UNMAKING MARRIAGE: SHILPA SAILESH V VARUN SREENIVASAN AND THE CASE FOR LEGISLATIVE REFORM
AUTHOR – AANCHAL MEGAN MENEZES, STUDENT AT OP JINDAL GLOBAL UNIVERSITY
BEST CITATION – AANCHAL MEGAN MENEZES, UNMAKING MARRIAGE: SHILPA SAILESH V VARUN SREENIVASAN AND THE CASE FOR LEGISLATIVE REFORM, INDIAN JOURNAL OF LEGAL REVIEW (IJLR), 6 (1) OF 2026, PG. 334-339, APIS – 3920 – 0001 & ISSN – 2583-2344. DOI – https://doi.org/10.65393/EHSP4598
Introduction
Marriage, under Hindu personal laws, has long been regarded as a union that is sacrosanct. The Hindu Marriage Act, 1955 (“HMA”) echoed this philosophy by initially offering divorce under very limited grounds of fault based reasons like cruelty, adultery etc. The addition of mutual consent as a ground for divorce in the form of Section 13B in 1976 marked a reformative shift that allowed for a petition for dissolution without the need to establish guilt, when both parties are willing, provided that the couple has been separated for at least one year. It also prescribes a cooling-off period of six months, extendable up to eighteen months, before a second petition for divorce can be filed. [1]
The five-judge Bench in Shilpa Sailesh addressed the issue of whether this period could be waived in circumstances where there is no hope for reconciliation. However, the judgment also underscored broader implications. By acknowledging the irretrievable breakdown of marriage, where a party seeks a divorce despite the opposition of another, as a legitimate ground for divorce, it paved the way for the development of non-fault grounds. The court invoked its power under Article 142 of the Indian Constitution, which bestows upon it extraordinary powers to do “complete justice” in any cause or matter and held that they could use their discretion to grant relief and avoid prolonging the suffering of involved parties. This case commentary seeks to examine the necessity of irretrievable breakdown of marriage (“IBM”) as a legitimate ground for divorce, while also delving into the limitations of doing so without legislative sanction. Further, it also explores India’s approach towards balancing individual autonomy within the broader institution of broken marriages.
[1] Bijal Ajinkya and Sachin Bhandawat, ‘Mutual Consent Divorce under Hindu Law: Cooling-Off Period and Withdrawal of Consent’ (2024) SCC Online Blog Exp 5 https://www.scconline.com/hma accessed 17 October