Contemplating Divorce

How to get a divorce under Special Marriage Act, 1954

How to get a divorce under Special Marriage Act, 1954

‘Until death, do us apart’ is the intention with which every marriage begins. Unfortunately, that’s not always how every marriage ends.

If you are headed for a divorce, it’s important that you have a comprehensive view of the process, timelines etc. so that you can prepare yourself mentally. In India, depending on the provisions of law under which the marriage was performed, the procedure for filing and obtaining the divorce will be different, and so will the grounds on which the divorce can be sought.

In this article, we will restrict the discussion to marriages that are performed and registered under the Special Marriage Act, 1954 (SMA). To know if your marriage falls within the purview of SMA, please read through the detailed article here. If you are sure of the same, read further to understand what you need to know before you go ahead with the divorce proceedings.


Understanding Mutual Consent and Contested Divorce

A divorce by mutual consent is one where the husband and wife have mutually and amicably decided to end their marriage on mutually acceptable terms and file for the divorce accordingly. After getting a divorce, their marital relations come to an end, and they have no legal obligations to each other except for whatever has been agreed upon by them in the Consent Terms that they file in the Court.

Whereas, contested divorce proceedings have a couple of variations viz., one where both the husband and wife want a divorce but are not able to agree on the terms of separation and hence, contest these in the Court. The other type is where either the husband or the wife wants a divorce, and the other spouse does not want a divorce. Whatever the case might be, unless you are completely sure about the legal position that you are in and the ramifications of the same, you will need to speak to a licensed legal practitioner to understand how to proceed to obtain a divorce.



What are the grounds on which you can seek a divorce?

As per Section 27 of the SMA, given below are some of the grounds on which, either the husband or the wife can seek a divorce (the grounds are not verbatim and are simplified for this article):

  • Either party has had voluntary sexual intercourse outside of the marriage
  • Either party has deserted the spouse for more than 2 years
  • Either party is undergoing imprisonment for 7 years or more
  • Either party has treated the other party with cruelty
  • Either party is of unsound mind
  • Either party is suffering from a communicable venereal disease
  • Either party has not been heard of as alive for more than the last 7 years
  • There has been no restitution of conjugal rights between the parties for more than one year after a decree for restitution of conjugal rights was passed


In addition to the above grounds, a wife, in particular, may present a petition for divorce on the following grounds:

  • The husband has committed rape, sodomy or bestiality
  • When in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974), (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), an order has been passed against the husband awarding maintenance to the wife, regardless of the fact that they were not living together and that even after the decree was passed, the parties have not started living together

If you choose to adopt any of the above grounds for divorce, the proceedings shall be contested proceedings, as the other party, invariably will contest the allegations and try to prove that the allegations are false. It will be a really rare occurrence if the husband or the wife against whom, any of the allegations (grounds) as stated above are made, accepts the same. In that scenario, the proceedings shall not be contested, but neither shall they be proceedings classified as divorce by mutual consent, as is provided for under the SMA.

However, it is also seen that during the proceedings of a contested divorce, the parties, despite the acrimony between them, arrive at a decision to get a divorce on mutually acceptable terms. At that point, the Court has the authority to grant a decree of divorce to the parties based on the Consent Terms that they file before the Court.


What is the procedure for getting a divorce under the SMA?

Regardless of whether the divorce proceedings are contested or by mutual consent, a petition for divorce can only be presented to the District Court after one year has passed since the date of entering the certificate of marriage in the Marriage Certificate Book (which is basically the same date as your ‘Court Marriage’). For instance, if your ‘Court Marriage’ was on 12th March 2019, you cannot file for divorce before 12th March 2020.

However, the District Court may allow a petition to be filed before one year has passed under exceptional circumstance, which can only be determined on a case to case basis.

In the proceedings for a divorce by mutual consent, in addition to the above condition, the couple also needs to have lived apart for more than a year before the petition for divorce was filed. After filing the petition for divorce, the couple will be required to wait for an additional 6 months at least before the decree for divorce may be passed by the Court. The couple have to ensure that they approach the Court within 18 months from the date of filing to get a decree of divorce.


Can I get remarried immediately after I get a divorce?

The appropriate answer to this question would depend on the facts and circumstances of a particular case. In the case of divorce by mutual consent, there is no right of Appeal against the decree since the divorce decree is by mutual consent. Under Indian law, if there is any order or decree that is passed by the mutual consent of the parties to the proceedings, there can be no challenge to that decree/order. Except where it is proved that the said order or decree was obtained by fraud, coercion, undue influence, etc. However, in those circumstances, the burden of proof is extremely heavy upon the one alleging such wrongdoing. So, for anyone who has obtained a divorce by mutual consent, he/she can get married upon obtaining the decree of divorce.

In the case of a decree of divorce granted in contested proceedings, the answer is not straight-forward. The other party, whether it is the husband or the wife, may file an Appeal. If a stay is granted to the divorce decree in the Appeal, then the marriage would still be alive and not terminated. Only after the final outcome of the Appeal can you know whether the divorce decree has been upheld or has been set aside. Only if the Appeal has been dismissed, can the party intending to remarry can do so.

There is a specific time granted to file an Appeal against the decree, and if until the lapse of that said time period, no Appeal has been filed, the party intending to remarry can do so.

Note: There are other provisions under the SMA, regarding judicial separation, alimony, succession, etc. that you need to be aware of. Only a licensed legal practitioner can adequately advise you on the best course to adopt that will suit your requirements. Please remember that although the law is the same for all, it can never be ‘one size fits all.’



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