Can the Supreme Court Directly Grant Divorce Under Article 142?

Can the Supreme Court Directly Grant Divorce Under Article 142?

One of the most common questions I receive is:

“Sir, can we approach the Supreme Court directly and obtain a divorce?”

This question usually comes from people whose matrimonial cases have remained pending for seven or eight years. After facing repeated adjournments, appeals and parallel litigation, they begin to lose hope of obtaining timely closure.

Their urgency is understandable. A prolonged divorce case can be financially draining and emotionally exhausting. However, Article 142 of the Constitution is not a shortcut through which the ordinary judicial process can simply be bypassed.

The Supreme Court has delivered several important judgments explaining its exclusive power to dissolve a marriage on the ground of irretrievable breakdown of marriage. This article answers three practical questions:

1. Can someone file a divorce case directly before the Supreme Court under Article 142?
2. Through which proceedings can an Article 142 divorce prayer reach the Supreme Court?
3. What circumstances does the Supreme Court consider before dissolving a marriage without mutual consent?

The normal process of a contested divorce

A contested divorce ordinarily begins before the competent District Court or Family Court. The court examines whether a statutory ground for divorce—such as cruelty, desertion or adultery—has been proved under the applicable matrimonial law.

A person aggrieved by the Family Court’s judgment may file a statutory appeal before the High Court under Section 19 of the Family Courts Act, 1984. After the High Court decides the appeal, the aggrieved party may seek special leave to appeal before the Supreme Court under Article 136 of the Constitution.

This process can take several years. Nevertheless, the existence of delay does not, by itself, permit a litigant to bypass the Family Court and High Court and institute a divorce proceeding directly before the Supreme Court.

Can a standalone divorce petition be filed under Article 142?

The short answer is no.

Article 142 is a constitutional power vested exclusively in the Supreme Court to pass an order necessary for doing “complete justice” in a cause or matter pending before it. It is not an independent source of original matrimonial jurisdiction for private parties.

Therefore, a husband or wife ordinarily cannot file a standalone application before the Supreme Court saying only that the marriage has broken down and seeking divorce under Article 142.

There must first be a genuine and maintainable proceeding before the Supreme Court. Depending upon the facts, that proceeding may be:

• A civil Special Leave Petition arising from divorce proceedings;
• A civil appeal after leave has been granted;
• A transfer petition involving a matrimonial or connected proceeding;
• A criminal SLP arising from matrimonial litigation; or
• A miscellaneous or interlocutory application connected with a proceeding already before the Supreme Court.

Once such a cause or matter is properly before the Supreme Court, a spouse may seek dissolution of the marriage under Article 142 on the ground of irretrievable breakdown. Whether that relief should be granted remains entirely within the Supreme Court’s discretion.

The governing Constitution Bench judgment

The controlling precedent is Shilpa Sailesh v. Varun Sreenivasan, 2023 INSC 468; (2023) 14 SCC 231, decided by a Constitution Bench.

The Supreme Court held that it may exercise Article 142(1) to dissolve a marriage on the ground of irretrievable breakdown even when one spouse opposes divorce. Mutual consent is therefore not an absolute requirement.

However, this is an exceptional and discretionary power. The Court must be satisfied that:

• The marriage has completely failed;
• There is no possibility of the spouses resuming cohabitation;
• Continuation of the formal marital relationship is unjustified; and
• The circumstances of the spouse opposing divorce have been fairly balanced.

The Court identified several relevant considerations, including the duration of cohabitation, date of last cohabitation, length of separation, nature of allegations, orders passed in connected proceedings, cumulative impact of litigation, attempts at mediation, financial position of the parties and welfare of children.

No single factor automatically guarantees divorce. Even a long separation is an important consideration, not a mechanical formula.

Article 142 divorce through a civil SLP or matrimonial appeal

The most conventional route is an SLP arising from the Family Court and High Court proceedings concerning divorce.

Pradeep Bhardwaj v. Priya

In Pradeep Bhardwaj v. Priya, 2025 INSC 852, the Family Court dismissed the husband’s divorce petition and the Delhi High Court also refused divorce. The husband approached the Supreme Court through SLP(C) No. 18430 of 2019.

The parties had been living separately since 2009. Despite the courts below having refused divorce and despite the existence of a child, the Supreme Court found that the prolonged and futile legal battle had resulted in an irretrievable breakdown. It granted divorce under Article 142 and directed composite monthly maintenance for the wife and child.

Rakesh Raman v. Kavita

In Rakesh Raman v. Kavita, 2023 INSC 433; (2023) 17 SCC 433, the Trial Court granted divorce, but the Delhi High Court reversed the decree. The husband approached the Supreme Court through an SLP, in which leave was granted.

The Supreme Court noted the long separation, multiple court battles and repeated failure of mediation. It concluded that the marital bond had broken beyond repair and granted divorce.

1. Srinivas Kumar v. R. Shametha

In R. Srinivas Kumar v. R. Shametha, (2019) 9 SCC 409, the matter was before the Supreme Court as Civil Appeal No. 4696 of 2013.

The Court held that consent of both parties is not necessary when the marriage has become totally unworkable, emotionally dead and beyond salvation. It exercised Article 142 while protecting the wife’s financial interests.

Munish Kakkar v. Nidhi Kakkar

In Munish Kakkar v. Nidhi Kakkar, (2020) 14 SCC 657, Civil Appeal No. 9318 of 2014 arose from a contested matrimonial dispute.

Although the wife maintained that she wanted to continue the marriage, the Supreme Court found that the parties’ relationship had deteriorated beyond repair and that continuing the legal tie would only cause further emotional trauma. The marriage was dissolved under Article 142.

Divorce through a transfer petition

The Supreme Court has also exercised Article 142 in transfer proceedings. This does not mean that filing a transfer petition automatically entitles a party to seek divorce. The transfer petition must be genuine, and the overall record must justify the exercise of the extraordinary power.

Rinku Baheti v. Sandesh Sharda

In Rinku Baheti v. Sandesh Sharda, 2024 INSC 1014, the wife filed Transfer Petition (Civil) No. 278 of 2023 seeking transfer of the husband’s divorce case. During its pendency, the respondent-husband filed an application under Article 142 seeking dissolution of marriage.

The wife opposed divorce. Nevertheless, after examining the short duration of the marriage, serious criminal litigation, absence of a child and impossibility of reconciliation, the Supreme Court dissolved the marriage. It also independently determined permanent alimony.

This judgment demonstrates that an Article 142 prayer may be considered in a properly instituted civil transfer petition even when the spouse seeking divorce is the respondent in that petition.

Neha Lal v. Abhishek Kumar

In Neha Lal v. Abhishek Kumar, 2026 INSC 73, the proceeding was Transfer Petition (Criminal) No. 338 of 2025. The wife had sought transfer of the husband’s Section 340 CrPC proceedings from Delhi to Lucknow. During the transfer proceedings, she filed an application under Article 142 seeking dissolution of marriage.

The husband expressly opposed divorce and stated that no mutual settlement had been reached. The Supreme Court nevertheless noticed that the parties had cohabited for only about 65 days, had lived separately for more than a decade, had instituted around 40 proceedings and had failed to resolve their dispute through mediation.

Finding the marriage irretrievably broken, the Supreme Court granted divorce despite the husband’s opposition.

Divorce through a criminal SLP

Vishal Shah v. Monalisha Gupta

Vishal Shah v. Monalisha Gupta, 2025 INSC 254, is a particularly important precedent because the proceeding before the Supreme Court originated from a criminal matter rather than a direct challenge to a divorce judgment.

The husband approached the Supreme Court through SLP (Criminal) No. 4297 of 2023 against orders connected with extradition proceedings. During its pendency, he filed an interlocutory application under Article 142 seeking dissolution of marriage.

The wife opposed divorce and rejected the settlement proposal. The Supreme Court nevertheless considered the following circumstances:

• The parties had cohabited for only 80 days;
• They had lived separately for several years;
• The husband was residing in the United States while the wife was in India;
• No child had been born from the marriage;
• Numerous criminal, domestic-violence and civil proceedings were pending; and
• Repeated attempts at mediation had failed.

The Supreme Court dissolved the marriage, closed the connected civil, criminal and domestic-violence proceedings, fixed permanent alimony of ₹25 lakh and directed the release of the husband’s passport.

This is a strong authority, but it should not be read as permitting an Article 142 divorce application in every criminal SLP connected with a matrimonial dispute. The Court acted upon an exceptional and comprehensive factual record showing that the entire marital relationship had collapsed.

Divorce through a miscellaneous application

In Vineet Taneja v. Ritu Johari, M.A. No. 2009 of 2023 in SLP(C) No. 3667 of 2023, the Supreme Court dissolved the marriage through a miscellaneous application connected with a civil SLP, despite opposition by the husband.

This route is procedurally exceptional. A miscellaneous application cannot ordinarily be used to revive a concluded matter or claim entirely unrelated substantive relief. Its maintainability depends upon the earlier proceeding, the Court’s continuing seisin and the nature of the relief necessary to do complete justice.

What does the Supreme Court examine?

The reported decisions reveal a recurring set of factors.

1. Duration of separation

A sufficiently long separation is important because it may demonstrate that the marital relationship has ceased to exist in substance. In Shilpa Sailesh, the Court indicated that separation of six years or more may be a relevant factor. It is not a mandatory waiting period or an automatic entitlement to divorce.

2. Duration of actual cohabitation

Where the parties lived together for only a few weeks or months and remained separated for several years, the contrast can strongly support a finding that the marriage never developed into a meaningful relationship.

3. Failed attempts at reconciliation

The Supreme Court ordinarily examines whether sincere attempts at mediation or reconciliation were made and why they failed. Refusal to settle is not by itself misconduct, but repeated failures may demonstrate that reunion is no longer realistic.

4. Multiple and prolonged proceedings

Civil, criminal, maintenance, domestic-violence, custody and perjury proceedings may show the depth of hostility between the parties. The Court considers their cumulative effect rather than deciding the truth of every allegation while exercising Article 142.

5. Possibility of future cohabitation

The central question is not merely whether the parties are presently living separately. The Court must be satisfied that there is no realistic possibility of their resuming marital life.

6. Financial protection of the opposing spouse

The Court considers income, assets, liabilities, duration of marriage, standard of living, earning capacity, age, health, reasonable needs and other relevant circumstances. The principles in Rajnesh v. Neha, (2021) 2 SCC 324, remain important for financial disclosure and assessment, but permanent alimony is not determined by a fixed percentage formula.

7. Interests of children

Where children are involved, their custody, education, maintenance, emotional welfare and continuing relationship with both parents assume considerable importance. The existence of a child does not legally bar Article 142 divorce, as Pradeep Bhardwaj demonstrates, but it requires greater judicial balancing.

8. Conduct and equitable considerations

Article 142 is an equitable jurisdiction. The Court may examine whether the party seeking relief is attempting to take unfair advantage of their own conduct, withholding material facts or leaving the opposing spouse without adequate protection.

Can Article 142 be claimed as a matter of right?

No.

Even after a matter properly reaches the Supreme Court, neither spouse has a vested right to demand divorce under Article 142. The party can request the Court to exercise the power, but the final decision remains discretionary.

The Court may refuse relief where:

• Separation is not sufficiently long;
• Reconciliation remains realistically possible;
• The underlying proceeding has been created only to obtain Article 142 relief;
• Material facts or financial information have been concealed;
• The interests of the opposing spouse or children have not been protected; or
• Granting divorce would not amount to complete justice in the particular circumstances.

Conclusion

The Supreme Court can directly grant a decree of divorce under Article 142 on the ground of irretrievable breakdown of marriage. It can do so even when one spouse opposes the divorce and no settlement has been reached.