Divorce
Narayan Saraf
(Querist) 18 October 2011
This query is : Resolved
we got married under special marriage act on 15.03.2011 and ceremony of marraige as per hindu law took place on 06.05.2011, now on 03.09.2011 my wife went to her mothers house and now asking divorce. if we go through mutual consent than by what earliest time and method too we can get decree of divorce.
by the way i didnt want to give her divorce but as mistake is done by my part my family is afraid of sec 498 & all....& so..they want to settle method mutualy....
Khaleel Ahmed Mohammed
(Expert) 18 October 2011
Yes both can file a divorce petition before family court with mutual consent. You are advised to take services of your local lawyer.
jatin sharma
(Expert) 18 October 2011
you can file a divorce petition under sec 28 of special marriage Act but both of you have to separate living for one years period before file the petition.
prabhakar singh
(Expert) 18 October 2011
What is striking in your query to me is that
YOU BOTH [to reproduce your own words]"got married under special marriage act on 15.03.2011"
WHERE AFTER YOU SAY"and ceremony of marraige as per hindu law took place on 06.05.2011,"
LET IT BE AS IT IS IF YOUR MARRIAGE WAS REGISTERED UNDER SPECIAL MARRIAGE ACT ON 15/03/2011 THEN HINDU CEREMONIALS PERFORMED ON 06/05/2011 ARE OF NO LEGAL USE.
SINCE FOR ALL LEGAL PURPOSES YOUR MARRIAGE WOULD BE DEEMED TO HAVE BEEN PERFORMED UNDER SPECIAL MARRIAGE ACT 1954.,WHERE UNDER RELIEF OF DIVORCE WOULD BE AVAILABLE
ONLY IN TERMS OF SECTION 29 WHICH AS YOUR EYE OPENER IS BEING REPRODUCED BELOW:
The Special Marriage Act, 1954
29. Restriction on petitions for divorce during first three years after marriage. -
(1) No petition for divorce shall be presented to the district court unless at the date of the presentation of the petition three years have passed since the date of entering the certificate of marriage in the Marriage Certificate Book.
Provided that the district court may, upon application being made to it, allow a petition to be presented before three years have passed on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the district court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case the district court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the expiry of three years from the date of the marriage or may dismiss the petition, without prejudice to any petition, which may be brought after the expiration of the said three years upon the same, or substantially the same, facts as those proved in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the expiration of three years from the date of the marriage, the district court shall have regard to the interests of any children of the marriage, and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the said three years.
a CONTESTED PETITION UNDER THIS ACT LIES UNDER SECTION 27 AND A PETITION BY MUTUAL CONSENT LIES UNDER SECTION 28 WHICH ARE ALSO SUCCESSIVELY REPRODUCED BELOW.
prabhakar singh
(Expert) 18 October 2011
The Special Marriage Act, 1954
27. Divorce. -
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 since the solemnization of the marriage committed adultery; or
(b) has deserted the petitioner without cause for a period of at least three years immediately preceding the presentation of the petition; or
(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (Act XLV of 1860):
Provided that divorce shall not be granted on this ground, unless the respondent has prior to the presentation of the petition undergone at least three years' imprisonment out of the said period of seven years; or
(d) has since the solemnization of the marriage treated the petitioner with cruelty; or
(e) has been incurably of unsound mind for a continuous period of not less than three years immediately proceeding the presentation of the petition; or
(f) has for a period of not less than three years immediately preceding the presentation of the petition been suffering from venereal disease in a communicable form, the disease not having been contracted from the petitioner; or
(g) has for a period of not less than three years immediately preceding the presentation of the petition been suffering from leprosy, the disease not having been contracted from the petitioner; or
(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; or
(i) has not resumed cohabitation for a period of two years or upwards after the passing of a decree for judicial separation against the respondent; or
(j) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree against the respondent. and by the wife on the ground that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.
prabhakar singh
(Expert) 18 October 2011
The Special Marriage Act, 1954
28. Divorce by mutual consent. -
(1) Subject to the provisions of this Act and to the rules made there under, a petition for divorce may be presented to the district court 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 the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than one year after the date of the presentation of the petition referred to in sub-section (1) and not later than two years after the said date, if the petition is not withdrawn in the meantime, the district court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.
Narayan Saraf
(Querist) 18 October 2011
sir,
On the motion of both the parties made not earlier than one year after the date of the presentation of the petition referred to in sub-section (1) and not later than two years after the said date, if the petition is not withdrawn in the meantime, the district court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.
what is significance of this sub section....
Devajyoti Barman
(Expert) 18 October 2011
You can apply for divorce either under SMA or HMA but not under both Acts as per its respective dates.
Since one year has not elapsed you have to wait for such time computing from the date of the respective marriages.
Shonee Kapoor
(Expert) 18 October 2011
you can apply for divorce under SPA only.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
prabhakar singh
(Expert) 19 October 2011
An important CORRIGENDUM in text of sections
cited above is as follows which has not been
updated on vakil no.1 site from where i
extracted these texts.
In section 28(2) time one year has been reduced to 6 months and time 2year has been reduced to 18 months by amendment.A new section 28A has also been added.
