3 min readJun 11, 2026 06:21 AM IST
First published on: Jun 11, 2026 at 06:21 AM IST
Few legal disputes carry as much collateral damage as matrimonial litigation. Families are drawn into conflict, allegations proliferate, and parallel proceedings ensue. By the time many couples find themselves before a divorce court, the marriage has often already ended. It was against this backdrop that the editorial, ‘In law, we need to write a new marriage story’ (IE, June 9), argued for recognising irretrievable breakdown of marriage. The question has long engaged courts and law reform bodies. The Justice H R Khanna-chaired 71st Law Commission Report made much the same recommendation in 1978. In Shilpa Sailesh v. Varun Sreenivasan (2023), the Supreme Court affirmed its power under Article 142 to dissolve marriages irretrievably broken down. Relief from a dead marriage, however, still depends on reaching the SC.
The Hindu Marriage Act, 1955 and the Special Marriage Act, 1954 recognise divorce largely through two routes: Mutual consent or fault. Where consent is unavailable, parties must establish, if not invent, a matrimonial wrong. In the process, ordinary discord acquires criminal colour and relationships that have simply become unworkable are recast as adversarial contests over fault. A mature matrimonial regime must provide for three realities: Blame, consent, and breakdown. The first justifies fault-based divorce. The second finds expression in divorce by mutual consent under Section 13B of the Hindu Marriage Act. The third remains inadequately addressed. The editorial correctly identifies the lacuna in the law and rightly cautions against reforms that leave women vulnerable. The analysis falls short, however, by treating irretrievable breakdown as a singular phenomenon. A marriage that has broken down by mutual acceptance presents fundamentally different concerns from one where only a single spouse seeks release from the relationship. The safeguards appropriate to one may be wholly inadequate for the other.
Where both parties accept that the marriage has broken down and what remains is a battle only over money and children, the law must provide an easy exit. The court’s role should be confined to questions of alimony and custody.
The harder case arises where one spouse seeks an exit while the other does not accept that the marriage has broken down. It was this that led the law to adopt its conservative approach, limiting divorce to fault or consent. But the right to exit a marriage is a matter of personal liberty, and to bind a party to a dead marriage only to secure the financial security of the other serves neither spouse. The answer lies in economic restitution. Unlike ordinary alimony, which looks to the wife’s needs and wants, courts in cases of unilateral no-fault divorce must provide restitution for emotional abandonment, recognising that the injury is not financial alone but the unilateral rupture of a shared life.
Relief from a dead marriage should not turn upon the fortuitous circumstance of reaching the Supreme Court. A dignified demise to the marriage must be available closer to home. That is what the law owes us. The editorial recognised the problem in the context of a judgment of the Supreme Court, where the parties were separated for 15 years. Reform must follow.
The writers are Delhi-based lawyers
