What is the process of divorce under Special Marriage Act?

The Special Marriage Act, 1954 provides a secular framework for the solemnization of marriages between individuals of different religions or for those who choose not to follow religious ceremonies. It also allows individuals who are married under the Act to seek a divorce. The process of divorce under the Special Marriage Act is governed by Section 27 of the Act. The divorce process is similar to other divorce laws but has some distinct features due to its secular nature and the absence of any religious restrictions.

Divorce Process Under Special Marriage Act:

Grounds for Divorce:

• Mutual Consent: Both spouses agree to the divorce and consent to its terms.
• Cruelty: One spouse has treated the other with cruelty, making it impossible to live together.
• Adultery: One spouse has engaged in sexual relations outside the marriage.
• Desertion: One spouse has deserted the other for a continuous period of at least two years.
• Conversion to Another Religion: One spouse has converted to a different religion.
• Mental Illness: One spouse has been suffering from mental illness for at least two years.
• Inability to have sexual intercourse: One spouse is unable to engage in sexual intercourse, either due to physical or psychological reasons.
• Separation for more than two years: If the couple has been living separately for a period of at least two years and neither spouse wishes to continue the marriage, a divorce can be filed.

Types of Divorce:

Divorce by Mutual Consent (Section 28):

• This is the most straightforward and less time-consuming way to get a divorce under the Special Marriage Act. If both parties agree to the divorce and have settled all issues, including alimony, child custody, and division of property, they can file a petition for divorce by mutual consent.

Contested Divorce (Section 27):

• If one party does not agree to the divorce or if there are disputes regarding the grounds, the divorce becomes contested. The spouse seeking the divorce will have to prove the grounds (such as cruelty, adultery, etc.) in court.

Filing the Divorce Petition:

Where to File:

• A divorce petition under the Special Marriage Act can be filed in the family court in the area where either of the spouses resides. In case of mutual consent, both spouses can file the petition together in the same court.

Documents Required:

• The petitioner must submit various documents, including marriage certificates, proof of residence, identity proof, evidence supporting the grounds for divorce, and details of any children (if applicable).

Petition Format:

• The divorce petition must be drafted with the help of a lawyer and should include personal details of both spouses, the marriage date, the grounds for divorce, and any other relevant information.

Procedure for Divorce by Mutual Consent:

First Motion (Section 28):

• Both spouses file a joint petition for divorce, stating that they have been living separately for at least one year and have mutually agreed to end the marriage. The first motion is filed in court, along with a statement regarding the terms of divorce (e.g., alimony, custody of children, division of property).

Waiting Period:

• After the first motion is filed, the court grants a waiting period of six months. The purpose of this waiting period is to allow the couple time to reconsider their decision. In some cases, the waiting period may be waived by the court if it believes that there is no chance of reconciliation.

Second Motion:

• After the waiting period, both spouses must appear before the court for the second motion. If both parties confirm that they still wish to proceed with the divorce, the court will grant the divorce.

Final Decree:

• Once the second motion is accepted, the court issues the final decree of divorce. This legally dissolves the marriage.

Procedure for Contested Divorce:

Filing the Petition:

• In contested cases, the spouse seeking divorce must file a petition stating the grounds for divorce (e.g., cruelty, adultery, desertion). The court then issues a notice to the respondent (the other spouse).

Respondent’s Reply:

• The respondent is required to submit a reply to the petition, either denying or agreeing to the allegations made in the petition.

Evidence and Cross-Examination:

• Both parties must present evidence to support their case. This can include testimonies, documents, medical reports, etc. The court may also allow the parties to cross-examine each other.

Judgment:

• If the court is satisfied with the evidence presented and believes that the grounds for divorce are valid, it will grant a divorce decree. The process can take a long time depending on the complexity of the case.

Legal Separation:

• Before filing for divorce, the court may grant judicial separation, which is an order that allows the spouses to live separately but does not legally dissolve the marriage. Judicial separation can be a step towards divorce, and it allows the spouse to apply for a divorce after living separately for a year or more.

Alimony and Maintenance:

Spousal Support:

• The court may order one spouse to pay alimony to the other, depending on the financial situation of the parties. In cases of mutual consent, the spouses can settle the alimony amount in their agreement.

Child Custody:

• If children are involved, the court will decide on custody arrangements, keeping the best interest of the child in mind. The spouses can also mutually agree on custody, but the court will make the final decision.

Appeal:

• If a divorce decree is issued by the court, and either party is dissatisfied with the judgment, they have the right to file an appeal in a higher court within a specified period (usually 90 days).

Key Considerations for Divorce Under the Special Marriage Act:

Secular Nature:

• The Special Marriage Act applies to people of any religion and provides a secular platform for marriage and divorce. This is unlike personal laws that are specific to different religions (e.g., Hindu Marriage Act, Muslim Personal Law, etc.).

Waiting Period for Divorce by Mutual Consent:

• The mandatory waiting period of six months (after the first motion) can be waived if the court believes that the parties have made their decision and there is no chance of reconciliation. This is usually at the discretion of the court.

Jurisdiction:

• The divorce petition can be filed in the family court located where either of the spouses has resided for the past year. It is important to note the jurisdictional aspect when filing the petition.

Mediation:

• In contested divorce cases, the court may suggest mediation or counseling to try and resolve the issues before proceeding with the divorce. If the mediation is successful, the marriage may be saved without the need for divorce.

Duration of Divorce Proceedings:

• Divorce under the Special Marriage Act can take a few months to years, depending on whether the divorce is contested or by mutual consent. Contested divorces tend to take longer due to the litigation involved.

Example:

Scenario: Anand and Meera have been married for seven years. They have been living separately for two years due to marital issues and have mutually agreed to end their marriage. They both want a divorce under the Special Marriage Act, 1954.

Steps They Should Take:

• Joint Petition: Anand and Meera file a joint petition for divorce by mutual consent under Section 28 of the Special Marriage Act, mentioning that they have been living separately for more than a year and agree to the terms of divorce (alimony, child custody, etc.).
• First Motion: They file the first motion with the court. The court acknowledges their petition and grants them a waiting period of six months.
• Second Motion: After six months, Anand and Meera appear in court for the second motion. Both confirm that they still wish to proceed with the divorce, and the court grants them a divorce decree.
• Final Decree: The court issues the final decree of divorce, legally dissolving their marriage.