Divorce by Mutual Consent under the Special Marriage Act, 1954

The Special Marriage Act – An Introduction

The Special Marriage Act, 1954 (the Act), was enacted to provide a special form of marriage, to persons in India, and Indian nationals abroad, irrespective of the faith which either party to the marriage may profess. In addition to the provisions for solemnization of special marriages, the Act also provides for registration of marriages celebrated in other forms.

The Act came into force on January 1, 1955, and extends to the whole of India except the State of Jammu and Kashmir. It also applies to citizens of India domiciled in the territories to which the Act extends, who are in the State of Jammu and Kashmir.

Divorce by Mutual Consent

Under sec. 28 of the Act, which primarily deals with the provisions relating to obtaining a divorce by mutual consent in respect of a marriage solemnized and/or registered under the Act, a petition for divorce by mutual consent may be presented to the District Court. A few key points to be considered while seeking a divorce by mutual consent are as follows:

1. A petition for divorce must be presented to the District Court by both parties together.

2. The petition must be on the grounds,

  • that they have been living separately for a period of one year or more,
  • that they have not been able to live together, and
  • that they have mutually agreed that the marriage should be dissolved.

3. The petition may be presented only after one year from the date of entering the certificate of marriage in the Marriage Certificate Book. However, relaxation may be provided in cases where exceptional hardship is suffered by the petitioner or in cases of exceptional depravity on the part of the respondent.

4. The petition seeking divorce by mutual consent could be presented to a District Court, within whose jurisdiction, either,

  • the marriage was solemnized,
  • the respondent resides, or in case the wife is the petitioner, where she is residing,
  • the parties to the marriage last resided together, or
  • the petitioner resides, in cases where the respondent is residing outside the territories to which the Act extends.

5. Between 6 months after, and within 18 months of, the date of presentation of the petition seeking divorce by mutual consent, both parties must make a motion together seeking grant of a decree of divorce.

6. Before passing a decree of divorce, the District Court considers the following, among other aspects:

  • that the petition has not been withdrawn yet,
  • that a marriage has been solemnized under the Act,
  • that the averments in the petition are true,
  • that consent for divorce has not been obtained by force, fraud or undue influence
  • that there has not been any unnecessary or improper delay in instituting the proceedings.

Thus, the provisions and the procedure for obtaining divorce by mutual consent under the Special Marriage Act are fairly simple and straight forward.

Parties desirous of obtaining a divorce by mutual consent, must however keep in mind that the Act also contains provisions dealing with grant of alimony and maintenance, both permanent and during the pendency of the proceedings. In the cases of divorce by mutual consent, the parties may agree upon the terms relating to payment of alimony or maintenance and the same may be incorporated in the pleadings before the Court. However care has to be taken that suitable provisions are incorporated in the pleadings to avoid future misunderstandings or litigation. It is therefore advisable that, while discussing the various issues connected with seeking a divorce by mutual consent with their advocates, the parties must specifically discuss their arrangement and agreement on alimony and maintenance, and take suitable steps to ensure that their interest is safeguarded.

Note: The above article is academic in nature, and is neither intended to be, nor should it be construed as a legal advice. Please see our disclaimer. You are always advised to consult an advocate and get clarified from him or her, the latest position in law, and obtain legal advice on what you may or may not do in your situation. 

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