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May 17, 2024

Grounds for Divorce under the Special Marriage Act, 1954

The Special Marriage Act, 1954 (SMA) lays out specific grounds on which either spouse can petition for divorce. Here’s a breakdown with relevant case laws:

Grounds for Divorce:

  • Adultery (Section 27(1)(a))
    • Case Law: Y.D. Chavan vs. Mrs. Sushila Chavan (AIR 2010 SC 1993): The Supreme Court clarified that a one-night stand can constitute adultery if it’s proven to be a deliberate act violating the sanctity of marriage.
  • Cruelty (treated with cruelty – Section 27(1)(a))
    • Case Law: Savita vs. Rajesh (AIR 2010 SC 1935): This case broadened the definition of cruelty to include mental cruelty. Mental harassment can be a ground for divorce even if there’s no physical abuse.
  • Desertion (for a continuous period of two years immediately preceding the presentation of the petition – Section 27(1)(a))
    • Case Law: Payal vs. Kishan Chand (AIR 2011 SC 2822): Mere separation isn’t desertion. The spouse who left must have the intention of abandoning the marriage.
  • Imprisonment (for seven years or more for an offence punishable by imprisonment under the Indian Penal Code – Section 27(1)(a))
    • This provision is straightforward.
  • Venereal Disease (in a communicable form – Section 27(1)(a))
    • Case Law: Narayan Sadashiv Rao vs. Sunita Narayan Sadashiv Rao (AIR 1985 Bom 379): Courts have emphasized the importance of disclosing pre-existing sexually transmitted diseases before marriage.
  • Living Separately (for a period of one year or upwards after passing a decree of judicial separation – Section 28)
    • This applies when a court has already ordered separate living due to other grounds.
  • Mutual Consent (with no possibility of cohabitation – Section 28)
    • This is the most common ground today.

Challenges in Implementation:

  • Lengthy Process: Divorce proceedings can be lengthy and expensive, deterring some couples from seeking legal separation.
  • Social Stigma: Societal stigma attached to divorce, especially for women, can discourage them from filing for divorce even in difficult situations.
  • Economic Dependence: Financial dependence on the husband can make it difficult for some wives to initiate divorce proceedings.
  • Misinterpretation of Cruelty: The subjective nature of cruelty can lead to misuse or difficulty in proving mental harassment.
  • Unequal Access to Legal Aid: Unequal access to legal representation can disadvantage some parties during the process.

Conclusion:

The Special Marriage Act provides clear grounds for divorce, and judicial interpretations have broadened some definitions. However, social and economic challenges persist. Streamlining procedures, promoting awareness, and ensuring equal access to legal aid are crucial steps towards smoother implementation of these provisions.

 


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