Marriage On Paper, Separation In Reality
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack
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By Sunil Garodia
First publised on 2026-06-11 11:18:33
About the Author
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack
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When a marriage has died in every meaningful sense, should the law insist that it remains alive on paper?
The Supreme Court's recent observation that forcing a couple separated for 15 years to remain legally married would amount to "cruelty to both parties" highlights a long-standing gap 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 reconciliation was no longer possible.
The case revives a question Parliament has avoided for decades: Why is irretrievable breakdown of marriage still not an independent ground for divorce?
Under the Hindu Marriage Act, divorce remains largely fault-based. A spouse must prove cruelty, adultery, desertion or another recognised ground. Alternatively, both parties must agree to seek divorce by mutual consent.
But many marriages do not end through a single dramatic event. They simply collapse over time. Couples may live apart for years, fight endless legal battles and exhaust themselves emotionally and financially, even when both know the relationship is effectively over.
In such cases, the law often demands proof of fault where none can realistically be established. What survives is not a marriage but a legal formality.
The need for reform is hardly new. The Law Commission first recommended introducing irretrievable breakdown as a ground for divorce in 1978 and repeated the recommendation in its 217th Report in 2009. In the landmark Naveen Kohli case in 2006, the Supreme Court urged the government to amend the law. Parliament considered legislation in 2010 and 2013 but both efforts lapsed.
As a result, India has created an odd situation. The Supreme Court can dissolve marriages on the ground of irretrievable breakdown by invoking Article 142 of the Constitution. Ordinary Family Courts cannot.
This effectively creates two systems of justice. Litigants with the resources and persistence to reach the Supreme Court may obtain relief. Most others remain trapped in prolonged litigation.
Article 142 was never intended to serve as a substitute for legislation. If the Supreme Court has repeatedly recognised that some marriages are beyond repair, Parliament must ask why lower courts are still denied the authority to reach the same conclusion.
At the same time, any reform must address legitimate concerns about the economic vulnerability of many women during divorce. An unrestricted irretrievable breakdown provision could be misused by financially stronger spouses seeking an easy exit without meeting their obligations.
The solution is not to reject reform but to design it carefully. Courts should be empowered to ensure that adequate arrangements for maintenance, alimony, child support, residence rights and financial settlement are in place before granting divorce.
A marriage survives because two individuals continue to share a life together. Once that foundation disappears permanently, legal compulsion cannot rebuild it. Keeping a dead marriage alive often prolongs bitterness rather than preserving family life.
For nearly five decades, law commissions, judges and legal experts have made the same recommendation. Parliament has yet to act.
If the Supreme Court can recognise that a marriage has irretrievably broken down, every Family Court in the country should be able to do the same. The law should acknowledge reality rather than compel people to remain married long after their marriages have ended.
