Dead In Substance, Alive In Law: Irretrievable Breakdown Of Marriage And The Unfulfilled Promise Of Article 21
- IJLLR Journal
- Apr 18
- 1 min read
Aarya Sharan, Amity Law School, Amity University, Patna
ABSTRACT
The Hindu Marriage Act of 1955 regulates the ending of marriage for a significant portion of India's population within a purely fault- based system, necessitating that a partner pursuing divorce prove a particular matrimonial wrongdoing by the other. The irretrievable breakdown of marriage, despite years of judicial support and two recommendations from the law commission, is not included among the legal grounds for divorce. In Shilpa Sailesh V. Varun Srinivasan (2023), a Constitutional bench of the Supreme Count of India utilized its exceptional authority as per Article 142 of the constitution to annul marriages on this basis, accomplishing judicially what Parliament has consistently declined to legislate. This paper contends that this institutional paradox is not just a legislative oddity but a constitutional shortcoming. The right to dignity, privacy and personal liberty under Article 21 shaped over decades of the Supreme Court rulings, safeguards not only freedom from physical confinement. Furthermore, the autonomy to put together essential preferences regarding one's personal life, including the choice to exit a marriage that is irrevocably over. Depending solely on judicial intervention to address this gap, this paper contends, is an insufficient and unjust solution that only advantages those who can afford to litigateatthehighestlevel.UtilizinginsightsfromEngland,Australiaand the United States, the paper suggests an amendment to the Hindu Marriage Act 1955, complemented by robust financial safeguards for at-risk Spouses, as the constitutionally fitting and belated solutions.
