Conditions of Divorce Under Special Marriage Act

NAME : A. Karan Raj

REGISTER NO : 18BLA1058

SUBJECT : Family Law

SUBMITTED TO : Jishnu
 Divorce :
Divorce puts an end to marriage; the parties return to their unmarried status and
are free to marry again. The grounds for divorce are set out in Section 27 of the
Act.

Grounds for Divorce :

The District Court is the proper forum for filing a divorce petition on any of the
following grounds:

Adultery
The respondent to the case has committed adultery since the solemnization of
the marriage. Adultery is the matrimonial offence in which a married person and
a person of the opposite sex, other than the wife, have consensual sexual
intercourse during the subsistence of the marriage, as held in Dawn Henderson
v. D Henderson, AIR 1970 Mad 104 (SB). In view of provision (a) of cl. (1) of s.
27 of the Act, a single act of adultery may constitute an adequate ground for
divorce. As required in Section 13 of the Hindu Marriage Act, 1955, it is not
necessary to prove that the respondent was ‘living in adultery’. 

In the case of adultery, the court must be satisfied that adultery has been
committed, beyond a reasonable doubt. But adultery can, if ever, be proven very
rarely by direct evidence of the witness. Therefore, in most cases, the evidence
must be circumstantial in nature and depends on the probabilities of the situation.
However, as in the case of Jyotish Chandra Guha v. Meera Guha, AIR 1970 Cal
266 (DB), in the absence of wife’s reciprocity, the mere production of love letters
written by a person to a wife will not prove adultery.

Desertion
The respondent must have deserted the petitioner without cause for at least 2
years before the petition was submitted. In essence, desertion means intentional
permanent forsaking and abandonment of one spouse by the other without the
consent of the other and without reasonable cause. It is a complete repudiation
of the marriage obligations. Desertion is not a withdrawal from a place, but from a
state of things that are necessary for marital life. It is a continuing offence and
must exist for two years immediately before the petition is presented. The
essential elements of desertion are factum or intention to desert or physical
separation and animus. All these ingredients must remain in place during the
statutory period. The Doctrine of Constructive Separation is one when one
spouse is compelled to leave the matrimonial home by the conduct of the other.
The spouse that drives out is guilty of desertion. There is no significant difference
between the case of a man who intends to stop cohabitation and leaves his wife
and the case of a man who compels his wife to leave him with the same intention
through his conduct.

In Geeta Jagdish Mangtani v. Jagdish Mangtani, 2005 SC 3508, on the ground

that the husband had inadequate income, the wife had abandoned him after
seven months of marriage. She began to live with her parents and gave birth to a
child. She did not attempt to rejoin the husband and continued her job as a
teacher. She knew about the husband’s income status before marriage.
Desertion on her part has been proved under the circumstances. Due to the
unpalatable atmosphere in the matrimonial home, the wife left the matrimonial
home in Sunil Kumar v. Usha, AIR 1994 MP 1, and the reign of terror that
prevailed there drove her out. She was held not guilty of desertion.

Imprisonment
The respondent is subject to a seven-years or more imprisonment decree for an
offence laid down in the Indian Penal Code. On this ground, however, no decree
for divorce shall be granted unless the respondent has already been imprisoned
for at least three years out of the said period of seven years or more prior to the
petition being presented.

Cruelty
Since the marriage solemnization, the petitioner must have been treated with
cruelty by the respondent. The term’ cruelty’ was not defined in the Act and could
be attached to it as such a broad meaning. Russell v. Russell, [1897] AC 395,
laid down the legal position of cruelty in divorce proceedings. The legal concept
of cruelty is usually described as the conduct of such a character as to have
caused risk to life, limb or health (physical or mental) or to give rise to a
reasonable apprehension of such danger.

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

Unsoundness of mind
The respondent must be of unsound mind, which is incurable. The burden of
proof lies with the petitioner that the respondent is of unhealthy mind or has
suffered from such a kind of mental disorder continuously or intermittently and to
such an extent that it is not reasonable to expect the petitioner to live with the
respondent. The petitioner will also need to prove that the unsoundness of mind
is incurable. If the court finds that the respondent’s unsoundness of mind is
incurable, it does not interfere with the degree of unsoundness of mind for
decision-making purposes, as stated in Lock v. Lock, [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 provides evidence that
he or she has not had any intercourse with any person other than the
respondent, it is a prima facie case that the respondent had committed adultery.
It is then up to the respondent to refute the prima facie case against him by
calling for medical evidence to demonstrate that:

1. The respondent did not suffer from the disease, or

2. The respondent innocently contracted the disease, or
3. The respondent had not committed adultery. 
4. The doctor who examined the respondent personally can only provide
evidence to this effect.

Leprosy
The respondent should have been suffering from leprosy and the disease must
not be contracted from the petitioner. Proving the disease have a communicable
nature is not necessary.

Not heard as being alive

The respondent has not been heard by people who are closely related to the
respondent as being alive for not less than seven years. If the person is not
heard of for 7 years by those people who would naturally have heard of him
being alive, then it is presumed that the person is dead. The burden of proving
that the respondent is alive lies with the person who asserts it.

Husband is guilty of Rape, Sodomy or Bestiality

The wife can make a petition at the District Court on the ground that her husband
has been guilty of rape, sodomy, and bestiality since the solemnization of
marriage. These are also grounds for prosecution on criminal charges. However,
the husband’s conviction on these grounds of criminal offence is not enough to
grant a divorce decree. The commission of the offense must be proven de novo
either by the petitioner calling witnesses or by the respondent admitting guilt; the
court will decide whether any evidence is desirable to be corroborated.

Decree or order of maintenance obtained by the wife

The wife can also file a divorce petition on the ground that she has obtained a
decree or maintenance order and since the passing of such decree or order, she
has been living apart and has no resumed the cohabitation between her and her
husband.

No resumption of cohabitation after a decree of judicial

separation
The parties have not resumed cohabitation for at least one year after the passing
of a decree of judicial separation. The legislature’s intention to give such space
and time to the parties so there would be a possibility of reconciliation between
the parties. In the absence of any such change of mind of the parties, the
legislature believes that for any further period there is no justification for keeping
the right of cohabitation available to the parties. Based on their peculiar facts and
circumstances, each case has to be decided. A single act of cohabitation does
not mean the 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 decree of restitution of conjugal rights has
been passed.
Divorce by Mutual Consent
Under section 28 of the Act, which deals primarily with 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 may be filed with the
District Court by mutual consent. The following are some key points to consider
when seeking a divorce by mutual consent: 

1. Both parties must present a petition for divorce to the District Court
together.
2. There must be a petition on the grounds, 

They lived separately for a period of one year or more. 

That they were not able to live together. 

That they agreed to dissolve the marriage mutually.

3. Only after one year from the date of entering the wedding certificate
in the Marriage Certificate Book then only the petition can be presented.
However, in instances where the petitioner suffers extraordinary hardship or in
instances of extraordinary depravity on the part of the respondent, relaxation may
be provided.
4. The petition seeking divorce by mutual consent could be submitted to
a district court within its jurisdiction, either, 

The marriage was solemnized. 

The respondent resides, or where the wife resides, in the case where the wife is
the petitioner. 

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, the date of filing of the
petition for seeking divorce by mutual consent, both parties must make a motion
together for seeking a decree of divorce.
6. Among other aspects, the District Court considers the following,
before passing a divorce decree, 

 That the petition has not yet been withdrawn. 

 That under the Act, marriage has been solemnized. 
 That the petitioner’s averments are true. 
 The divorce consent was not obtained through force, fraud or undue
influence. 
 That there was no unnecessary or inappropriate delay in
commencing the proceedings.

Thus, the provisions and procedures under the Special Marriage Act for acquiring
divorce by mutual consent are relatively straightforward and fairly simple.

However, parties wishing to obtain a divorce by mutual consent must bear in

mind that the Act also contains provisions dealing with the granting of alimony
and maintenance, both permanent and during the pendency of the proceedings.
In cases of divorce by mutual consent, the parties may agree on the terms
relating to the payment of alimony or maintenance and the same may be
incorporated in the pleadings before the Court. However, care must be taken to
incorporate the appropriate provisions in the pleadings in order to avoid future
misunderstandings or litigation. Therefore, while discussing the various issues
related to seeking a divorce by mutual consent with their advocates, it is
advisable that the parties should specifically discuss their arrangement and
alimony and maintenance arrangements, and take appropriate steps to ensure
that their interests are safeguarded.
Restriction on Divorce during 1st year of the
marriage
Any person who is married under the Special Marriage Act must be aware of this
important provision of the Act. Unless and until one year has expired from the
date of their marriage as recorded in the marriage books, the parties may not
apply for divorce in the District Court. However, in cases where the court
considers that the petitioner has suffered exceptional hardship or the respondent
has shown exceptional depravity on his part, a request for divorce would be
retained, but if there is any misrepresentation on the part of the petitioner to
apply for divorce before the expiry of 1 year, the court may, if any order has been
passed, state that order to take effect only after the expiry of 1 year, as
mentioned in Section 29 of the Act.