Chapter VI§24–30
Nullity of Marriage and Divorce
The Act's matrimonial-relief catalogue. §24 makes a marriage null and void if any §4(a)–(d) condition was unmet, or if the respondent was impotent at marriage and at suit; §24(2) lets Chapter-III registrations be voided if §15(a)–(e) conditions were breached. §25 lists three voidable grounds — wilful refusal to consummate, pre-existing pregnancy by another, consent obtained by coercion or fraud — with strict time-limits. §26 secures the legitimacy of children of void and voidable marriages. §27 carries the full divorce regime (general grounds in §27(1); wife-only grounds in §27(1A); post-decree non-resumption in §27(2)). §27A lets the court grant judicial separation instead of divorce. §28 is divorce by mutual consent with the 6-to-18-month cooling window. §29 bars divorce in the first year (waivable for exceptional hardship/depravity). §30 says when a divorced person may remarry.
8 sections · MVP coverage
Void marriages
An SMA marriage is null and void if any §4(a)–(d) condition was unmet or if the respondent was impotent at marriage and at suit; Chapter-III registrations may be voided if §15(a)–(e) was breached — except where a §17 appeal has become final.
(1) Any marriage solemnized under this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if— (i) any of the conditions specified in clauses (a), (b), (c) and (d) of section 4 has not been fulfilled; or (ii) the respondent was impotent at the time of the marriage and at the time of the institution of the suit.
(2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under this Act within the meaning of section 18, but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in clauses (a) to (e) of section 15: Provided that no such declaration shall be made in any case where an appeal has been preferred under section 17 and the decision of the district court has become final.
Voidable marriages
Three voidable grounds — wilful refusal to consummate; respondent pregnant by another at marriage (proceedings within 1 year, petitioner ignorant of facts, no marital intercourse since discovery); consent obtained by coercion or fraud (proceedings within 1 year of cessation/discovery, no continued cohabitation after).
Any marriage solemnized under this Act shall be voidable and may be annulled by a decree of nullity if,— (i) the marriage has not been consummated owing to the wilful refusal of the respondent to consummate the marriage; or (ii) the respondent was at the time of the marriage pregnant by some person other than the petitioner; or (iii) the consent of either party to the marriage was obtained by coercion or fraud, as defined in the Indian Contract Act, 1872 (9 of 1872):
Provided that, in the case specified in clause (ii), the court shall not grant a decree unless it is satisfied,— (a) that the petitioner was at the time of the marriage ignorant of the facts alleged; (b) that proceedings were instituted within a year from the date of the marriage; and (c) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the grounds for a decree:
Provided further that in the case specified in clause (iii), the court shall not grant a decree if,— (a) proceedings have not been instituted within one year after the coercion had ceased or, as the case may be, the fraud had been discovered; or (b) the petitioner has with his or her free consent lived with the other party to the marriage as husband and wife after the coercion had ceased or, as the case may be, the fraud had been discovered.
Legitimacy of children of void and voidable marriages
Children of a §24-void or §25-voidable SMA marriage are deemed legitimate (whether born before or after the decree, and whether any decree is granted); but legitimacy reaches only the parents' property — not collateral relatives'.
(1) Notwithstanding that a marriage is null and void under section 24, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.
(2) Where a decree of nullity is granted in respect of a voidable marriage under section 25, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it has been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.
(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 25, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of not his being the legitimate child of his parents.
Divorce
Divorce is available on adultery, 2-year desertion, 7-year imprisonment, cruelty, incurable unsound mind/mental disorder, communicable venereal disease, leprosy not contracted from petitioner, or presumed death (§27(1)); plus wife-only grounds — rape/sodomy/bestiality and §125 CrPC maintenance order (§27(1A)); plus 1-year non-resumption after a §22 or §23 decree (§27(2)).
(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; or (b) has deserted the petitioner for a continuous period of not less than two 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 (45 of 1860); (d) has since the solemnization of the marriage treated the petitioner with cruelty; or (e) has been incurably of unsound mind, or 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.—In this clause,— (a) the expression "mental disorder" means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression "psychopathic disorder" means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or (f) has been suffering from venereal disease in a communicable form; or (g) has been suffering from leprosy, the disease not having been contacted 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. Explanation.—In this sub-section, the expression "desertion" means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.
(1A) 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; (ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898) (5 of 1898), 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 decree or order, cohabitation between the parties has not been resumed for one year or upwards.
(2) Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), 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; or (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 the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
Alternative relief in divorce proceedings
Except where divorce is sought on the presumption-of-death ground (§27(1)(h)), the court may, if just, grant judicial separation instead of divorce.
In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except insofar 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 for judicial separation.
Divorce by mutual consent
Both spouses, having lived separately 1+ year and agreed on dissolution, may jointly petition; the decree is granted on a second motion not before 6 and not later than 18 months — the cooling-off window.
(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 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 six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months 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.
Restriction on petitions for divorce during first one year after marriage
Divorce cannot be sought within the first year of marriage; the court may waive this on a showing of exceptional hardship or depravity, with safeguards against misrepresentation; the welfare of children and reconciliation chances are considered.
(1) No petition for divorce shall be presented to the district court unless at the date of the presentation of the petition one year has 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 one year has 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 one year 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 one year 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 one year 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 one year.
Remarriage of divorced persons
Once there is no surviving right of appeal — appeal window expired, no appeal filed, or appeal filed and dismissed — either divorced spouse may remarry.
Where a marriage has been dissolved by a decree of divorce, and either there is no right of appeal against the decree or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed either party to the marriage may marry again.