Divorce means the dissolution of marriage. It is the process of terminating a marriage or marital status. The Hindu Marriage Act, 1955 govern Hindus (which includes Sikh, Jain, Buddhists). Christians are governed by Indian Divorce Act-1869 & The Indian Christian Marriage Act, 1872. Muslims are governed by Personnel laws of Divorce and also the Dissolution of Marriage Act, 1939 & the Muslim Women Act, 1986. Similarly, Parsis are governed by The Parsi Marriage & Divorce Act-1936. Moreover, there is also a secular law called the Special Marriage Act, 1954.
The Special Marriage Act, 1954 is enacted to provide a special form of marriage for the Indian people and all other Indian nationals residing in foreign countries, irrespective of the religion followed by either party. Personal laws do not govern marriages solemnized under the Special Marriage Act. The Special Marriage Act was drafted into the Indian legal system in the year 1954 as one of independent India’s most prominent secular measures. The Act was designed to be a legislation that governs marriages which could not be solemnized under the various religious customs. The Act applies to all Indian citizens, whether residing in India or abroad. The State of Jammu and Kashmir is excluded under the ambit of this Act, though residents domiciled in other states but residing in Jammu and Kashmir would qualify for these provisions.
The Special Marriage Act, 1954 has replaced the old Act III of 1872. There are three primary objectives of the Act:
- To provide a particular form of marriage in some instances,
- To provide for the registration of certain marriages and,
- To provide for divorce
The Act applies to the following:
- Any person, irrespective of religion.
- Hindus, Muslims, Jains, Sikhs, Christians, Buddhists, Parsis, or Jews can also perform marriage under the Special Marriage Act, 1954.
- Inter-religion marriages performed under this Act.
- It applies to the entire territory of India (excluding the state of Jammu and Kashmir) and also extends to the spouses who are both Indian and living abroad.
- Indian national living abroad.
Conditions for Marriage
- The party involved should have no other existing valid marriage.
- The groom must have completed at least 21 years old; the bride must be at least 18 years old.
- The parties should be competent regarding their mental capacity to the extent that they can give valid consent for the marriage.
- The parties shall not fall within the degree of prohibited relationship.
Marriages under this Act are endorsed based on the following conditions:
- No party of the marriage has a living spouse.
- No party is incapable of consenting to the marriage owing to unsound mind.
- Neither of the parties is affected with any mental disorder rendering them unfit for marriage and for procreation of children.
- Neither of the parties is subject to constant attacks of epilepsy or insanity.
- The bridegroom and the bride have attained the age of 21 and 18, respectively.
- The parties are not within the confines of a prohibited relationship. It may be noted that if a custom governing at least one of the parties does not prohibit marriage between both, the marriage can be solemnized under this Act.
Court Marriage is a union of two souls where the ceremony of the oath is performed as per the Special Marriage Act-1954 before the Registrar of Marriage. It is registered in the presence of three witnesses; then a marriage certificate is issued by the Marriage Registrar appointed by the Govt. of India. Marriage is solemnized between man and women before the court of law.
Section 27 of the special marriage act mentions the provision for divorce in the following way:-
(1) A divorce petition may be filed to the district court either by the husband or the wife on the following grounds.
- If either of the spouses had voluntary sexual intercourse with any person other than his or her spouse, after marriage; or
- the petitioner has deserted for a continuous period of not less than two years immediately preceding the presentation of the petition; or
- is undergoing imprisonment for seven years or more for an offence as defined in the Indian Penal Code;
- if either of the spouses has treated with cruelty, or has been incurable of unsound mind or has been suffering intermittently from mental disorder of such a kind and to the extent that the petitioner cannot reasonably be expected to live with the respondent.
- has been suffering from venereal disease; or
- has been suffering from leprosy, the disease not having been contacted by the petitioner; or
- has not been heard of being alive for seven years or more by the persons, naturally, have heard of the respondent if the respondent had been alive;
A marriage under this Act will be deemed void if:
- Either of the parties did not meet any of the obligations of the Act.
- The respondent was impotent at the solemnization of marriage.
- The marriage is consummated due to the willful refusal of the respondent to consummate it.
- If the consent of either of the parties was obtained through coercion or fraud.
- The respondent was pregnant by any person other than the petitioner.
In this context, a petitioner refers to either of the party who wishes to abate his/her marriage with the other person, who is known as the respondent.
The right of the petitioner to file divorcé is affected in the event of the following circumstances:
- The petitioner was ignorant of the declared facts.
- The proceedings were instituted within a year from the date of marriage.
- The petitioner has spent his/her marital life with the other with or without free consent.
The divorce by mutual consent is marked under two different section, i.e., Section 28 of the Special Marriage Act, 1954 and Section 13 B of the Hindu Marriage Act, 1955. In order to seek divorce by mutual consent, the parties must be living separately for at least one year and must resolve towards the end of the marriage. They must not be performing marital obligations – physical separation is not a criterion. The marriage must be beyond reconciliation, and presenting a petition for divorce together does not indicate amicability. Consent, however, must be free. If after six months the petition is not withdrawn, the parties may move the court within 18 months, after which the Court may grant the divorce.