What survives is not a marriage but a legal encumbrance. The damage extends well beyond the two individuals trapped in a dead marriage. Family courts across India are severely burdened. Matrimonial disputes – divorce petitions, maintenance applications, custody battles, domestic violence proceedings – account for a significant portion of their dockets. When a marriage that cannot be saved is denied dissolution, it does not disappear from the system. It multiplies within it. A single estranged couple may simultaneously pursue divorce, maintenance, custody, property disputes and criminal complaints, each generating its own hearings, adjournments and appeals.

Years of litigation follow years of separation. Courts that might otherwise resolve disputes more swiftly are instead compelled to adjudicate relationships that have long since ended. The fault-based system also creates perverse incentives. Since a spouse must prove a recognised wrong, allegations are frequently amplified and litigation becomes increasingly adversarial. Cruelty claims often acquire a strategic dimension. Courts are left sifting through competing accusations and years of acrimony to arrive at a conclusion that the parties themselves may have accepted long ago. Children suffer most silently. Prolonged matrimonial litigation keeps children suspended in conflict. Custody battles stretch across their formative years. They grow up in households defined by legal combat rather than parental stability.

Research across jurisdictions consistently finds that it is not the fact of parental separation but the duration and intensity of conflict that causes lasting harm to children. A legal system that prolongs conflict by denying a straightforward exit bears some responsibility for that harm. The idea is not new. As far back as 1978, the Law Commission recommended including irretrievable breakdown as a ground for divorce, a recommendation reiterated in its 217th Report in 2009. In Naveen Kohli vs Neelu Kohli in 2006, the Supreme Court urged the government to amend the Hindu Marriage Act accordingly. Parliament appeared receptive. The Marriage Laws (Amendment) Bills of 2010 and 2013 both sought to introduce irretrievable breakdown as a ground for divorce. Both lapsed without becoming law. India is consequently in a peculiar position.

The Supreme Court can dissolve marriages on this ground by invoking its extraordinary powers under Article 142. Ordinary Family Courts across the country cannot. Justice therefore depends largely on whether a litigant can reach the Supreme Court – which most cannot. India’s resistance to this reform is increasingly an outlier position. England and Wales moved to no-fault divorce in principle in 1969 and completed the transition with the Divorce, Dissolution and Separation Act 2020, which allows either spouse to file a statement of irretrievable breakdown without establishing fault.

Australia abolished fault-based divorce in 1975, requiring only a 12-month separation as evidence that the marriage has broken down. The United States has adopted no-fault divorce across all fifty states, with California leading the way in 1969. Germany, France, Spain and most European jurisdictions have similarly moved away from fault as the organising principle. The philosophical consensus underlying these reforms is consistent: the state cannot, by withholding a legal certificate, restore a marriage that has ceased to function. Compelling people to remain legally married does not preserve matrimony as an institution. It preserves only litigation, bitterness and stasis. Article 142 is meant to be exceptional.

The Constitution Bench judgment in Shilpa Sailesh v. Varun Sreenivasan affirmed the Court’s authority to invoke it in matrimonial cases, but that does not make the arrangement satisfactory. A legal principle recognised by the Supreme Court but unavailable to ordinary Family Courts creates a two-tier system of justice – one for litigants with the resources and stamina to reach the apex court, another for everyone else. If the Supreme Court has repeatedly recognised that some marriages are beyond repair, Parliament must ask why lower courts are still denied the power to reach the same conclusion.

A remedy available only through the Supreme Court sits uneasily with the principle that access to justice should not depend upon a litigant’s resources or ability to sustain years of appeals. Recognising irretrievable breakdown cannot be a one-sided reform. India remains a society where many women enter divorce proceedings at a significant economic disadvantage – interrupted careers, limited independent income, primary responsibility for children and, often, the matrimonial home as their only secure residence. An unrestricted irretrievable breakdown provision could become a convenient exit route for financially stronger spouses seeking to escape marital obligations without adequate settlement. These concerns are legitimate and must be written into any reform.

Courts should be empowered to withhold divorce until permanent alimony, asset division, child support and residence rights are properly secured. The answer is not to reject reform. The answer is to design it so that it cannot be weaponised. A marriage survives because two individuals continue to share a life. Once that foundation disappears permanently, legal compulsion cannot restore it. Keeping a dead marriage alive prolongs bitterness, fuels litigation and traps individuals – and their children – in relationships that ceased to exist years earlier. For nearly five decades, commissions, courts and legal experts have made the same recommendation.

Parliament has responded with bills that lapse and silence that follows. Marriage remains one of society’s most important institutions. But its importance does not justify preserving it through legal compulsion when it has ceased to exist in substance. The law should protect marriages that can still be saved. It should also recognise those that cannot. The Supreme Court can dissolve a marriage when it finds one beyond repair. Every Family Court in the country should be able to do the same. Until Parliament acts, the law will continue insisting that people remain married long after their marriages have ended.

(THE WRITER IS AN AUTHOR, LEGAL COMMENTATOR AND EDITOR-IN-CHIEF OF INDIACOMMENTARY.COM)