Divorce under the special marriage act

Marriage is said to be an association of two individuals promising to spend a lifetime together. As per Hindu dharma, marriage is a connection built between two people and is meant to go on till the next seven lives. Marriage is one of the most beautiful feelings that one can experience in their life. But sometimes, the marriage works differently than expected.

Unhappy marriages adversely affect society, the couple, and the child (if any). Thus, the couples may divorce instead of staying in a broken and unhappy marriage. It is a request for the chances given to a couple who aren't happy with their marriage according to the Special Marriage Act. In this article, we will look deeply into the things involved while having a divorce under the Special marriage act. Ensure reading till the end to know the bonus point.
 
Divorce in India is studied under different religions as per their belief. The laws develop the bases, ways, and procedures to have a divorce acceptable in the eye of the law and for everyone. In the past few years, the divorce rate has been rising, which has pros and cons. Pros, as people become more active and understand their rights, they now know what is acceptable and what is not. Now people know how to fight for their rights. And Con includes losing emotions, patience, care, and understanding for each other more of feminism. Marriage is said to be holy and sacred, but sometimes, people end it out of ego. However, divorce is difficult, as one must complete all the requirements and legal processes.
 
For having a divorce, one must verify their point in the court attended by a valid reason. There are only a few legal reasons for having a divorce. Other than these legal bases, the court can also consider some other valid reasons true. In some instances, male spouses are found stressed as they feel that the court will only listen to the story and reasons of a female mate. Yet, it is a myth. In this article, we will discuss divorce under the special marriage act.

Special Marriage Act, 1954: Introduction

The concept of Special Marriage act was formed in 1954. The Act was a rule for managing marriages that could not be formalized due to holy rituals. The Act involves all Indian citizens living in India or outside India. Despite the State of J&K. Although someone is domiciled in other states, living in J&K would be suitable for these provisions.

It is a law that sets a certain type of marriage by registration. Marriage is pure, as there is no need to change or reject one's religion. Unlike traditional marriage arranged by families, such as matching the society and caste of two families, the Act desires to legalize inter-cast and inter-religion marriages. 

The Act's registration certificate has been regarded as universal proof of marriage. As the Prelude says, the Act allows for a unique form of marriage in special events, registration of marriage, and divorce.

What are things that make a marriage valid under the special marriage act?

1. The couples must have attained the minimum age limit to marry, that is, 21 for the groom and 18 for the bride.
2. None of the spouses should be married having a living mate.
3. The couples must be apt to give valid consent. That is, they must not suffer from severe disease or unsound mind.
4. The couples must not be in the denied degrees of relationship.

The points above clearly show the lack of constraint on religion and caste civilities. Someone who wants to get married can get married under this Act after satisfying all the conditions. 

Till now we have discussed what is Special Marriage Act and what are conditions one must satisfy before getting marriage under this act. Now, let’s look into the divorce that happens as per this act.

Divorce as per Special Marriage act:

Anyone can file for divorce in the District Court as per the Special Marriage Act, 1954, only if their marriage has been formalized under the Act after meeting the conditions we discussed. The act gives some cases in which the spouses can end their marital relationship by having a divorce. Such reasons can be discussed as:

Reasons for Divorce available for both spouses:

Adultery:

A single act of extra-marital affair or sexual relationship would include the base adultery. It is to be stated that a mere try to do such an act doesn’t include adultery. Though the Act equips adultery as a base for Divorce, it is backed by traditional religious principles since saving such an act often ruins the marital relationship.

Detention:

If a mate is sentenced to jail for seven years or more for a crime as per the IPC, the other mate can file a divorce case for that reason. But a divorce should not be given if a case is filed after three years the seven-year or more detention.

Cruelty:

Cruelty is an act or behavior of a person that causes problems to one's life, harms one's health and/or reputation, or induces mental torture. The mate's conduct and behavior are considered where such behavior must be so grave that no valid person can take such conduct.

Learn More: Cruelty As A Ground for Divorce in India

Desertion:

Desertion is a complete denial of marital responsibilities. A divorce case can be filed based on the intended parting of a mate from the married relationship without any valid reason for two years. Yet, such leave must not be agreed to by the spouse who was left. To form the basis of desertion, there must be an intent to desert with actual physical or mental desertion.

Know more: Desertion As A Ground For Divorce

Insanity:

If a mate is suffering from any mental disorder, it is difficult for anyone to live with them. If there is a situation in one's marital life, the other mate has the right to file a divorce case by invoking such a reason. Yet, a marriage must be treated as null if a person had been suffering from a mental disorder before marriage solemnization without knowing their mate.

Severe Disease:

These types of diseases are more generally directed to as STIs. A party suffering from a venereal disease in a virulent and contagious form is a reasonable basis for filing a divorce case. Yet, such a party must not have contracted the disease from their mate. The Act does not limit the disease's duration, nor does it say curability or lack of it.

Leprosy:

A divorce case can be filed if the mate suffers from leprosy, believing it has not to be acquired from the other mate.

Thought of death:

A divorce can also be filed on the ground that the mate is not seen or heard from alive for seven years or more.

No resumption of living together after an order of legal separation

The spouse has not continued cohabitation for at least a year after giving an order of legal separation. The law planned to give some time and space to the couple so they can have a chance of reconnecting, and check if they can reconcile. If the mates don't change their minds, the legislature feels there is no reason to keep the right of living together known to the couple for any other period. Each case must be set based on its odd facts and events.

As per the special act, reasons for divorce are given only to females.

The wife can seek divorce on any of the following grounds: –

1. If the husband has executed a crime such as:

•  Rape
•  Sodomy
•  Brutality

A divorce must be given only when the husband is proven to do these things before a court of law, and he's proven for engaging in such a violation.

2. If cohabitation has not continued even after one year of giving the divorce of care and maintenance in the woman's favor.

Divorce as per Special Marriage Act (Mutual consent)
Divorce by Mutual Agreement is said to be the easiest and simplest kind of divorce. In which both the spouses state a joint agreement to file for divorce, the reasons for Mutual consent divorce include:
1. The couple must be living apart for at least one year.
2. Both of them do not want to live together again.
3. Couples have decided as a joint agreement that their marriage should end.
Six months after filing the case but not later than eighteen months, both spouses must move to a motion in the Court for having a law of divorce. Prior to giving a divorce, the Court should assess elements such as:

1. The case of divorce hasn't been taken back.
2. The wedding relationship is solemnized per the Act's conditions.
3. That the allegations stated in the divorce case are fair.
4. The consent of either party to the divorce has not been obtained by fraud, pressure, or undue force.
5. That the plea is filed within the set time limit.

Once the Court is content with these conditions, they pass a divorce case. It is critical to note that the petition can be filed only after one year of marriage allegations, starting from the date of marriage.

Void and Voidable marriage as on the Special Marriage Act, 1954 

Here are the premises that determine whether the marriage is void or voidable as per the legal guidelines provided under the special marriage act, of 1954:

A. Void Marriage

A void married isn't considered to be married from the beginning. But it is still known as marriage because the person has completed the marriage ceremony and all the rituals. Since they are not considered married, they can not term as a husband, wife, or a couple experiencing marriage rituals. No order from the court is needed in void marriages. Even if the court gives an order, it only says the wedding is null and void. 

It is not the court's decision to make it void/null. It is a current fact that the wedding is void, and the court is just creating a real lawful statement. 

Reasons for Void Marriage as per the Act:

Listed below are the reasons for the nullity or void marriage:

The conditions of Clauses a-d of section 4 of the Act have yet to be fulfilled. Such conditions include: 

1. None of the spouses must be married having a living spouse. In the case of a second marriage with a living spouse, the first marriage will be considered, and the second will be void.
2. None of the mates is unable to give proper clearance. 
3. At the time of marriage, the groom should be 21 years old, and the bride must be 18 years old.
4. Both of them are not within the degrees of restricted connection.
5. If the defendant was weak at the time of marriage and the structure of the case. The prime duty in the case of impotence is on the female spouse to prove the respondent's spouse's impotence.

Voidable Marriage:

Till the time marriage is not avoided, it is a term to be valid. One among the spouse can ask it to make it avoided. If one of the spouses refuses to order to end the marriage, the marital relationship will stay valid. 

If any mates die before the dissolution, no one can challenge the will said to be valid till the end. All the lawful senses of a proper wedding flow as long as it is not evaded. The reason for voidable marriages is termed in Section 25 of the Special Marriage Act.

Conclusion:

The Marriage act of 1954 is the answer to the inactive fault in the prior laws ruling marriage and divorce.

Another revision 1976 law created an avenue incorporating the Special Marriage Act 1954, which stipulates the respective provision on the grounds for having a divorce.

It is worthy of submitting the reasons on which the divorce depends. Approaching a divorce may be relied upon independently. We hope that you understand the concept and that this article clarifies the concept. If you want advice on the same, email us at [email protected]. Or call us at +919284293610.

FAQ:

As per the Special Marriage Act, how many notice period is involved?

According to Section 16 of the Act, while receiving the application, the attorney must give a public notice letting 30 days to present a protest to the marriage about the conditions noted according to Section 15 of the Act.

How can one take divorce as per the Special Marriage Act?

The one seeking divorce must state and prove the valid reason, such as:

• If the other one is unsound mind or suffering from any severe disease.
• If the spouse is underage.
• If the spouse is having an extramarital affair.

What is referred to by section 24 of the Act?

Section 24 sub-section 1 of the Act describes a divorce proceeding for getting an order of nullity of the relationship. It doesn't have an express rule that any one couple can file cases.

Can a person take one side of divorce under this law?

Suppose there are valid reasons and proof open, the court can give divorce on those reasons it is said to be one side else. Other than that, there is no term for 'One-side divorce.'

Should the divorce be laid if either of the partners is not heard from for a long time?

A partner can file for divorce if their spouse hasn’t heard from or seen for a time that is more than seven years.

After how many times, Can A divorced person remarry?

If divorce occurs as mutual consent, there is no specified time for remarrying. A person can marry anytime after having a divorce. But in the case of a contested divorce, 90 days is given to both of them to apply. If there nothing is applied, then the one can remarry.

What Happens When Force, Fraud, or Undue Influence obtain Consent to Divorce?

The law is apparent: when spouses file for divorce by mutual agreement, they must be free from any power, fake, or undue force; If not, the court cannot make an order or pass for divorce. If any spouse feels that divorce has been given when permission was not obtained legally, a lure can be made.

What is the easiest way to have a divorce in India?

The quickest and easiest way to get a divorce is to have a Mutual agreement when both spouses are ready to have a divorce on friendly grounds.

About The Author

Adv. Prerana Dey is a dedicated lawyer with a robust legal practice spanning various domains, including civil, criminal, consumer, and matrimonial law. She completed her LLB and began practicing law in 2022. Over the course of her career, Prerana has gained substantial experience and a reputation for her commitment to justice and her clients.