Divorce is the golden key to the legal cage of marriage.

The term divorce comes from the

Latin word Divortium which means to turn aside, to separate. It is the legal cessation of a
matrimonial bond.

Special Marriage Act, 1954

The divorce provision under Special Marriage Act, 1954, is contained in Section 27 which
is as follows:

Section27 Divorce- 1) Subject to the provisions of this Act and to the rules made
thereunder, a petition for divorce may be presented to the district court either by the husband
or the wife on the ground that the respondent;

a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any
person other than his or her spouse.

Explanation: The aggrieved spouse may seek either a divorce or a separation on the
ground that the respondent has after the solemnization of the marriage, had voluntary sexual
intercourse with any person other than his or her spouse.

Act Provision Relief

Hindu Marriage Act, Voluntary sexual Divorce or judicial

1955 intercourse after marriage separation.
Section 13(1)(i) and with any other person
Section 10. other than the spouse.

Special Marriage Act, Voluntary sexual Divorce or judicial

1954 intercourse after marriage separation.
Section 27 (1)(a) and with any other person
Section 23(1)(a). other than the spouse.

b) has deserted the petitioner for a continuous period of not less than two years immediately
preceding the presentation of the petition. Section 27 of the Special Marriage Act, 1954
enumerates the grounds for divorce of which desertion is one of the grounds. When one
spouse leaves the other, which is not justifiable the deserted spouse has a very remedy by way
of matrimonial relief.

As pointed out by the Apex Court in Savitri Pandey v. Prem Chandra Pandey, two elements
are essential so far as the deserted spouse is concerned:

i) The absence of consent;

ii) Absence of conduct, giving reasonable cause to the spouse leaving the
matrimonial home to form the necessary intention aforesaid.

Act Provision Relief

Hindu Marriage Act, 1955 Desertion for less than 2 Divorce or judicial
Sections 13(1)(b) and
years. separation.
Section10

Special Marriage Act, Desertion for less than 2 Divorce or judicial

1954 years. separation.
Section 27 and Section 23

c) is undergoing a sentence of imprisonment for seven years or more for an offence as

defined in the Indian Penal Code (45 of 1860); This proviso was omitted by Act 68 of 1976,
Section 27 (w.e.f 27-5-1976).

d) has since the solemnization of the marriage treated the petitioner with cruelty. Cruelty is a
ground for divorce as well as for judicial separation. Section 27(c) states that, a marriage may
be dissolved on the ground that the other party has after the solemnization of the marriage,
treated the petitioner with cruelty. Prior to 1976, cruelty was only a ground for judicial
separation. Another significant change brought about by the 1976 Amendment is that the
concept of cruelty has been enlarged. Earlier, it was confined to such cruelty so as to cause
reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for
the petitioner to live with the other party. However, now the petitioner has simply to
establish that the respondent has treated the petitioner with cruelty.
 Act Provision Relief
Hindu Marriage Act, 1955 Treated petitioner with Divorce or judicial
Section 13(1)(i) and cruelty after marriage. separation.
Section 10.

Special Marriage Act, Treated petitioner with Divorce or judicial

1954 cruelty after marriage. separation.
Section 27(1)(d) and
Section 23.
e) has been incurably of unsound mind of 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.

Explanation: Section 27(e) of the Special Marriage Act; if either party to the marriage is: (a)
incapable of giving solid consent to it in consequence of unsoundness of mind; or (b) though
capable of giving a solid consent, has been suffering from mental disorder of such a kind or
to such an extent as to be unfit for marriage and the procreation of children; or (c) has been
subject to recurrent attacks of insanity, then the marriage shall be voidable and shall be
annulled by decree of nullity.

Act Provision Relief

Hindu Marriage Act, 1955
1) Section 5(11) coupled Incapable of consent, or unfit Annulment
with Section 12(1)(b) for marriage and procreation
or re-current attacks of
2) Section 13(1)(iii) insanity.
Continuous, intermittent
mental disorder to an extent Divorce
that petitioner cannot be
expected to live with the
respondent.
Special Marriage Act, 1955
1) Section 4(b) coupled Incapable of consent, or unfit Annulment
with Section 24 for marriage and procreation
or re-current attacks of
insanity.
2) Section 27(e) Continuous, intermittent
Divorce
mental disorder to an extent
that petitioner cannot be
expected to live with the
respondent.

f) has been suffering from a venereal disease in a communicable form;

Venereal disease in a communicable form is a ground for divorce.

Act Provision Relief

Hindu Marriage Act, 1955 The disease must be Divorce
Section 13(1)(v) communicable.

Special Marriage Act, 1954 The disease must be Divorce

Section 27(f) communicable.

g) has been suffering from leprosy, the disease not having been contracted from the
petitioner;
Under Hindu Marriage Act, 1955 as amended in 1976, divorce is available if the other party
is suffering from virulent and incurable form of leprosy.

Under Special Marriage Act, 1954 also leprosy is a ground for divorce with a difference that
in case of leprosy, the disease need not be virulent or incurable though it should not have
been contracted from the petitioner.

Act Provision Relief

Hindu Marriage Act, 1955 Disease (leprosy) to be Divorce
Section 13(1)(iv) virulent and incurable.

Special Marriage Act, 1954 Leprosy need not be virulent Divorce

Section 27(g) or incurable, but must not
have been contracted from
petitioner.

h) has not been heard of as being alive for a period of 7 years or more by those persons who
would naturally have heard of the respondent if the respondent had been alive.

Amongst the rarely resorted grounds for divorce is that the respondent has not been heard of
as being alive for a period of 7 years or more by those persons who would have naturally
heard of it had the respondent been alive. This ground is provided in Section 27(1) of the
Special Marriage Act, 1954.

1(A). A wife may also present a petition for divorce to the district court on the ground-
 i. that her husband has, since the solemnization of the marriage been
guilty of rape, sodomy or bestiality; A wife can seek divorce also
on the ground that since the solemnization of the marriage, the
husband has been guilty of rape or sodomy or bestiality.
Any of the offences must have been committed since the
solemnization of the marriage and not prior to that. Also, mere
attempt to commit, or request to commit such an act is not covered
in this clause.
ii. that in suit under section 18 of Hindu Adoptions and Maintenance
Act, 1956, or in a proceeding under Section 125 of Crpc, a decree
or order, as the case may be, has been passed against the husband
awarding maintenance to the wife notwithstanding that she was
living apart and that since the passing of such a decree or order,
cohabitation between the parties has not been resumed for one year
or upwards. Non-resumption of cohabitation for period of one
year or more after the passing of a decree for maintenance under
Section 18 of Hindu Adoption and Maintenance Act, 1956, or
Section 125 of the Crpc 1973, or Section 488 of the old code
corresponding with present Section 125, is another ground on
which a wife can file a petition for divorce. This ground was added
in 1976.

2. Subject to the provisions of this Act and the rules made thereunder, either party to a
marriage, whether solemnized before or after commencement of the Special Marriage Act,
1976, may present a petition for divorce to the District Court on the ground-

i. that there has been no resumption of cohabitation as between the

parties to the marriage for a period of one year or upwards after the
passing of a decree for judicial separation in a proceeding to which
they were parties. Prior to 1964 a petition for divorce would be
filed only by a party who had obtained a decree for judicial
separation or restitution. The party against whom the decree was
passed had no locus standi. Also, a period of two years was
prescribed before such decree could be used a ground. The result
was that quite often a spouse would simply obtain a decree for
 restitution (without any intention to resume cohabitation) or
judicial separation and then keep quiet. Thus the marriage was kept
legally intact but practically dead. The judgement debtor had no
right to go to court for divorce and the decree holder, for reasons
which could be social, economic or personal, could block the way
of the other party by neither resuming cohabitation nor seeking a
divorce. In 1964 the provision was amended and section 13(1)(a)
was introduced.
ii. that there has been no restitution of conjugal rights as between the
parties to the marriage for a period of one year or upwards after
passing of a decree for restitution of conjugal rights in a proceeding
to which they were parties.

Act Provision Relief

Hindu Marriage Act, 1955
Section 13(1A)(ii)
Section 13(1A)(ii)
Non-resumption of Divorce relief available to
cohabitation for a year or the parties.
more after decree of
judicial separation.

Non-compliance of degree Divorce relief available to

of restitution of conjugal the parties.
rights for a year or more.
Special Marriage Act,
1954
Non-resumption of
Section 27(2)(ii)
conjugal rights for a period Divorce relief available to
of one year or more after a the parties.
Section 27(2)(ii) restitution decree.
Non-restitution of conjugal
rights for a period of one
year or more after a Divorce relief available to
the parties.
restitution decree
 Section 27A- Alternate relief in divorce proceedings

In any proceedings under this Act, on a petition for dissolution of marriage by a decree of
divorce, except in so far as the petition is founded on the ground mentioned in clause(h) of
sub-section (1) of Section 27, the court may, if it considers it just so to do having regard to
the circumstances of the case, pass instead a decree of for judicial separation.

The court always grants the remedy which has been asked for by the parties but Section
27(A) is an exception to this rule as under this section the court can grant suo-moto relief of
judicial separation in any petition which has been filed for dissolution of marriage under
Section 27 instead of passing a decree of divorce.

But there are certain exceptional situations where court cannot exercise this extra-ordinary
power and those exceptional situations are:

Where the person has not been heard alive for period of 7 years or more (presumption of civil
death).

Divorce by Mutual Consent

Section 28, Divorce by Mutual Consent- Subject to the provisions of this Act and to the rules,
a petitioner for divorce may be presented 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 this marriage should be dissolved.
 2. On the motion of both the parties made not earlier than 6 months after the date of
the presentation of the petition and not later than 18 months, if the petition is not
withdrawn in the meantime, the District Court, shall, on being satisfied, after hearing
the parties and after making such enquiry as it thinks fit, that the averments are true,
pass a decree, declaring the marriage to be dissolved with effect from the date of the
decree. The requirements which have to be compiled with under this provision are:

i. The parties have been living separately for a period of at least one year.
ii. They have not been able to live together.
iii. They have mutually agreed to have the marriage dissolved

After filing of petition under Section 13(B)(1), there are certain, mandatory obligations
that are to be fulfilled by the parties as well as court.

a) Obligations of filing joint motion on the parties.

1. After filing of petition, joint motion has to be filed by the parties.

2. This section also prescribes the time period during which joint motion has to be filed.
3. This period is not earlier than 6 months after the date of presentation of petition and
not later than 18 months, after the said date, if the petition is not withdrawn in the
meantime.
4. Thus Section 13(B)(2) provides a cooling down period of 6 months in order to give
one more opportunity to the parties concerned for re-conciliation.

b) Obligation imposed on the court under Section 28(2). This section states that after
filing of joint motion, court will further examine :-
1. Averments made in petition are correct.
2. Call the parties and listen to them.
3. Make enquiry, if the court thinks fit.

In order to relief under provisions of the Act, it is mandatory that marriage should either have
been performed under the provisions of this Act, or registered thereunder.

Case- Reynold Rajamani v Union of India