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Jul 13, 20233 min read

Can A Court Grant Divorce From Own Side?

In India, divorce due to the irretrievable breakdown of marriage refers to a situation where spouses believe their marriage has completely and irreversibly broken down, making it impossible for them to continue living together.

While the term "irretrievable breakdown" is not explicitly mentioned in the statutes governing divorce in India, the concept has been recognized by the Supreme Court.

It provides grounds for divorce when parties can demonstrate that their marriage has reached a point of no return with no prospects of reconciliation.


Article 142 of Indian Constitution and its Powers

  • The Supreme Court of India is given exceptional authority under Article 142 of the Constitution of India.

  • It gives the Supreme Court the authority to issue any order or decree required to provide "complete justice" in any matter or subject that is now before the court.

  • The powers under Article 142 are discretionary and can be exercised in exceptional circumstances.

  • These powers are not bound by the limitations of statutory laws or procedural provisions.

  • The Supreme Court can issue directions, orders, or guidelines to secure justice, prevent abuse of the legal process, or enforce its own orders.

  • Article 142 allows the court to fill legislative gaps, remove legal obstacles, or issue necessary orders in the interest of justice.

  • The exercise of these powers is subject to the fundamental rights guaranteed under the Constitution.

  • The court should use these powers judiciously and in line with principles of natural justice and fairness.

  • It helps maintain the balance of power between the judiciary, legislature, and executive branches of the Indian government.

Irretrievable Breakdown of Marriage: Factors to be considered

When considering the ground of "irretrievable breakdown of marriage" for divorce, the court may take several factors into account. While the specific factors can vary depending on the jurisdiction and the circumstances of the case, there are some common considerations:

  • Sustained Estrangement: The court may assess whether the spouses have been living separately for a significant period of time and if their attempts at reconciliation have failed.

  • Lack of Emotional or Physical Intimacy: The court may examine whether there is a complete breakdown of emotional or physical connection between the spouses, indicating a lack of any meaningful marital relationship.

  • Continuous Marital Discord: The court may consider evidence of continuous and unresolved marital conflicts, which may indicate an irreparable breakdown of the marriage.

  • Efforts at Reconciliation:counseling The court may take into account whether the parties have made genuine efforts to reconcile their differences through counseling, mediation, or any other means.

  • Future Prospects of Reconciliation: The court may evaluate the possibility of future reconciliation based on the nature and intensity of the conflicts between the spouses, their willingness to reconcile, and the impact on their overall well-being.

  • Impact on Children: The court may consider the impact of the broken marriage on any children involved, their age, and their best interests.

  • Duration of Separation: The length of separation between the spouses can also be a factor in determining whether the marriage has irretrievably broken down.

Article 142: Need for Direct Divorce Decree

The need for a direct decree of divorce under Article 142 of the Indian Constitution arises in exceptional cases where the circumstances demand an immediate and expeditious resolution.

  • The process of obtaining a decree is rather drawn-out and cumbersome.

  • The social and economic positions of both partners must be evaluated, among other things.

  • Before family courts, a significant number of comparable cases are still waiting.

  • Both parties' dependents must be taken into account, including any children they may have, their age, and whether the parties themselves are dependents.

Therefore, the Supreme Court of India has the authority to grant consenting parties a divorce in circumstances of "irretrievable breakdown" of a marriage under the provisions of Article 142 of the Indian Constitution, but this decision must be made carefully, as it is not a matter of right. Under certain circumstances, the Hindu Marriage Act's six-month waiting time may be waived.


You will need the help of lawyers to learn more about the divorce procedure in India. If you need the help of lawyers to know more about your divorce case in Ghaziabad, then Divorce lawyers in Ghaziabad can be hired. If you need the help of lawyers to know more about your divorce case in Delhi, then Divorce lawyers in Delhi can be hired. Similarly, Family lawyers in Delhi can also be consulted regarding your divorce case.


For any type of legal consultation, you can consult and talk to a lawyer at Lead India. You could get online legal advice in India for free. Along with free legal advice online, you can also receive free legal advice in India in return from Lead India.


Call Us: +91–8800788535

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