Case at a Glance
A husband whose divorce petition under the Hindu Marriage Act was pending before a Family Court asked the Supreme Court to dissolve the marriage under Article 142 on the ground of irretrievable breakdown, pointing to about twenty pending proceedings and separation since December 2023. The wife opposed, saying the marriage had not broken down and she wished to contest the divorce. The Supreme Court held that Article 142 relief is discretionary and not a right, found that this was not a case of irretrievable breakdown, and dismissed the application. It also dismissed his challenge to the interim custody arrangement, urging the parents to keep the siblings in regular contact.
The parties married on 3 March 2009 and have two children, a daughter and a son. In May 2023, the husband filed a divorce petition under Section 13(1)(i) and (ia) of the Hindu Marriage Act, 1955, which is pending before the Family Court. The parties have lived apart since December 2023. By order dated 7 August 2024, the Family Court gave the mother interim custody of both children, with overnight visitation for the father. After the Delhi High Court interacted with the children, the daughter expressed a wish to live with her mother while the son stayed with his father, and on 18 November 2025 a Division Bench dismissed the father’s appeal, leaving the parties free to seek modification before the Family Court.
The husband challenged that order by a special leave petition and also filed an application asking the Supreme Court to dissolve the marriage under Article 142(1) on the ground of irretrievable breakdown and to bring all pending litigation to an end. He relied on Rinku Baheti v. Sandesh Sharda, (2024) 12 SC CK 0059, 2024 INSC 1014, and pointed to about twenty pending proceedings, including domestic violence and Section 498A IPC cases and a civil suit. The wife opposed the application, stating that the marriage had not irretrievably broken down, that she did not want her children to have a broken home, and that granting the application would deny her the right to contest the divorce petition.
The Key Question Before the Court
Can a spouse obtain a decree of divorce from the Supreme Court under Article 142 on the ground of irretrievable breakdown, over the other spouse’s opposition, merely because many proceedings are pending and mediation has failed?
Article 142 Divorce Is a Discretion, Not an Entitlement
Considering Shilpa Sailesh v. Varun Sreenivasan, (2023) 05 SC CK 0001, 2023 INSC 468, and Rinku Baheti v. Sandesh Sharda, the Bench explained that dissolution of a marriage under Article 142 is a discretionary power, not a right, to be exercised only when the marriage is “totally unworkable and beyond salvation”. The Court accepted that several proceedings were pending between the parties and that mediation had failed. Even so, it concluded: “we do not find the present case to be one where there has been an irretrievable breakdown of their marriage.” The application was therefore dismissed, leaving the husband’s divorce petition to be decided by the Family Court on its merits.
On custody, the Court found that the orders of the Family Court and the High Court “do not warrant any interference”. It noted the existing arrangement, with the daughter living with her mother and the son with his father, and stressed that the bond between the children “ought not to be disturbed on account of the pending proceedings between their parents.” It urged the parents to arrange regular contact between the siblings at least until they attain majority, adding, “We are hopeful that the parties will bear in mind the larger interest of their children.”
What the Court Actually Held
- Dissolution of marriage under Article 142 on the ground of irretrievable breakdown is discretionary and cannot be claimed as of right.
- Pending litigation between the spouses and failed mediation did not, on these facts, show that the marriage had irretrievably broken down.
- The husband’s application (I.A. No. 45811 of 2026) was dismissed, with observations confined to that application.
- The special leave petition against the interim custody orders was dismissed; the parties may seek modification before the Family Court, and the siblings should be kept in regular contact.
Why This Judgment Matters
- It shows that Shilpa Sailesh does not make Article 142 a shortcut to divorce whenever litigation multiplies.
- It protects the opposing spouse’s right to contest a divorce petition on its merits in the Family Court.
- It highlights the Court’s concern for the relationship between siblings separated by a custody arrangement.
What Should Advocates Take Away From the Judgment?
For Spouses
- Many pending cases and failed mediation do not by themselves guarantee a divorce under Article 142.
- Custody arrangements remain open to modification before the Family Court as circumstances change.
For Counsel
- Build a factual record showing the marriage is ‘totally unworkable’ before seeking Article 142 relief, especially when the other side opposes.
- In custody disputes involving siblings, propose structured contact between the children to address the Court’s concerns.
Key Takeaways
- Article 142 divorce is a discretionary remedy, not a right of either spouse.
- The Court must be satisfied that the marriage is beyond salvation; pending litigation alone is not enough.
- The pending divorce petition will be decided by the Family Court on its merits.
- Children’s interests, including contact between siblings, remain central in custody matters.
Frequently Asked Questions
Can the Supreme Court grant divorce on irretrievable breakdown of marriage?
The Court considered Shilpa Sailesh v. Varun Sreenivasan and Rinku Baheti v. Sandesh Sharda and treated dissolution under Article 142 as a discretionary power, used only where the marriage is totally unworkable and beyond salvation; it is not a right.
Why was the husband’s plea rejected here?
The Court found that, although many proceedings were pending and mediation had failed, the case was not one of irretrievable breakdown warranting Article 142 relief; the wife also opposed dissolution.
What happens to the divorce case now?
The husband’s divorce petition remains pending before the Family Court and must be decided on its own merits, uninfluenced by the Supreme Court’s observations.
Conclusion
The Supreme Court declined to use its extraordinary power to end a marriage that one spouse still wishes to defend. The dispute returns to the Family Court, while the Court asked both parents to keep their children’s interests, and their relationship with each other, in mind.
Practical takeaway: A request for divorce under Article 142 needs more than a long list of pending cases; where the other spouse opposes, the Court will look closely at whether the marriage is truly beyond salvation.
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