IRRETRIEVABLE BREAKDOWN AND JUDICIAL DISCRETION: SHILPA SAILESH V. VARUN SREENIVASAN

The notion of ‘irretrievable breakdown’ has been a site of intellectual controversy about marriage laws in India, due to its omission as a codified ground of divorce contemplated by the Hindu Marriage Act of 1955. With a landmark judgment by the Supreme Court of India in Shilpa Sailesh v. Varun Sreenivasan (2023), there has been a significant shift involving a wide exercise of its extraordinary constitutional power conferred by Article 142 of the Constitution of India. The present paper critically evaluates how the court’s procedural requirements, such as the basic criterion of a six-month cooling-off period under Section 13-B(2), have been reconciled in a comprehensive manner within the constitutional mandate of rendering ‘complete justice.’ The article, by engaging in a comprehensive doctrinal and analytical exploration of the detailed judgment, sets out to unravel how the judiciary has acknowledged the element of irremediable breakdown of a marriage, which is significantly a substantive factual situation that presses the need for dissolution of marriage even in the complete absence of mutual consent. The present paper has also engaged in an analytical exploration of how a supreme court can waive procedural requirements, dismissing all civil/criminal issues that were connected, in its bid to ensure finality in marriage disputes, thereby highlighting an essential need of legislative reform, even within a context where the judiciary has displayed a nuanced appreciation of ground realities such as prolonged periods of separation, dire need of finality, an overwhelming sense of judicial concern, and an overall need to adopt a fresh approach that is required by the ever changing judicial environment of marriage disputes in India.