Code: Section 27 of the Special Marriage Act, 1954
(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); or
(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—
(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.
(f) has been suffering from venereal disease in a communicable form; 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, or in a proceeding under section 125 of the Code of Criminal Procedure, 1973, a decree or order 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, may present a petition for divorce to the district court on the ground—
(i) that there has been no resumption of cohabitation for a period of one year or more after a decree for judicial separation; or
(ii) that there has been no restitution of conjugal rights for a period of one year or more after the passing of a decree for restitution of conjugal rights.
Explanation of Section 27 – Grounds for Divorce under SMA
Section 27 of the Special Marriage Act, 1954 outlines the legal grounds on which either spouse can seek a divorce through a district court. These grounds apply to marriages solemnized under this Act and provide gender-neutral as well as gender-specific reasons for divorce.
Key Divorce Grounds (Available to Both Spouses):
- Adultery: Voluntary sexual intercourse with a person other than the spouse.
- Desertion: Leaving the spouse for at least two continuous years without consent or valid reason.
- Imprisonment: Respondent is sentenced to seven years or more in jail.
- Cruelty: Physical or mental cruelty inflicted after marriage.
- Unsound Mind or Mental Disorder: If the respondent suffers from a mental condition that makes cohabitation unreasonable.
- Communicable Venereal Disease: Suffering from a sexually transmitted disease.
- Presumption of Death: If the respondent has not been heard from for over seven years.
Additional Grounds Available to the Wife (Sub-section 1A):
- Husband guilty of rape, sodomy, or bestiality after marriage.
- A court has ordered maintenance in favor of the wife and no cohabitation has occurred for one year after such order.
Divorce after Judicial Separation or Restitution of Conjugal Rights (Sub-section 2):
- If there is no cohabitation for at least one year after a decree for judicial separation.
- If there has been no resumption of conjugal rights for at least one year after a decree ordering restitution.
Illustration
Example 1: Divorce for Adultery
A wife finds out that her husband has had an extramarital affair. She can file for divorce under Section 27(1)(a).
Example 2: Divorce for Mental Illness
If a husband is diagnosed with schizophrenia and exhibits violent behavior, and medical treatment has failed, the wife may seek divorce under Section 27(1)(e).
Example 3: Divorce by Wife After Rape Conviction
A husband is convicted of raping a third person. The wife can seek divorce under Section 27(1A)(i).
Example 4: No Cohabitation After Maintenance Order
A wife is awarded maintenance by court and the couple has not resumed living together for over a year. She can seek divorce under Section 27(1A)(ii).
Common Questions and Answers on Section 27 SMA
1. Can both husband and wife file for divorce under Section 27?
Yes. Sub-section (1) provides common grounds for both spouses. Sub-section (1A) offers additional grounds for wives only.
2. Is cruelty limited to physical violence?
No. Cruelty includes both physical abuse and mental harassment, including emotional neglect, abuse, or humiliation.
3. What is the significance of mental disorder in divorce cases?
If a mental disorder is severe and prevents the petitioner from reasonably cohabiting with the respondent, it can be a valid ground for divorce.
4. What is “desertion” legally?
Desertion means abandoning the petitioner without consent or just cause and includes deliberate neglect.
5. Is there a time requirement for judicial separation or restitution before divorce can be filed?
Yes. The couple must wait at least one year after a decree of judicial separation or restitution of conjugal rights before filing for divorce under Section 27(2).
Conclusion
Section 27 of the Special Marriage Act empowers individuals to end their marriages legally when certain serious conditions are met. It ensures fairness, protection, and dignity for both spouses while recognizing the emotional and social implications of continuing a troubled marriage.
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