In a short span of time, the Supreme Court used Article 142 in two Tamil Nadu cases involving intimate relationships. In one, it dissolved a marriage that the law could not practically end. In the other, it erased a POCSO conviction that Parliament had deliberately made difficult to escape. The two orders point in opposite directions. Together, they reveal how an extraordinary constitutional power is steadily becoming an instrument of judicial policymaking.
That transformation deserves scrutiny. This columnist argued in these pages on 25 June 2026 that such intervention in dead marriages fills a vacuum Parliament has left open, and separately, on 9 July 2026, that its use in the POCSO case pushes against a statutory framework Parliament deliberately built. Read together, the two orders reveal something neither could show alone. The Constitution empowers the Supreme Court to pass such orders as are necessary to do “complete justice” in any cause or matter pending before it. The provision is deliberately open-ended.
It was designed as a safety valve – a mechanism to prevent technical or procedural constraints from producing outcomes that are plainly unjust in the circumstances of a particular case. It was not designed to fill legislative vacuums permanently. It was not designed to override statutory frameworks that Parliament deliberately constructed. And it was certainly not designed to become a recurring route by which inconvenient legal outcomes are erased. Yet that is increasingly what it has become. In a recent case involving a couple separated for fifteen years, the Supreme Court dissolved their marriage under Article 142, observing that preserving a union “already decayed and decomposing day by day” served neither the parties nor society.
Forcing them to remain legally married, the Court said, would amount to “cruelty to both parties.” The Court is right on the merits. Indian matrimonial law remains fault-based. A spouse seeking divorce must establish cruelty, desertion, adultery or another recognised ground. Where a marriage has simply collapsed – gradually, without a single dramatic incident that fits a statutory category – the law offers no exit unless both parties consent. The result is years of litigation, financial ruin and emotional exhaustion, all in pursuit of a legal dissolution that everyone involved knows is inevitable.
The Law Commission recommended including irretrievable breakdown of marriage as a ground for divorce as far back as 1978, and again in its 217th Report in 2009. The Supreme Court urged legislative action in Naveen Kohli vs Neelu Kohli in 2006. Two amendment bills – in 2010 and 2013 – both sought to introduce irretrievable breakdown as a ground for divorce. Parliament has repeatedly declined, or failed, to convert these recommendations into law. In this context, the Court’s use of Article 142 to dissolve dead marriages is understandable. The intervention is humane.
The relief is often just. But a legal principle recognised by the Supreme Court and 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. Article 142 cannot be a permanent substitute for legislation that Parliament has declined to pass. On 8 June 2026, the Supreme Court set aside the conviction of Maruthupandi, a Tamil Nadu resident found guilty under Section 6 of the POCSO Act – one of its most serious provisions, covering aggravated penetrative sexual assault. The Court invoked Article 142. It cited the victim’s subsequent marriage to the convicted man, a payment of Rs. 10 lakh and the passage of time.
This is a different use of Article 142 entirely – and a far more troubling one. POCSO is a strict liability statute. Parliament deliberately chose not to distinguish between predatory abuse and adolescent romance, because the power imbalances and social pressures surrounding minors make claims of consent structurally unreliable. The Court did not dispute the facts of the offence. It expressly said it was not entering the merits. But a court that refuses to examine the merits cannot then act as though the merits were examined. Supporters of the order may argue that imprisoning a husband and father years after the relationship matured into a stable family serves no practical purpose. That concern is understandable.
But it is precisely the sort of policy consideration that legislatures weigh when designing criminal law. If Parliament believes such cases deserve different treatment, it can amend POCSO. A court exercising Article 142 cannot effectively create a new exception while insisting that the statute remains unchanged. The concerns run deeper than legal architecture. The conviction had survived the criminal process and appellate scrutiny. Between that confirmed conviction and its erasure lies a marriage of uncertain origin and a Rs. 10 lakh payment the Court recorded approvingly – without once examining whether the victim’s change of position was freely arrived at or financially induced.
Once the conviction is set aside, nothing protects her if the marriage fails. The money is spent. No condition was imposed, no verification required, no warning of the kind inserted in the earlier K. Kirubakaran case in October 2025, where the Court at least warned the husband that future default would have consequences. The June 8 order offers unconditional finality – to him. This is not the first such case. Two Supreme Court orders, both Tamil Nadu, both Section 6 POCSO convictions, both set aside under Article 142 after the accused married the victim.
The Court appends “not a precedent” disclaimers. An increasingly visible pattern has rendered those disclaimers unconvincing. That is not a coincidence. That is a route. The two deployments of Article 142 are mirror images of the same institutional failure – but they implicate Parliament in opposite ways. In the matrimonial breakdown cases, Parliament has failed to act. The Court steps in to fill a vacuum that democratic deliberation should have addressed decades ago. The use of Article 142 here is constitutionally strained but morally sympathetic.
The remedy is legislative reform. In the POCSO cases, Parliament has already acted – deliberately, after consideration, constructing a strict liability framework for good reasons. The Court steps in not to fill a vacuum but to mitigate outcomes that it considers unduly harsh in particular cases. The use of Article 142 here is neither constitutionally comfortable nor morally straightforward.
And crucially, it relieves Parliament of pressure to undertake the harder work: debating whether the age of consent should be revisited, whether “Romeo and Juliet” provisions that decriminalise consensual adolescent relationships while preserving full penalties for predatory adults should be introduced, and what safeguards genuine reform would require. Many democracies have addressed exactly this question through legislation. India can do the same – but only if the Court stops providing an ad hoc exit that makes legislation feel unnecessary.
The rule of law depends not merely on justice, but on predictability. Citizens should be able to understand the consequences of their actions by reading the statute book. When outcomes increasingly depend on whether the Supreme Court chooses to invoke Article 142 in a particular case, legal certainty gives way to discretionary justice. What appears compassionate in one case may become arbitrary in another. A criminal statute whose application turns on the sympathies of a particular bench on a particular day is not a statute in any meaningful sense. It is a guideline.
Every time Article 142 substitutes for legislation – whether by filling a vacuum or bypassing a statute – Parliament is relieved of pressure to act. The law remains unreformed. Judicial discretion expands. And the constitutional boundary between the Court’s role and Parliament’s role blurs a little further. In matrimonial cases, the cost of inaction falls on estranged couples trapped in dead marriages. In POCSO cases, the cost falls elsewhere – on the integrity of a protective statute and, potentially, on the deterrent message the law sends to those it was built to restrain.
Every time the Court intervenes this way, it inevitably creates expectations that similar relief may be available in future cases. Article 142 exists to do complete justice in exceptional cases. It was not built to carry the weight of legislative failure. When it is deployed routinely – sometimes to fill gaps Parliament left open, sometimes to close doors Parliament deliberately kept shut – it ceases to be an exceptional power. It becomes policy. And policy made by a bench of two or three judges, case by case, without the transparency or accountability that legislation demands, is a poor substitute for the real thing. Parliament needs to act on irretrievable breakdown of marriage.
Parliament needs to debate the age of consent and adolescent relationships under POCSO. Both conversations are overdue. Both require democratic mandate, open deliberation and statutory precision. The Supreme Court cannot – and should not – be expected to do that work. The more it tries, the more Article 142 drifts from a safety valve into something else entirely: a standing invitation for the legislature to remain silent.
(THE WRITER IS AN AUTHOR, LEGAL COMMENTATOR AND EDITOR-IN-CHIEF OF INDIACOMMENTARY.COM)