Justice By Privilege? Constitutional Paradoxes And Structural Inequality In Dissolving Marriages Under Article 142
Harsh Chawla, National Law Institute University, Bhopal
Aditya Nigam, National Law Institute University, Bhopal
ABSTRACT
Since 2023, the Supreme Court of India has repeatedly invoked Article 142 of the Constitution to dissolve marriages on the ground of irretrievable breakdown, a ground absent from the Hindu Marriage Act, 1955, and to waive the mandatory cooling-off period for divorce by mutual consent under Section 13-B. The Constitution Bench decision in Shilpa Sailesh v Varun Sreenivasan has been celebrated as a humane response to marriages that survive only on paper. This article argues that the celebration is premature. First, the power is structurally inaccessible: a litigant cannot petition the Supreme Court directly for divorce, and reaching it ordinarily presupposes years of litigation before a family court and a High Court, resources that most litigants do not have. The remedy of complete justice, then, functions less as a universal safeguard than as a privilege of endurance and means. Second, the doctrine sits in tension with the Court's own restraint elsewhere: in Supriyo v Union of India, decided the same year, the Court declined to use its transformative constitutional powers to extend the right to marry to queer couples, citing separation of powers and institutional limits. Read together, the two decisions expose an asymmetry in when 'complete justice' is thought appropriate: exiting a marriage is treated as urgent enough to bypass Parliament, while entering one is not. The article traces the doctrinal evolution of Article 142 in matrimonial jurisprudence, examines this asymmetry, and argues that the structural inequality inherent in judicially administered relief of this kind can only be resolved through legislative codification of irretrievable breakdown as a ground of divorce, a course the Law Commission recommended as early as 1978.
