WOMAN & CHILD LAW PROJECT

TOPIC – MARRIAGE & DIVORCE

PROVISIONS UNDER THE SPECIAL
MARRIAGE ACT, 1954

SUBMITTED BY –
AYUSH AGRAWAL
7TH SEM., REGULAR
B. A. LL.B.(HONS)
 CONTENTS

THE SPECIAL MARRIAGE ACT, 1954

1. Introduction

2. Solemnization of Special Marriages

3. Registration of Marriages celebrated in Other Forms

4. Consequences of Marriage Under This Act

5. Matrimonial Causes Under the Act

BIBLIOGRAPHY
 INTRODUCTION

India follows a very rigid caste system. People are expected to marry within their caste. In
some places in India, whoever marries out of their caste and deny their traditions are
shunned by the society. Thus, there came a grave need for a law to safeguard the interests
of those people who rose above these caste and religious divides, in order to marry for love.
So, the Parliament enacted The Special Marriage Act, 1954 (the Act) which provides for a
special form of marriage for the people of India and all Indian nationals in foreign
countries, irrespective of the religion or faith followed by either party.

The Act extends to whole of India except the state of Jammu and Kashmir and applies also
to citizens of India domiciled in the territories to which this Act extends who are [in the
1
State of Jammu and Kashmir] .

SOLEMNIZATION OF SPECIAL MARRIAGES

Section 4 of the Act lays down the essential conditions for solemnization of a marriage
under this act. They are:

1. Neither party should have a spouse living at the time of marriage.

2. Neither party should be incapable of giving a valid consent in consequence

of unsoundness of mind.
3. Neither party should be suffering from mental disorder of such a kind or to such
an extent as to be unfit for marriage and procreation of children.
4. Neither party should be suffering from incurable insanity.

5. Parties should not be within degrees of prohibited relationship.

6. The male must have completed the age of twenty-one years and the female must
have completed the age of eighteen years.

1
Section 1(2),The Special Marriage Act, 1954.
 7. Where the marriage is solemnized outside the territories to which this Act
extends, both parties must be citizens of India domiciled in the said territories.

Special Marriage Act, 1954 provides for solemnization of marriages in accordance with
the provisions of the Act. SDMs/ADMs/Deputy Commissioners have been authorized as
Marriage Officers for this purpose.

Sections 5 to 14 of the act lay down the procedure for solemnization and registration of
marriage under this Act.

A summary of the required procedure is given below.

NOTICE OF INTENDED MARRIAGE

Section 5 of the Act requires that a notice must be given in writing in the prescribed form to
the Marriage Officer of the District in which at least one of the parties to the marriage has
resided for a period of not less than 30 days immediately preceding the date on which such
notice was given.

PUBLICATION

The notice given is then published by affixing it in some conspicuous place in the office of
the Marriage Officer, and before the expiration of thirty days from the date on which the
notice was published any person can object to the marriage that it would contravene any of
the conditions necessary for the marriage.

After the expiry of thirty days from the date on which the notice was published the
marriage may be solemnized.

DECLARATION AND WITNESSES

Before the marriage is solemnized the parties and three witnesses shall sign a declaration in
the prescribed form and the declaration shall be counter signed by the Marriage Officer.
PLACE AND FORM OF SOLEMNIZATION

The marriage may be solemnized at the office of the Marriage Officer or at such place within
reasonable distance as the parties may desire upon payment of such additional fees as may be
prescribed.

The marriage may be solemnized in a form, which the parties may choose to adopt.

However, no marriage is complete and binding unless each party says to the other in the
presence of the Marriage Officer and the three witnesses in any language understood by the
parties, I______take thee________to be my lawful wife (or husband).

CERTIFICATE OF MARRIAGE

After the marriage has been solemnized the Marriage Officer shall enter a certificate in the
Marriage Certificate Book and this shall be signed by the parties to the marriage and the
three witnesses and this shall be conclusive evidence of the marriage.

REGISTRATION OF MARRIAGES CELEBRATED IN OTHER FORMS

Any marriage celebrated other than a marriage solemnized under the Special Marriage Act,
1872 or under the Special Marriage Act, 1954 may be registered under Chapter III of the Act
by a Marriage Officer if the following conditions are fulfilled:

(a) a ceremony of marriage has been performed between the parties and they have been
living together as husband and wife ever since;

(b) neither party has at the time of registration more than one spouse living;

(c) neither party is an idiot or a lunatic at the time of registration;

(d) the parties have completed the age of twenty-one years at the time of registration;

(e)the parties are not within the degrees of prohibited relationship;

Provided that in the case of a marriage celebrated before the commencement of this Act, this
condition shall be subject to any law, custom or usage having the force of law governing each
of them which permits of a marriage between the two; and

(f) the parties have been residing within the district of the Marriage Officer for a period of
not less than thirty days immediately preceding the date on which the application is made to
him for registration of the marriage.

Upon receipt of an application signed by both the parties to the marriage for the
registration, the Marriage Officer shall give public notice thereof in such manner as may be
prescribed and after allowing a period of thirty days for objection and after hearing any
objection received within that period, shall, if satisfied that all the conditions are fulfilled,
enter a certificate of the marriage in the Marriage Certificate Book in the prescribed form
and such certificate shall be signed by the parties to the marriage and by three witnesses.

CONSEQUENCES OF MARRIAGE UNDER THIS ACT

Chapter IV of the Act lays down the consequences of marriage under this act. Sections 19-21
of the Act are covered under this Chapter.

Section 19 says that when a member of an undivided family who professes Hinduism,
Budhism, Sikhism or Jainism solemnizes his marriage under this Act, it shall be deemed
to effect his severance from the family.

Section 20 of the act lays down that subject to the provisions of section 19, any person
whose marriage is solemnized under this Act, shall have the same rights and shall be subject
to the same disabilities in regard to the right of succession to any property as a person to
whom the Caste Disabilities Removal Act, 1850 applies.

Section 21 goes on to say that Notwithstanding anything contained in the Indian

Succession Act, 1925 with respect to its application to members of certain communities,
succession to the property of any person whose marriage is solemnized under this Act and
to the property of the issue of such marriage shall be regulated by the provisions of the
Indian Succession Act.
 MATRIMONIAL CAUSES UNDER THE ACT

Chapter V of the Act deals with Restitution of Conjugal Rights and Judicial Separation
and Chapter VI of the Act deals with Divorce and Nullity of Marriage.

RESTITUTION OF CONJUGAL RIGHTS:

On marriage, it is the primary duty of the parties to live together for the performance of their
marital obligations. This right to cohabit with each other is called the right to ‘consortium’.
It is the right that husband and wife have to each other’s society, comfort and affection. The
origin of the action seems to lie in the early law concept of husband having a quasi-
proprietary right over the wife. It included his wife’s society as well as her services. With the
passage of time, the concept of consortium assumed a distinct footing of mutuality. Conjugal
rights cannot be enforced by the act of either party and a husband cannot seize and detain his
wife by force. If a spouse makes a breach of this obligation without any justifiable cause, the
other can go to the court for the restoration of his conjugal rights.

Section 22, of Chapter V of the Special Marriage Act, 1954, lays down the conditions
on which a petition for restitution of conjugal rights would lie.

22. Restitution of conjugal rights.- When either the husband or the wife has, without
reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply to
petition to the district court for restitution of conjugal rights, and the court, on being satisfied
of the truth of the statements made in such petition, and that there is no legal ground why the
application should not be granted, may decree restitution of conjugal rights accordingly.

Explanation. Where a question arises whether there has been reasonable excuse for
withdrawal from the society, the burden of proving reasonable excuse shall be on the person
who has withdrawn from the society.

The following are the elements of the section:

1. The respondent has withdrawn from the society of the petitioner.

2. The respondent has withdrawn without reasonable cause.

3. The burden of proof of reasonable cause is on the respondent

4. The petition is filed in the district court

 5. The court is satisfied with the truth of the statement and there is no other ground
for the denial of the relief.

Where a spouse has withdrawn from the society of the other without reasonable cause, the
aggrieved party may apply to the competent court for restoration of society and restitution of
conjugal rights, on which the court will, in a proper case, make decree to that effect. A
conjugal right is one vested in the spouse on marriage to live in a close society of each other
for upholding the cause of matrimonial relations.

The word ‘society’ occurring in the section means the same thing as consortium or cohabitation,
i.e., living together as husband and wife in the place called ‘matrimonial home’.

So, it is evident that withdrawal from society of the other would mean withdrawal from the
matrimonial home by either spouse that would involve a total loss of consortium like
desertion. Withdrawal from society involves two elements: animus and factum. This means
that the withdrawing spouse has an intention to put the cohabitation to an end and
secondly, mere intention to withdraw would not amount to withdrawal unless it is coupled
with factum of separation on the part of withdrawing spouse.

Cohabitation does not necessarily mean that parties are living together under the same roof
but there may be states of cohabitation where they see as much of each other as they can,
and yet are not separated.

The principles of Shastric law were that the wife is bound to live with her husband and to
submit herself to his authority. This rule of law that gave husband alone the right to establish
a matrimonial home in preference to the wife was based on a custom, which reflected the
condition of the age in which the custom was practiced. Moreover, the right of the husband to
establish a matrimonial home is not a proposition of law, it is simply a proposition of
ordinary good sense arising from the fact that husband is usually the bread earner and has to
live near his work. In such circumstances it becomes quite natural that the husband should
have the right for the choice of matrimonial home. The Constitution of India gives an equal
status to both the sexes, thus both have an equal right to pursue their career. Now the casting
vote as to the choice of matrimonial home is not with the husband or wife but it is a matter,
which has to be decided amicably between them.

The question as to what amounts to withdrawal from society has come before our courts in
several cases in an interesting manner: does the wife’s refusal to give up her job at the instance
of the husband amount to withdrawal from the society of the husband? The question
came for consideration before the Punjab High Court in several cases and it was answered
2 3
in the affirmative. In the cases Tirath Kaur v. Kirpal Singh , Gaya Prasad v. Bhagwati ,
andKailashwati v. Ayodhiya Prakash4, the courts held that the husband has a right to decide
thematrimonial home and the wife must resign her job and live with him. As opposed to this
extreme opinion the other view, as held in S. Garg v. K. M. Garg5, is that in the present
scenario of the society the wife cannot be prevented from taking up employment and cannot
be forced to reside in the same place her husband is living. Neither party has a casting vote
nor must the matter be settled by agreement between the parties, by a process of give and
take and by reasonable accommodation.

Once the petitioner proves that the respondent has withdrawn from his society, the burden
of proving that he/she has withdrawn with reasonable excuse would be on the respondent. A
petition for restitution will fail if it established that the respondent has withdrawn from the
society of the petitioner with a reasonable excuse for doing so.

Under the modern matrimonial law, it will amount to reasonable excuse or reasonable cause:

1. If there exists a ground on which, the respondent can claim any matrimonial
relief. Thus, if it is established that the petitioner has another wife (Parkash v.

Parmeshwar6), is guilty of cruelty (Bejoy v. Aloka7), or is adulterous (Laxmi Malik

8
v. Mayadhar Malik ) the petition will fail.

2. If the petitioner is guilty of any matrimonial misconduct, not amounting to ground for
a matrimonial relief, yet sufficiently weighty and grave.

3. If the petitioner is guilty of such act, omission or conduct which makes it

impossible for the respondent to live with him.

Once the petitioner proves that the respondent has withdrawn from his society, the burden
of proving that he/she has withdrawn with reasonable excuse would be on the respondent. A

2 AIR 1954 Punj. 28.

3 AIR 1966 MP 212 (DB).
4 1977 HLR 175.
5 AIR 1978 Del 296.
6 AIR 1987 P & H 37.
7 AIR 1969 Cal 477.
8 AIR 2002 Ori. 5.
petition for restitution will fail if it established that the respondent has withdrawn from
the society of the petitioner with a reasonable excuse for doing so.

JUDICIAL SEPARATION

Under English law, before the Reformation, the marriage was regarded by the church as a
sacrament that made it impossible to get a divorce. In the case of a marriage validly
contracted, the ecclesiastical courts granted divorce from bed and board, not enabling the
parties to remarry. This remedy was not divorce, i.e., it did not dissolve the marriage. This
remedy is now called judicial separation, which allows the parties to live separate from
each other, without dissolution of marriage tie, with a possibility of re-uniting and living
together again if circumstances subsequently change.

Section 23 of the Special Marriage Act provides for the relief of judicial separation.

(1) A petition for judicial separation may be presented to the District Court either by
the husband or the wife:-

(a) on any of the grounds specified in sub-section (1) and sub-section (1A) of Section 27 on
which a petition for divorce might have been presented, or

(b) on the ground of failure to comply with a decree for restitution of conjugal rights; and
the Court, on being satisfied of the truth of the statement made in such petition, and that
there is no legal ground why the application should not be granted, may decree judicial
separation accordingly.

(2) Where the Court grants a decree for judicial separation, it shall be no longer obligatory for
the petitioner to cohabit with the respondent, but the Court may, on the application by
petition of either party and on being satisfied of the truth of the statement made in such
petition, rescind the decree if it considers it just and reasonable to do so.

A district court will entertain a petition for judicial separation either from the husband
or from the wife on any of the following grounds that the respondent:

 Has committed adultery;

 Has deserted the petitioner without cause for a period of two years immediately
preceding the presentation of the petition
  Is undergoing a sentence of imprisonment for seven years or more for an offence as
defined in the Indian Penal Code

 Has treated the petitioner with cruelty

 Has been incurably of unsound mind

 Has been suffering from venereal disease in communicable form

 Has been suffering from leprosy not contracted from the petitioner

 Has not been heard of as being alive for not less than seven years.

Where the petitioner is the wife, she can petition for judicial separation on the additional
ground:

 That since the solemnization of marriage, her husband has been guilty of

1. Rape

2. Sodomy, or

3. Bestiality; or

 That there has not been any cohabitation between her and the husband for not less
than one year after passing a decree or order of maintenance against her husband
in her favour, or

 That there has been non-compliance with a decree for restitution of conjugal rights by
her husband.

The grounds aforesaid are similar to the grounds for divorce under S. 27 of the Act.

On presentation of the petition, the District Court must be satisfied as to the truth of the
statement made in such petition. If the court is satisfied, it will pass a decree of judicial
separation. After the passing of the decree, the parties are at liberty to live apart from each
other. But the court may, on subsequent application by either party, rescind the decree of
judicial separation if it considers it just and reasonable to do so. In a petition for divorce, if the
petitioner fails to establish the alleged ground for divorce, though facts do establish a ground
for judicial separation, the court has power to pass a decree of judicial separation,
even though no such prayer has been made in the petition, as held in Bhagwan v.
AmarKaur9.

The District Court will exercise jurisdiction for the petition of judicial separation provided:

 The marriage of the parties was solemnized, or

 The husband and wife reside, or

 Both the parties resided together within the local limits of that court as provided in
S. 31(1) of the Special Marriage Act.

The decree of judicial separation entitles the parties to live separately and cohabitation as the
essential of marital relation is not obligatory on either party. But it does not break the marital
status of husband and wife. No one can remarry till the decree for divorce. Either party may
present a petition for divorce to the district court on the ground that there has been no
resumption of cohabitation as between the parties for a period of one year or upwards after

passing a decree for judicial separation.10

NULLLITY OF MARRIAGE

The law of nullity relates to the pre-marriage impediments. The subject matter of
impediments to marriage is covered under capacity to marry. If there exist certain
impediments, parties cannot marry each other. If they marry, despite impediments,
their marriage may not be valid. These impediments are usually divided into two:

1. Absolute impediments: If absolute impediments exist, a marriage is void ab initio,

i.e., it is an invalid marriage from the beginning.

2. Relative impediments: If relative impediments exist, a marriage is voidable, i.e.,

it may be avoided by one of the parties to the marriage in case he or she desires.

These impediments have given rise to the classification of marriage into Void and Voidable
Marriages.

9 AIR 1962 Punj 144.

10 Section 27(2)(i), Special Marriage Act.
 1. VOID MARRIAGE:
A void marriage is no marriage, i.e., it does not exist from its beginning. It is called a
marriage because two persons have undergone the ceremonies of marriage. Since they
absolutely lack the capacity to marry, they cannot, just by undergoing ceremonies of
marriage, become husband and wife. In other words, no legal consequences flow from
a void marriage. In respect of void marriages, no decree of court is necessary. Even
when the court passes a decree, it merely declares that the marriage is null and void. It
is not the decree of the court which renders such a marriage void. It is an existing fact
that the marriage is void and the court merely makes a judicial declaration of the fact.
Either party can make a petition of nullity to the marriage under section 24 of the
Special Marriage Act, 1954.

This section corresponds to s. 11 of the Hindu Marriage Act, 1955, s. 18 and 19 of

the Divorce Act 1869 and s. 9 of the Matrimonial Causes Act 1965.

Grounds for void marriage:

A marriage may be declared void by a decree of nullity on the following grounds:
 Any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 of the act
has not been fulfilled. These conditions are as follows:
 Neither party has a spouse living at the time of marriage. The first marriage should
be a valid marriage.
 Neither party is incapable of giving a valid consent
 The male has completed 21 years of age and the female the age of 18 years
 The parties are not within the degrees of prohibited relationship.
 The respondent was impotent at the time of marriage and at the time of institution
of suit. In case of impotency the initial burden is on the petitioner wife to prove
impotency of the respondent husband.

2. VOIDABLE MARRIAGE:
A voidable marriage is perfectly valid so long as it is not avoided. It can be avoided
only on the petition of one of the parties to the marriage. If one of the parties does
not petition for annulment of marriage, the marriage will remain valid. If one of the
parties dies before annulment, no one can challenge the marriage and it will remain
 valid forever. So long as it is not avoided, all the legal consequences of a valid
marriage flow from it. Section 25 of the Special Marriage Act lays down the grounds
for voidable marriages.
According to this section, any marriage solemnized under this Act shall be voidable
and may be annulled by a decree of nullity if:-
(i) the marriage has not been consummated owing to the wilful refusal of the
respondent to consummate the marriage, or
(ii) the respondent was it time of the marriage pregnant by some person other than the
petitioner, or
(iii) the consent of either party to the marriage was obtained by coercion of fraud,
as defined in the Indian Contract Act, 1872 (9 of 1872);

Provided that, in the case specified in clause (ii) the Court shall not grant a decree unless it is
satisfied:-

(a) that the petitioner was at the time of the marriage ignorant of the facts alleged.
(b) that proceeding were instituted within a year from the date of the marriage. and
(c) that marital intercourse with the consent of the petitioner has not taken place since
the discovery by the petitioner of the existence of the grounds for a decree.

Provided further that in the case specified in clause (iii), the Court shall not grant a decree if:-

(a) proceedings have not been instituted within one year after the coercion has
ceased or, as the case may be, the fraud had been discovered, or
(b) The petitioner has with his or her free consent lived with the other party to the
marriage as husband and wife after the coercion had ceased or, as the case may be,
the fraud had been discovered.

This section corresponds to S. 12 of the Hindu Marriage Act 1955, S. 19 of the Divorce Act
1869, S. 32 of the Parsi Marriage and Divorce Act 1936 and S. 9 of the Matrimonial Causes
Act 1965.
Grounds for Voidable Marriage:

 Non-consummation of marriage: The marriage has not been consummated owing to

the wilful refusal of the respondent. In Sunil K. Mirchandani v. Reena S
Mirchandani, where the parties had been living together for about 5 months and letter
written by husband to wife shows his satisfactory sexual relations with her, it could
not be a ground for annulment of marriage under s. 25(1) of the Act.

 Pre-marriage pregnancy: The presumption of law is that a child born during the
continuance of a valid marriage or during 280 days after dissolution that is within the
gestation period, is legitimate unless proven otherwise by strong evidence. There are
certain limitations to the right of the petitioner to institute proceedings on this
ground of pregnancy of the respondent at the time of marriage by a person other than
the petitioner. The court in such cases shall not grant a decree of nullity unless it is
satisfied:

1. That the petitioner was quite ignorant of the fact of pregnancy at the time
of marriage.

2. That proceedings were instituted within one year of the date of the marriage

3. That no marital intercourse with the consent of the petitioner has taken
place since the discovery of the facts alleged.

 Coercion or fraud: If the consent of either party to the marriage was obtained by
coercion or fraud as defined in S. 15 and 17 respectively of the Indian Contract
Act 1872, the marriage can be avoided.

Section 15 defines coercion as committing or threatening to commit, any act forbidden by

the Indian Penal Code or the unlawful detaining or threatening to detain, any property, to the
prejudice of any person whatsoever, with the intention of causing any person to enter into an
agreement.

Section 17 of the Indian Contract Act defines fraud, which means and includes any of the
following acts committed by a party to a contract or with his connivance, or by his agent,
with the intent to deceive another party thereto or his agent or to induce him to enter into the
contract:
 1. The suggestion as to a fact, which is not true by one who does not believe it to be true.

2. The active concealment of a fact by one having knowledge or belief of the fact

3. A promise made without any intention of performing it

4. Any other act fitted to deceive

5. Any such act or omission as the law specifically declares to be fraudulent.

In Gitika Bagchi v Subhabrota Bagchi11, where the wife concealed the fact that she is older
by 3 years than her husband, this amounted to fraud as contemplated in s. 25(iii) of the Act.
12
In Asha Qureshi v Afaq Qureshi , suppression of fact by wife that she was married before
and a widow at the time of second marriage is a material fact and as such it amounts to
fraud exercised on her second husband, he is entitled to decree of nullity.

In case of coercion or fraud the court shall not grant a decree of nullity if

1. Proceedings have not been instituted within one year after the coercion had ceased or
the fraud had been discovered.

2. The petitioner has with his or her free consent lived with the respondent after
the coercion has ceased or the fraud had been discovered.

In such circumstances the acquiescence of the petitioner will be presumed to such an act or
omission, and the right of the petitioner on these scores will be waived.

DIVORCE

Divorce puts an end to the marriage; the parties revert back to their unmarried status, and are
once again free to marry. Section 27 of the act lays down the following grounds for divorce.

 Adultery

Since the solemnization of marriage, the respondent has committed adultery. Adultery is the
matrimonial offence where there is consensual sexual intercourse between a married person and a
person of the opposite sex other than the spouse, during the subsistence of the marriage, as held in
13
Dawn Henderson v D Henderson . In view of the provision (a) of cl. (1) of s. 27 of

11 AIR 1999 Cal 246.

12 AIR 2002 MP 263.
13 AIR 1970 Mad 104 (SB).
the Act, a single act of adultery may be a sufficient ground for divorce. It is not necessary to
prove that the respondent has been ‘living in adultery’ as required in S. 13 of the Hindu
Marriage Act 1955.

In case of adultery, the court must be satisfied beyond reasonable doubt that adultery was
committed. But adultery can very rarely, if ever, be proved by direct evidence of witness. In
most cases therefore the evidence must be circumstantial in character and depends on the
probabilities relating to the situation. However, as in the case of Jyotish Chandra Guha v
MeeraGuha14, mere production of love letters written to wife by a person will not prove
adultery inthe absence of wife’s reciprocity.

 Desertion

The respondent must have deserted the petitioner without cause for a period of not less than 2
years before the presentation of the petition. Desertion in its essence means intentional
permanent forsaking and abandonment of one spouse by the other without the other’s consent
and without reasonable cause. It is a total repudiation of the obligations of marriage.
Desertion is not a withdrawal from a place but from a state of things necessary in a marital
life. It is a continuing offence and must exist for a period of two years immediately preceding
the presentation of the petition. The essential elements of desertion are factum, or physical
separation and animus or intention to desert. All these ingredients must continue throughout
the statutory period. The Doctrine of Constructive Separation is one when one spouse is
forced by the conduct of the other to leave the matrimonial home. The spouse responsible for
the driving out is guilty of desertion. There is no substantial difference between the case of a
man who intends to cease cohabitation and leaves his wife and the case of a man who
compels his wife by his conduct with the same intention to leave him.

15
In Geeta Jagdish Mangtani v Jagdish Mangtani , the wife had deserted the husband after 7
months of marriage on the ground that he had insufficient income. She started living with her
parents and gave birth to a child. She made no attempts to rejoin the husband and continued with
her teaching job. She was aware of the income status of husband before marriage. Under the
16
circumstances desertion on her part was proved. In Sunil Kumar v Usha , the wife left the

14 AIR 1970 Cal 266 (DB).

15 2005 SC 3508.
16 AIR 1994 MP 1.
matrimonial home due to unpalatable atmosphere in the matrimonial home and the reign of
terror prevailing there drove her out. It was held that she was not guilty of desertion.

 Imprisonment

The respondent is undergoing a decree of imprisonment for seven years or more for an
offence defined in the Indian Penal Code. But no decree for divorce shall be granted on this
ground unless the respondent has already undergone at least three years’ imprisonment out of
the said period of seven years or more prior to the presentation of the petition.

 Cruelty

Since the solemnization of marriage, the respondent must have treated the petitioner with
cruelty. The word ‘cruelty’ has not been defined in the Act and as such a broad meaning may
be attached to it. The legal position of cruelty in a divorce proceeding is laid down in
Russellv. Russell17. The legal conception of cruelty is generally described as conduct of such
characteras to have caused danger to life, limb or health (bodily or mental) or as to give rise
to a reasonable apprehension of such danger.

In a divorce proceeding on the ground of cruelty the petitioner must prove that the respondent
has behaved in such a way that the petitioner could not in the circumstances be called upon to
endure and that misconduct has caused injury to health or a reasonable apprehension of such
injury. The standard of proof required is preponderance of probability and not beyond all
reasonable doubts as in criminal proceedings.

 Unsoundness of mind

The respondent must be incurably of unsound mind. The onus of proof is on the petitioner
that the respondent is of unsound mind or has been suffering continuously or intermittently
from mental disorder of such a kind and to such an extent that the petitioner cannot
reasonably be expected to live with the respondent. The petitioner will also have to prove that
the unsoundness of mind is incurable. If the court comes to a finding that the unsoundness of
mind of the respondent is incurable, it does not trouble itself with the degree of unsoundness

of mind for the purpose of decision, as held in Lock v Lock.18

17 [1897] AC 395.
18 [1958] 1 WLR 1248.
  Venereal disease

The respondent must be suffering from venereal disease in a communicable form. Where it is
not contracted from the petitioner who gives evidence to the effect that he or she has not had
intercourse with any person other than the respondent, it is a prima facie case that the
respondent has committed adultery. It is then for the respondent to rebut the prima facie case
against him by calling medical evidence to show that

1. The respondent was not suffering from the disease, or

2. The respondent contracted the disease innocently, or

3. The respondent had not committed adultery.19

The doctor who has personally examined the respondent can only give evidence to this effect.

 Leprosy

The respondent should be suffering from leprosy and the disease must not have been contracted
from the petitioner. It is not necessary to prove that the disease in a communicable form.

 Not heard of as being alive

The respondent has not been heard of as being alive for not less than seven years by the people
who are closely related to the respondent. There is a presumption of death of the person who is
not heard of for 7 years by those who would naturally have heard of him if he had been alive. The
burden of proving that the respondent is alive is on the person who affirms it.

 Husband guilty of rape, sodomy or bestiality

The wife can make a petition for divorce in the District Court on the ground that since the
solemnization of marriage her husband has been guilty of rape, sodomy and bestiality. These are
also grounds for criminal prosecution. But the conviction of the husband on these grounds of
criminal offence is not sufficient to grant a decree of divorce. The commission of offence must be
proved de novo either by calling witnesses by the petitioner or by admission of the guilt by the
respondent the court will decide whether corroboration is desirable of any evidence.

19
Anthony v Anthony, [1919] 35 TLR 559.
  Decree or order of maintenance obtained by wife

The wife can also make a petition for divorce on the ground that she has obtained a decree or
order of maintenance and she is living apart since the passing of such decree or order and
cohabitation between her and her husband has not resumed.

 No resumption of cohabitation after a decree of judicial separation

The parties have not resumed cohabitation for not less than one year after passing of a decree
of judicial separation as between them. The intention of the legislature to give the parties
such space and time is the possibility of reconciliation. In the absence of any such change of
mind of the parties, the legislature thinks that there is no justification for keeping the right of
cohabitation available to the parties for any further period. Each case is to be decided
according to its peculiar facts and circumstances. A single act of cohabitation does not
amount to resumption of cohabitation.

 Non compliance with a decree for restitution of conjugal rights

There has been no restitution of conjugal rights between the parties for a period of not less
than one year after the passing of a decree of restitution of conjugal rights.

Section 28 Divorce by mutual consent:–(1) Subject to the provisions of this Act and to
therules made there under, a petition for divorce may be presented to the District Court by
both the parties together on the ground 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.

(2) On the motion of both the parties made not earlier than six months after the date of the
presentation of the petition referred to in subsection (1) and not later than eighteen months] after
the said date, if the petition is not withdrawn in the meantime, the District Court shall, on being
satisfied, after hearing the parties and after making such inquiry as it thinks fit that a marriage
has been solemnized under this Act, and that the averments in the petition are true, pass a decree
declaring the marriage to be dissolved with effect from the date of the decree.

This section has incorporated in the doctrine of discharge from contractual obligation by
mutual consent of the parties. A special marriage is nothing but a contractual bondage that
can be severed like ordinary contract. Considering the vital importance and necessity of
marital life in society a special statute is made incorporating the basic principles of law of
contract therein. The Special Marriage Act has gone far ahead the English law of dissolution of
marriage, and has simplified the severance of matrimonial tie even by mutual consent.

Even if dissolution of marriage by mutual consent is sought by a joint petition of the husband
and wife still it is incumbent on the court to comply with the mandatory provisions of s.
34(2) of the Act to make attempt for reconciliation between the parties.

Under Section 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.
 BIBLIOGRAPHY

Websites Referred:

 www.academia.edu
 www.indiankanoon.org
 www.scconline.com
 www.scribd.com

Books Referred:

 Dr. Basant K. Sharma, Hindu Law.

 Tahir Mahmood, Studies in Hindu Law.

 Universal's Legal Manual, Marriage and Divorce

Laws, Edition 1st, publication of Universal Law
Publishing 2018