Delay Is Cruelty: Why Indian Divorce Law Must Prioritise Exit Over Endurance

Delay as an Instrument of Suffering

Divorce proceedings in India routinely take several years to conclude. During this time, parties remain legally bound to relationships that may have become hostile, emotionally barren, or psychologically damaging. Financial uncertainty, social stigma, and prolonged litigation combine to create a condition of suspended life. The cruelty in such cases does not always arise from overt acts of violence or abuse, but from the law's insistence on prolonging a relationship that has already ceased to exist in reality.

The Supreme Court has long acknowledged that mental cruelty is not confined to physical harm. In Samar Ghosh v. Jaya Ghosh (2007) 4 SCC 511, the Court observed that mental cruelty may consist of conduct which makes it “impossible for the parties to live together.” Importantly, the Court emphasised that cruelty must be assessed in the context of the parties' lived realities, not abstract moral ideals. When courts nevertheless insist that such parties continue in legal matrimony for years, the delay itself becomes a source of cruelty.

Article 21 and the Right to a Dignified Exit

Article 21 of the Constitution guarantees the right to life and personal liberty, which the Supreme Court has consistently interpreted to include dignity, autonomy, and mental well-being. In Justice K. S. Puttaswamy (Retd) and Anr. vs Union of India and Ors. 2017 (10) SCC 1, the Court affirmed that decisional autonomy over intimate matters lies at the core of personal liberty. Marriage, as an intimate association, cannot be insulated from these constitutional values.

Forcing individuals to remain legally bound to a broken marriage undermines their autonomy and dignity. The right to life cannot be reduced to mere biological existence; it includes the right to live free from prolonged mental anguish imposed by the State through procedural rigidity. When divorce law prioritises endurance over exit, it risks violating Article 21 by subordinating individual dignity to a symbolic ideal of marital permanence.

The Supreme Court's Gradual Shift Towards Realism

Judicial discomfort with prolonged matrimonial suffering is not new. As early as Naveen Kohli v. Neelu Kohli (2006) 4 SCC 558, the Supreme Court acknowledged that compelling parties to remain married despite a complete emotional breakdown serves no useful purpose. The Court observed that once a marriage is “emotionally dead,” its continuance only perpetuates bitterness and misery, and it recommended that irretrievable breakdown of marriage be introduced as a statutory ground for divorce.

Despite this recommendation, Parliament has not amended the Hindu Marriage Act to include irretrievable breakdown as a ground. In the absence of legislative reform, the Supreme Court has increasingly stepped in to prevent injustice caused by delay.

This approach was taken further by a Constitution Bench in Shilpa Sailesh v. Varun Sreenivasan (2023 INSC 468). The Court held that, in exercise of its powers under Article 142, it may directly dissolve a marriage where it is satisfied that the relationship has irretrievably broken down and that continuation would cause injustice. The Bench observed that the Court cannot remain “a helpless spectator” to prolonged human suffering caused by dead marriages entangled in legal formalities.

Delay, Gender, and Structural Inequality

While delay affects all litigants, its consequences are not gender-neutral. Women are more likely to face economic dependency, social stigma, and caregiving burdens during prolonged divorce proceedings. Endless litigation often becomes a tool of coercion, used to exhaust one party emotionally and financially. In such cases, procedural delay ceases to be neutral and becomes a mechanism of oppression.

The Supreme Court has repeatedly cautioned against allowing matrimonial litigation to degenerate into a weapon. In K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226, the Court recognised that prolonged and vexatious litigation itself may amount to mental cruelty. This recognition must logically extend to systemic delays that courts themselves perpetuate.

The Cost of Legislative Inaction

The absence of irretrievable breakdown as a statutory ground has created a troubling inconsistency. Relief is often available only to those who can approach the Supreme Court, while similarly placed litigants remain trapped in lower courts. This not only burdens the apex court but also undermines equality before the law. Divorce outcomes depend less on the merits of the case and more on the litigant's capacity to endure delay.

Moreover, forcing parties to frame their grievances within fault-based grounds encourages exaggeration and false allegations, further poisoning the litigation process. A system that prioritises exit over endurance would reduce hostility, promote settlements, and restore a measure of honesty to matrimonial adjudication.

Conclusion: From Preservation to Dignity

Marriage cannot be preserved by coercion, nor can family values be strengthened by compelling individuals to suffer indefinitely. The Supreme Court's evolving jurisprudence reflects an emerging constitutional consensus: when a marriage has irretrievably broken down, delay in granting divorce serves no public interest. On the contrary, it inflicts mental cruelty and undermines the dignity of those involved.

Indian divorce law must move beyond moral paternalism and recognise that the right to exit a failed marriage is integral to personal liberty under Article 21. Prioritising exit over endurance does not weaken the institution of marriage; it humanises the law by acknowledging that dignity, autonomy, and mental well-being are not negotiable. Until legislative reform catches up, courts must continue to ensure that delay does not become the law's most enduring form of cruelty.

Author: Preeti Singh, Advocate, Partner, PS Law Advocates & Solicitors Offices in Delhi and Mumbai

Views are personal.