What are the Grounds for Divorce under the Special Marriage Act, 1954?
What are the Grounds for Divorce under the Special Marriage Act, 1954?

What are the Grounds for Divorce under the Special Marriage Act, 1954?

 

INTRODUCTION

Parties to a marriage generally do not have divorce in mind while contracting any form marriage recognizable under the law, as marriages are naturally contracted with the traditional cum conservative mindset that it will last forever or ultimately for the lifespan of either spouses or partners. The option to remarry after such termination is best left at the discretion of the surviving partner or spouse.

However, the legislators had contemplated instances that may arise which may eventually lead to  either or both parties to the marriage desirous to terminate the marriage which they had voluntarily contracted.

This stage where either or both parties desire to terminate the marital basis which exists between them is known as divorce or divorce proceedings. This is summarily, a process adopted for the dissolution of marriage.

Where at the end of the proceeding for dissolution of marriage a  decree of divorce is passed by a court of competent jurisdiction, the lifespan of the marriage which is subject to the proceedings vitiates and the reciprocal marital obligation between the spouses terminates.

Divorce, therefore, is the legal process commenced before a court of law or a body vested with the requisite authority to terminate a marriage.

The grounds for divorce with the Special Marriage Act of 1954 in view exist in three (3) folds:-

  • Grounds for dissolution of marriage which is available to both spouses,
  • Special ground(s) which relates only to the wife, and
  • Divorce by mutual consent of both spouses.

These grounds mentioned above shall be set out and extensively discussed below.

Grounds For Divorce Available To Both Parties

Bearing in mind the generality of the provisions of the Special Marriage Act, 1954 and the rules made pursuant to it:

  1. A petitioner (that is a spouse in a legally contracted marriage) can seek for a divorce by applying for a petition for the dissolution of such marriage to a court of law, in this case, a District Court on the following grounds as stipulated under Section 27 of the Special Marriage Act, 1954:
    Either of the spouses engaged voluntarily in sexual intercourse with another person other than his or her spouse.
    This ground also enjoys additional statutory flavor by virtue of Section 13(l)(i) of the Hindu Marriage Act.
    The basis for this ground may not be far fetched from the religious and moral inclination of all existing religious extraction within India and the world at large as clearly most religious groups upholds the sanctity of marriage, therefore, adultery is a positive and compelling ground to approach the court to preside over a proceeding for the dissolution of marriage.
  2. Generally, where a spouse is convicted under the India Penal Code and serving a prison term from seven years and above if the other spouse cannot tolerate same he or she is entitled to rely on this ground to bring the said marriage to an end.
    It is pertinent to note that there is a term of imprisonment of Seven (7) years or more for an offence provided for under the Indian Penal Code as it pertains to grounds for dissolution of marriage. But, for every rule, there is an exception and the exceptions, in this case, are where the cases of conviction are on rape, sodomy, and bestiality.
    These three (3) particularly counts as grounds for dissolution which is solely granted to the wife in a marriage.
  3. Had deserted the petitioner for a period exceeding two years prior to the presentation of the petition for dissolution of marriage?
    For the petitioner to succeed on this ground in seeking the dissolution of his or her marriage, the desertion which is being alleged against the Respondent must be direct, unequivocal and absolute.
    Therefore, a petitioner relying on this ground will not succeed if in evidence it is established that the Respondent had remained in communication at least through phone calls, text messages etc. The reason being that desertion in the eyes of the law, is an outright withdrawal from a state of affairs. See also the definition proffered by Halsbury’s Laws of India: Volume 26 (New Delhi: Butterworth’s, 2007) at 267
  4. Has the Respondent dealt cruelly with the petitioner?
    This ground exist when there is a physical or mental form of torture or abuse which has left the petitioner to believe that he or she cannot continue to live with the respondent.
    Cruelty as a ground for divorce also enjoys statutory flavor beyond India as evidence in Section 3 of the Divorce Act of Canada, 1968. The Act offers a liberal approach to the interpretation of statutes in Canada as it is immaterial that the act of cruelty complained of posed any danger to the life of the petitioner.
  5. Has the Respondent suffered from infirmity or mental disorder?
    This ground for dissolution must address a key issue which is that, the Respondent is suffering from an infirmity of the mind or such mental disorder to the extent that the petitioner cannot be reasonably expected to continue living with the Respondent.
    In T. Jagedeeswari vs Anand @ Mohankumar, the court held inter alia held while considering the Hindu Marriage Act, 1955 which also admitted infirmity of the mind as a ground for divorce; the infirmity of the mind complained of by the petitioner must be of such extent that the petitioner will not be reasonably expected to continue living with the Respondent.
  6. Does the Respondent have a venereal disease?
    The respondent must be suffering or under a communicable venereal disease for such grounds to hold water in court.
    For instance, where a party to the suit is suffering from a communicable venereal disease like Leprosy, the Petitioner can raise it as a ground for dissolution of marriage if the Leprosy was contracted during the marriage or before the marriage without the Petitioner being aware. If it can be proved that the Petitioner was patient zero (0), then this ground will not be allowed in court.
  7. What happens when a spouse has disappeared?
    The Petitioner can file for divorce when the respondent has not been heard from for seven (7) years and above. Therefore, his/her status of being alive is highly doubted.
    This ground is clearly drawn from the English/Common law evidentially presumption that if someone is not heard of/from by persons who he or she naturally and reasonably ought to be in communication with (in this case his spouse, friends, and immediate family) for a period exceeding seven (7) years; and in the absence any cogent and compelling evidence to the contrary, such spouse is presumed dead. This will entitle the surviving spouse a reason to file for divorce.
  8. The respondent has not resumed cohabitation for one (1) year or more after the declaration of a court for the decree of judicial separation against the Respondent.
  9. Over a period of at least one (1) year, the Respondent failed to comply with the declaration of a court of the court for the decree of restitution of conjugal right.
    Where the Respondent is fully aware or has knowledge of the pending and subsisting order of the court for the restitution of conjugal rights of both parties in a marriage but fails to comply with the said order(s), the Petitioner is at liberty to approach the District Court on this ground for the dissolution of such marriage.

Grounds for Divorce available to Wife only

Convicted for Rape, Sodomy, or Beastality

Where the husband is found guilty and convicted of rape, sodomy or bestiality. For this ground to be relied upon in order to seek the dissolution of a marriage, the erring spouse, in this case, the husband must have been caught, investigated, tried and convicted of any of the offences.

The victim of the alleged crime must not be his wife to form the basis of placing reliance on this ground. Likewise, the evidence of such allegation must be corroborated as required by law for most sexual offences.

Outright Disobedience of an Order of Maintenance

After an order for maintenance was granted against the husband and he failed to resume cohabitation for at least one (1) year and above, then the court would have no option but to grant the petition of divorce filed by the wife.

This ground requires the presence of two (2) facts:

  • That the wife is living apart from the husband, and
  • Upon the grant of the order for maintenance to the knowledge of the husband, he has failed to resume cohabitation with the wife.

Divorce by  the Mutual Consent of both Parties to the Marriage

The Special Marriage Act, in addition to making provisions for the grounds upon with either parties, can approach the District Court for dissolution of marriage, also made provisions for the spouses to mutually consent to the termination of the marriage between them.

This instance may arise where the husband and wife had lived separately for a period exceeding one (1) year, and are not able to live together. In such instance, they can approach the court by mutual consent for the dissolution of their marriage.

This ground for dissolution of marriage must be be relied on subject to the overriding dictates of the Special Marriage Act, 1954 and the rules made pursuant to the Act.

This ground is found on the basis that the law cannot foist unwilling partners on each other especially when both have found each other to be incompatible and have agreed mutually to go their separate ways.

Conclusion

The Special Marriage Act of 1954 is an answer to the latent lapses in the previous laws governing marriage and matrimonial causes as it pertains to mutual consent.

The further amendment of 1976 law created an avenue to incorporate the Hindu Marriage Act of 1955 and the Special Marriage Act of 1954 which stipulates that the respective provisions on the grounds for dissolution of marriage are impari material.

It is worthy to submit that the aforementioned grounds which may be relied upon in approaching a court for dissolution of marriage may be relied upon independently. In other words, the entire grounds mentioned and discussed above under any of the headings must be present for a petitioner to seek a divorce.

 

 

 

 

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