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Can Supreme Court Grant an Order of Divorce Pursuant to Article 142 Of the Constitution of India?

Court: The Supreme Court of India.

Judgment Name: Sivasankaran V Santhimeenal (Civil Appeal No 4984-4985 of 2021)

Judgment Date: 13th September, 2021.

Bench: Justice Sanjay Kishan Kaul.


Irretrievable Breakdown of Marriage is not mentioned in any of the grounds stated for divorce. This view has been taken into consideration by the Law Commission of India in its 59th Report of 1974 and further in the 71st Report where they had recognized the situations in which there is no fault of either of the parties but a completely broken marriage with zero scope of reconciliation. As clearly stated by the Law Commission, these marriages are merely a ‘shell out of which the substance is gone’. This recommendation was further brought up in the 217th report in 2010 which after various suggestions was later included in the Marriage Laws (Amendment) Bill, 2013. However, this Act has not been passed till date. 


  1. The appellant (husband) and the respondent (wife) had tied the knot on 7th February, 2002. Since the first day of the marriage, problems began to bud between the two. The respondent left the marriage hall on the night of the marriage and went to Pudukkottai. Even after being persuaded by the Appellant, she did not return and therefore the marriage was never consummated.
  2. The appellant filed a divorce petition under Section 13(1) (a) on the ground of cruelty. However, the respondent further filed a petition for the restitution of conjugal rights.
  3. The Trial Court granted a divorce on ground of irretrievable breakdown of marriage. As soon as this decree was passed, the Appellant remarried on 23rd March, 2008. The Respondent re-appealed to the Court of Additional District Judge who allowed the respondent’s petition for restitution of conjugal rights.
  4. This case then appeared before the High Court where the judgment of the Trial Court was restored. The respondent then filed a review petition on the ground that the Trial Court and the High Court were ultra vires in granting that decree as it was beyond their jurisdiction but the same judgment was restored.
  5. Further, this review petition was allowed which shall be analyzed in this case.


  1. What could be the broad parameters for exercise of powers under Article 142 of the Constitution to dissolve the marriage between the consenting parties without referring to the family court to wait for the period prescribed under Section 13-B of the Hindu Marriage Act?
  2. Whether the exercise of power pursuant to Article 142 should be made in all the cases or should it be determined on the basis of the facts of the case?
  3. Did the Acts of the Respondent amount to mental cruelty on the Appellant?


  1. The Respondent had left him on the first day of the marriage. Even after persuading her, she did not return and therefore the marriage was never consummated.
  2. He had remarried after 6 days of the divorce decree by the Trial Court.
  3. The Acts of the Respondents has amounted to a mental cruelty.


  1. The appellant and his family had demanded dowry from her on the first day of marriage. When she failed to oblige, the appellant’s brothers took the appellant away which makes it clear that it was the appellant who refused to cohabit with her.
  2. She had no problem with the second marriage of the appellant but was not willing to accept the scenario that her marriage had come to an end as she wanted to live with the appellant since the inception.


  1. Article 142 is used in cases where there are allegations between the parties and in order to put a quietus on the matter, the Court grants a divorce. It can also be granted in cases where the couple accepts the breakdown of their marriage and requests a divorce. Irretrievable breakdown is often opposed because the definition of marriage varies from different religions to different countries. Hindu marriage considers marriage as sanctity and therefore the society does not accept it. Since all the people are not from the same background, a uniform legislation would be difficult. Marriage is more than just a union of two people. It has cultural, legal, religious and economic ramifications.
  2. The Court further referred to various case laws in order to gauge an understanding on their jurisdiction pursuant to Article 142:
  3. In the case of R Srinivas Kumar V R Shametha, it had been held that it was not necessary that the consent of both the parties is required to exercise the powers of Article 142 for granting a divorce on the ground of irretrievable breakdown of marriage.  
  4. The case of Hitesh Bhatnagar V Deepa Bhatnagar clearly laid down the point that when it is impossible to save a marriage, a decree of irretrievable breakdown can be ordered by the Court.
  5. The Court in the case of Naveen Kohli V Neelu Kohli opined that, once a marriage had been broken beyond the scope of any repair, it would be impractical and unrealistic for the Courts to ignore that fact as it is not only harmful to the interests of the concerned parties but also to the whole society. This similar view had also been relied upon in the case of Samar Ghosh V Jaya Ghosh.
  6. Sukhendu Das V Rita Mukherjee was a case of similar facts and circumstances where the Court had granted a decree to dissolve the marriage pursuant to Article 142 of the Constitution on grounds of irretrievable breakdown of marriage.
  7. The argument raised by the Respondent of no consent was of no substance here as Article 142 is invoked in the cases where a substantial justice is to be done between the parties. When both the parties agree for a divorce, the course of mutual consent is available to them. The Article 142 inflicts a unique power on the Supreme Court to do complete justice and put a quietus on the dispute of the parties.
  8. The Court also examined the issue of mental cruelty against the appellant. The Respondent had filed many cases against the appellant. She also initiated a disciplinary action against him. She sought some information from the college in which the appellant was a professor and on being aggrieved with the information received appealed against the information. She met the Director and Secretary of the above stated College in order to initiate disciplinary actions against the Appellant. She filed a criminal complaint against the appellant under Section 494 of the Indian Penal Code. These acts are a proof of complete disintegration from the marriage from the side of the Respondent. Moreover, the continuous conduct amounted to a mental cruelty on the Appellant as he had been insulted at his work place in front of his colleagues and he has also borne the burden of several complaints filed against him by her.


The decree of divorce had been passed by the powers conferred in the Article 142 of the Constitution on the ground of irretrievable breakdown of marriage and cruelty [Sec 13(1) (a)].


The researcher believes that the exercising of the power conferred in Article 142 of the Constitution by the Supreme Court in this case is justified by all means. This power is used in cases where right balance of the circumstances has to be struck and justice has to be achieved in case of non-consenting parties. In this case, the parties were disintegrated from the marriage since the inception and it was therefore dead from inside. The Court therefore used the power given under Article 142 and gave a fair decree in this matter. 


  2. R Srinivas Kumar V R Shametha Civil Appeal No. 4696 of 2013.
  3. Hitesh Bhatnagar V Deepa Bhatnagar Civil Appeal No. 6281 of 2008.
  4. Naveen Kohli V Neelu Kohli Civil Appeal No. 812 of 2004.
  5. Samar Ghosh V Jaya Ghosh Civil Appeal No. 151 of 2004.
  6. Sukhendu Das V Rita Mukherjee Civil Appeal No. 7186 of 2016.
  7. INDIA CONST, Art 142.
  8. Hindu Marriage Act, 1955, Sec 13, cl. 2, Acts of Parliament, 1949.

Written By: Drishti Rathi (3rd Year), CHRIST (deemed to be University) [Delhi (NCR)].

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