April 29, 2024

Marriages are held in esteem in contemporary culture as sacred relationships that symbolize dedication, love, and connection. But not all relationships last, and a few couples might be forced to make the difficult decision to file for divorce. A framework of law for divorcing couples who follow different religions or who opt for a civil marriage can be provided under the Special Marriage Act of India.

Divorce under Special Marriage Act

contested divorce:         

The special marriage act divorce section for contested divorceis Section 27 under the Special Marriage Act.

The Special Marriage Act includes provisions for divorce cases. Parties registered under the act may file for a divorce under Section 27, which specifies that either the husband or the wife may sue for divorce on the basis of:

  • The respondent voluntarily engaged in sexual relations with anyone other than their spouse following the marriage ceremony.
  • Desertion of the petitioner over a continuous period of at least two years from the solemnization of the marriage, right before the petition was filed.
  • The respondent is serving a seven-year-or longer jail sentence for a crime as specified by the Indian Penal Code.
  • Since the marriage was formally consummated, the petitioner has been cruelly handled by the respondent.
  • The petitioner cannot fairly be expected to coexist with the respondent due to the respondent’s incurable mental illness or ongoing, sporadic mental disorders of that nature.
  • The respondent has been afflicted with infectious venereal illness.
  • For a minimum of seven years, the respondent has not been mentioned as alive by anyone who would typically be aware of them if they were still living.

It should be emphasized that if a minimum of one year has not gone by the marriage registration, the Court may decide not to accept the case. Nonetheless, the court would grant the petition in certain cases where it would result in extreme suffering.

divorce in special marriage act

mutual consent divorce:

In accordance with Section 28 of the Act, which addresses mutual agreement divorce, the parties to a marriage may jointly petition for divorce by mutual consent under special marriage act 1954 in the District Court on the following grounds:

  • That they are unable to live together,
  • That they have been living apart for a year or longer, and
  • That they had decided to dissolve their marriage amicably.

mutual consent divorce procedure

The process of mutual consent divorce is as follows:

Submitting the Mutual Divorce Petition

  • Both the husband and the wife, with their cooperation, should file the divorce petition.
  • The grounds for the divorce as well as all property and child-related agreements are included in the petition.
  • After that, the family court is consulted to make additional decisions.

Appearance in the Family Court

  • For subsequent procedures, both parties involved must appear in the Family Court with their attorneys.
  • However, in an effort to mediate a settlement, both parties must come before the judge prior to appearing in court.
  • The court then verifies the petition and the documents, recording the statements made by each party.

First and Second Motions

  • The court issues the order for the first motion following the hearing of statements from both parties.
  • A six-month cooling-off period is required for the pair to reconsider their choice (which, in accordance with a ruling by the Supreme Court, may be waived if the couple has been living apart for more than 18 months prior to submitting the initial motion).
  • In most cases, the second motion of order may be filed within eighteen months following the first motion. Both of them move for a second order of motion if the divorce ruling is upheld.

Final Decision

  • The court issues the mutual consent divorce final decree following the consideration of both motions for orders.
  • Following this, their marriage is dissolved and they are officially no longer married.

Case Ruling

  • In the recent case of Shilpa Saliesh v Varun Sreenivasan, 2023, the Supreme Court granted the divorce on the grounds of an irretrievable collapse of the marriage and also declared that the six-month waiting period required under the Hindu Marriage Act, 1955 to obtain a divorce decree will be waived.
  • It has been made clear by the Court that parties cannot petition the Supreme Court directly for a dissolution of marriage since it has established specific criteria for evaluating an irretrievable breakdown of a marriage.

The Special Marriage Act provides grounds for divorce, permitting partners to call it quits under specific situations. divorce under special marriage act gives individuals a method that is secular and outlines the grounds for divorce underneath this Act.     

Divorce under Special Marriage Act FAQs

  1. What are the conditions for divorce in Special Marriage Act?

Both parties may jointly file a petition for divorce with the district court, subject to the provisions of this Act and the rules made thereunder. The petition may be based on the grounds that the parties have been living apart for a year or longer, have been unable to cohabitate, and have mutually decided that the marriage should end.

  • What is the judgment on divorce under the Special Marriage Act?

In accordance with the Special Marriage Act, the Karnataka High Court granted a request made by a divorcing couple and waived the mandatory one-year waiting time before making a decision on the divorce by consent.

  • Is adultery a ground for divorce under the Special Marriage Act?

The Special Marriage Act of 1954 recognizes adultery as a legitimate reason for divorce in cases when the responder had voluntary sexual relations with someone other than their spouse following the marriage’s solemnization.

  • What are the benefits of the Special Marriage Act?

People of different religions are able to get married in India thanks to the Special Marriage Act. This Act permits marriages between people of different religious backgrounds. People of any religion are able to get married in a civil ceremony thanks to the Special Marriage Act. Additionally, the Act assists the public in registering it under general law.

  • How can I cancel my marriage under Special Marriage Act?

In addition, the Special Marriage Act advances the cause by incorporating a Mutual Divorce provision according to Section 28, which permits both parties to jointly present a divorce petition to the district court on the grounds that they have been living apart for a year or longer, have been unable to cohabitate, and have mutually decided that the marriage should be dissolved. This provision addresses the problems of unwelcome litigation and overworked courts.

  • Is false case ground for divorce?

According to the Calcutta High Court’s recent ruling, a wife who files false charges under section 498A of the IPC against her husband and his family members will be found guilty of cruelty, an offense that can result in the dissolution of marriage according to the Hindu Marriage Act (HMA).

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