Code: Section 28 of the Special Marriage Act, 1954
28. Divorce by mutual consent.
(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petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the district court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has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.
Explanation of Section 28 – Divorce by Mutual Consent
Section 28 of the Special Marriage Act allows for divorce by mutual consent. It provides a legal framework for couples who have decided to part ways amicably, without any allegations of wrongdoing. Here’s a breakdown of the provisions:
Key Features of Section 28:
- Mutual Consent: Both parties must agree to the divorce and present a petition to the court.
- Living Separately: The couple must have lived separately for at least one year before filing for divorce.
- Procedure for Divorce:
- After filing, a waiting period of six months must elapse before the court can pass the decree.
- The total time frame for a divorce petition is 18 months from the date of filing.
- During this time, the petition cannot be withdrawn.
- Court’s Role: The district court, after hearing both parties and conducting necessary inquiries, will confirm the facts and pass a decree of divorce.
Illustration
Example 1: Divorce by Mutual Consent
A couple has been living separately for over a year due to irreconcilable differences. Both parties agree to dissolve the marriage and file a mutual consent divorce petition. After six months and within eighteen months, the court grants a decree of divorce after confirming the facts presented in the petition.
Example 2: Delayed Divorce Filing
A couple has been separated for 14 months and mutually agrees to file for divorce. After six months of filing, they attend a hearing where the court reviews the case. Within the 18-month period, the court grants the decree of divorce, formally ending their marriage.
Common Questions and Answers on Section 28
1. What is the process for filing for divorce by mutual consent under Section 28?
Both spouses must jointly file a petition stating that they have been living separately for at least one year, are unable to live together, and have mutually agreed to dissolve the marriage.
2. How long must the couple live separately before filing for divorce by mutual consent?
The couple must live separately for a minimum of one year before presenting a petition for mutual consent divorce.
3. Is there a waiting period before the court grants the divorce decree?
Yes, there is a six-month waiting period after the petition is presented, but the total period for divorce proceedings is capped at 18 months from the date the petition is filed.
4. Can the petition for divorce be withdrawn?
Yes, the petition can be withdrawn at any time before the court issues the final divorce decree. However, after the hearing, if the court is satisfied, it will pass a decree of dissolution.
5. Can the divorce be granted before the 18-month period?
No, the court cannot grant the divorce before six months have passed since the petition was filed. The full procedure typically lasts up to 18 months from the date of filing.
Conclusion
Section 28 of the Special Marriage Act provides a clear and amicable route for couples who wish to dissolve their marriage by mutual consent. It encourages reconciliation and ensures that both parties agree to the terms of the divorce before it is finalized.
If you’re considering divorce by mutual consent, it’s essential to follow the legal process and ensure all conditions are met. If you need further legal advice or assistance, consult an experienced family lawyer.
For more information on divorce under the Special Marriage Act, visit ApniLaw.
