Grounds of divorce under Special Marriage Act, 1954: An Outlook


As such interfaith marriages were unavoidable, India is renowned for being a nation of cultural extravagance and religious diversity that forms a socially diverse and multi-ethnic democracy. The proportion of people tying knots outside their own communities has been steadily increasing as a result of modernity, westernisation, liberal education, and intellectual independence. People in our country are becoming more eager to locate a mate of their choosing rather than caving in to the pressure from their families to wed inside the walls of their own caste as was customarily done.

However, there are still many stigmas attached to inter-caste marriages. The Particular Marriage Act, 1954 was passed to provide for a special type of unrestricted inter-faith marriages that could not be solemnised under the various religion customs in order to dispel such misconceptions. The Special Marriage Act of 1954 is applicable to all Hindus, Muslims, Sikhs, Christians, Jews, and Buddhists residing in India as well as Indian nationals living abroad. Therefore, the Act permits marriage between two people regardless of the caste or religion they practise, and without the requirement that they renounce their religion, as required by the earlier legislation.

Inter-caste and inter-religious marriages are covered by the Special Marriage Act. A marriage between members of two different castes is referred to as an inter-caste marriage. This Act covers marriages between Hindus, Muslims, Christians, Sikhs, Jains, and Buddhists. Except for Jammu & Kashmir, all of the Indian states are covered by this law. This Act is applicable to both Indian nationals living abroad and Indian residents of various castes and religions.

None of them are necessary under the Special Marriage Act since Indians believe in marriages with suitable traditions, customs, and ceremonies that entail pomp and circumstance and lavish festivities. The consent of both parties to the marriage is the primary criterion under this Act for a legitimate marriage. Caste, religion, race, and other factors cannot prevent this marriage from taking place if both parties are eager to get married to one another. For a marriage to be recognised under this Act, the parties must register a notice of their intention to wed with the district’s marriage registrar in a district where at least one of the parties to the marriage has resided for at least 30 days prior to the day on which the notice is filed. The marriage is then referred to as being solemnised when 30 days have passed since the date that such notice was published. However, the registrar has the authority to annul the marriage if any member of the parties’ family objects to the union and he determines that the objection is reasonable. The couple must also consent to the marriage in front of the marriage officiant and three witnesses for it to be legal.

The standards that must be met for this unique type of marriage are not all that different from those for other typical caste-based marriages. The prerequisites for marriage under this Act are as follows:

  • At the time of the wedding, the bride must be at least 18 years old, and the groom must be at least 21. This is the legal minimum age for a boy or girl to marry.
  • Both parties must be monogamous at the time of their marriage, which means they must both be single and have no active spouses at the moment.
  • The parties must be mentally fit, or sane, at the moment of marriage, in order for them to be able to make their own decisions.
  • They should not have any relationships that are forbidden or that would otherwise be grounds for ending their marriage. They should not be connected to one another by blood.


Marriage is terminated via divorce; the participants revert to single status and are then free to find new partners. The Matrimonial Causes Act, 1857, an English marriage statute, had a significant impact on the divorce and separation rules in India. According to the Act, the wife must demonstrate bigamy, incest, abuse, two years of desertion, and other factors in addition to adultery before the husband can claim separation on this basis. This fit the Victorian era perfectly. The Matrimonial Causes Act of 1923, which equalised both spouses, brought about changes, and three further reasons were added to the Act in 1937. The Indian Matrimonial Laws have created laws that closely resemble the British model by closely following these changes. Section 27 of the Act specifies the reasons for divorce. Eight of the following faults are recognised as grounds for divorce under the Special Marriage Act of 1954 as revised by the Marriage Laws (Amendment) Act of 1976. These are what they are:

  1. Adultery
  2. Desertion
  3. Respondent undergoing a sentence of imprisonment for seven years or more for n offence under IPC, 1860
  4. Cruelty
  5. Venereal diseases in a communicable form
  6. Leprosy
  7. Incurable insanity or continuous or intermittent mental disorder, and
  8. Presumption of death

For the wife alone, two more specific grounds have been provided[xix]. The husband has committed rape, sodomy, or bestiality since the marriage was solemnised, and cohabitation has not resumed for at least a year following the issuance of a maintenance order under section 125 of the Criminal Procedure Code.


Since the marriage was solemnised, the case’s respondent has been having extramarital affairs. According to Dawn Henderson v. D Henderson, adultery is the matrimonial offence in which a married person engages in consensual sexual activity with a person of the opposite sex who is not the wife while the marriage is still in existence (SB). According to clause (1) of section 27 of the Act’s provision (a), one act of adultery may be sufficient grounds for divorce. It is not essential to establish that the respondent was “living in adultery,” as required by Section 13 of the Hindu Marriage Act of 1955. The court must be convinced that adultery has been committed in the matter at hand, without a shadow of a doubt. But adultery can only very seldom be proven through the witness’s direct testimony. As a result, the evidence must typically be circumstantial in character and dependent upon the likelihood of the circumstance. However, just like in the case of Jyotish Chandra Guha v. Meera Guha, the mere production of love letters written by a person to a wife will not establish adultery in the absence of reciprocity on her part. ¬†The court noted in Subramma v. Saraswati that “the inference that a court of law can draw must be that two were committing an act of adultery together if an unrelated person is found along with a young wife, after mid-night in her bedroom in actual physical juxtaposition, unless there is some explanation forthcoming for that which is compatible with an innocent interpretation.”

In India during the middle of the 20th century, it was believed that it was the petitioner’s responsibility to establish beyond a reasonable doubt that the respondent had committed adultery. But in the case of adultery, such a duty as onerous as the one imposed on the petitioner in criminal cases was later deemed unnecessary. The current stance is that it need not be proven beyond all reasonable doubt; it can be demonstrated by a preponderance of the evidence. It has also been acknowledged that the sheer existence of circumstances (which unavoidably lead to the conclusion of adultery) will enough in cases of adultery because it is impossible to get direct evidence in such cases. However, this does not include impromptu comments that might be verified. If there is no legal obstacle to relief, a decree of dissolution of marriage should be issued once the adultery offence has been proven.


Before the petition was filed, the respondent had to have abandoned the petitioner without justification for at least two years. In its simplest form, desertion refers to the deliberate, ongoing abandonment of one spouse by the other, without the other’s agreement or justifiable justification. It is an outright rejection of the responsibilities of marriage. Desertion is a state of things that are essential for a happy marriage, not a withdrawal from a specific location. It must have been committed for at least two years prior to filing the petition because it is a continuous offence. Factum, which is the desire to desert or physical separation, and animus are its basic components. All of these components must be present throughout the statutory time. When one spouse is forced to leave the marital residence due to the actions of the other, this is when the doctrine of constructive separation applies. The desertion is the fault of the driving spouse. There is no discernible difference between a man who desires to end cohabitation and leaves his wife and a man who, through his behaviour, forces his wife to leave him with the same aim.

It is important to remember that any of the aforementioned forms of desertion will and ought to include the following components:

  • the fact of separation or the end of cohabitation
  • the desire to flee, or animus deserdendi
  • refusal on the part of the abandoned spouse.
  • absence of a justifiable reason
  • 3-year statutory period

Due of the husband’s insufficient income, the wife in Geeta Jagdish Mangtani v. Jagdish Mangtani left him after only seven months of marriage. She gave birth to a child and started residing with her parents. She kept on her teaching career without making any attempts to reunite with her husband. She had prior knowledge of the husband’s financial situation. Her desertion has been established in light of the facts. In Sunil Kumar v. Usha, the wife left the matrimonial house because of the unpleasant atmosphere there, and the reign of fear that reigned there forced her out. Desertion was found to not be her fault.

The court ruled that an intention to abandon must be proven in Gopal v. Mithilesh. A person may go for work or school and wind up stranded for two years, but this won’t constitute desertion because there was always the intention and further anticipation that they would return. A person, however, becomes a deserter the instant he or she decides to leave the matrimonial house with the purpose of returning but then changes their mind.

Unhappy with the responses, he eventually composed a letter making vile accusations before requesting a legal separation judgement. Meena’s testimony featured accounts of how she was abused and mistreated by her in-laws. She described how she was not given any independence at home and was subjected to abuse. In his account, Meena was treated rudely and disrespectfully and was denied assistance with domestic issues. The court determined that the wife had left the marital home and that the letter he wrote her did not have a significant enough effect to cause her to refuse to return after taking into account the testimony and evidence, including the letters. It was therefore obvious that the wife had abandoned the husband. A ruling in the husband’s favour was made.

The circumstances of Bipin Chandra v. Prabhavati were comparable. In this case, the woman fled the marital residence after being questioned about her commitment to the union. Her father tried compromise between the two. Family members made numerous attempts, but in vain. Through his lawyer, the husband issued his wife with a registered notice accusing her of infidelity. He then received word from his mother that she was coming back to live with him in their marital home, at which point he contacted her father a telegram saying, “Must not send Prabha.” The husband then moved for divorce on the grounds of desertion. The Supreme Court ruled in this case that Prabha’s attempt at reconciliation was legitimately ended by the husband’s telegram. They added that until a divorce petition is filed, desertion is still considered to be an unfinished crime. Thus, the judge rendered a decision in the wife’s favour.

It is established law that the petitioner has the burden of establishing every element of desertion. Therefore, it is the petitioner’s responsibility to prove both desertion facts. It is up to him to prove that the desertion was without justification, occurred against his will and without his consent, and continued for the duration of the statutory period. It used to be accepted wisdom that desertion had to be proven beyond a reasonable doubt. The consensus now is that it could be proven by the balance of probabilities.


The petitioner must have been mistreated by the respondent ever after the marriage was solemnised. Since the Act didn’t define the word “cruelty,” it may be given a very broad definition. In Russell v. Russell, the legal doctrine of cruelty in divorce proceedings was established. The legal definition of cruelty is typically stated as behaviour that poses a risk to life, limb, or health (physical or mental), or that might reasonably be expected to do so.

In the case of Gollins v. Gollins, cruelty was also considered to include the desire to be cruel. The husband in this case had a history of extreme laziness and debt. The wife had to handle everything because of his laziness. She went through extreme mental pain and suffering as a result of this, while her husband just sat around all day. Although the husband wasn’t nasty on purpose, it was claimed that his behaviour implied that he was. There is a lot of uncertainty about this position. In several subsequent cases, it has been questioned whether mens rea is indeed required for a cruel act. In the end, it was determined that it was not a necessary component because the only factor that matters is whether the party’s behaviour qualifies as cruel.

There are essentially two types of cruelty:

Physical Cruelty

Historically, physical abuse committed by one spouse against the other that results in harm or raises a plausible fear of harm has been seen as cruelty. In the matter of Saptami v. Jagdish, the wife was subjected to brutal treatment, abuse, and insults over time. It was regarded as a blatant instance of cruelty. Similar to Ashok v. Santosh, when the wife pulled her husband’s flaccid penis during sexual contact. The Delhi High Court determined that this is cruel since it can result in excruciating agony.

Mental Cruelty

In recent years, people have become more interested in the mental component of cruelty. Though purpose is no longer a necessary component of cruelty, the mental condition still must be taken into consideration. The Supreme Court of India stated in the case of Praveen Mehta v. Inderjeet Mehta that mental cruelty is a state of mind and sensation thereof, a matter of inference, and that this inference must be drawn from the circumstances when considered all together.

At this point, it must be made clear that especially callous behaviour or negligence cannot, by itself, establish cruelty. A high watermark case on mental cruelty is Dastane v. Dastane. Mrs. Dastane used to level a variety of abhorrent, filthy, and false accusations against not only the husband but also the rest of the family. She verbally assaulted him and vowed to burn his family to the ground. She openly chastised him and even twice tore off her mangalsutra. This was a blatant instance of mental maltreatment. Numerous additional situations, including the false charge of unchastity, the demand for dowry, intoxication, etc., have all been deemed to be cruel acts.

Unsoundness of mind or Insanity

The respondent must be incurably insane in order to qualify. The petitioner has the burden of proving that the respondent is mentally unsound or has experienced this type of mental disorder constantly or occasionally to the point where it is unreasonable to expect the petitioner to remain with the respondent. Additionally, the petitioner must demonstrate that the unsoundness of mind is an incurable condition. The level of insanity for purposes of decision-making is unaffected if the court determines that the respondent’s insanity is incurable, as stated in Lock v. Lock.

Not whether the person has a mental condition, but whether it has afflicted them to the point where it makes survival with them impossible, is key in this situation. A divorce decree will be issued if this stipulation has been met. Whether a mental disease is of a sort and severity such that the petitioner cannot fairly be expected to live with the respondent would always be a question of fact.


A sentence of seven years or more in jail has been imposed on the respondent for a crime listed in the Indian Penal Code. On this basis, however, no divorce order shall be obtained until the respondent has already served at least three years in prison out of the seven years or more that have passed since the petition was filed. According to the section, a violation of the IPC’s definition of an offence calls for a seven-year sentence. This prerequisite must be met in order for it to qualify as a reason for divorce.

Venereal Disease

The respondent must have a communicable kind of venereal disease. It is a prima facie case that the respondent had committed adultery when it is not shown from the petitioner who offers proof that he or she has not had any sexual contact with anybody other than the respondent. The onus then shifts on the defendant to challenge the initial allegations made against him by requesting medical proof that Neither the respondent had the disease, nor had the respondent unintentionally acquired it, nor had the respondent committed adultery. Only the medical professional who evaluated the respondent directly can vouch for this.

When the husband’s HIV status was revealed in Mr. X v. Hospital Z, the wife was awarded a divorce. The Court noted that since venereal disease is a reason for divorce, it follows that a person who had it before getting married must be prohibited from getting married.

The Act does not indicate how long the sickness will last. Furthermore, it makes no difference under the current law whether the illness is curable or was brought on unintentionally. However, there are always exceptions; congenital syphilis, for instance, is not referred to as a “virulent venereal illness” or a “venereal disease in a communicable form.”

Presumption of death

People who are closely linked to the respondent haven’t heard from them in at least seven years, according to the respondent. It is assumed that a person is dead if no one who would ordinarily have heard of him while living does so after seven years. The person making the assertion bears the burden of establishing the respondent’s existence.

The Evidence Act also has some historical roots in this particular area. According to the Evidence Act, a person is assumed to be dead if no one who would ordinarily have heard of him had he been alive hears from him for seven years or longer. According to the Evidence Act and the SMA, the party requesting relief has the burden of proving that the respondent’s whereabouts have not been known to the relevant parties for the required amount of time.

However, no spouse may utilise the presumption of death to presume oneself to be a widower or widow and remarry. If he accomplishes this and the absent partner shows up, the former will be found guilty of bigamy, and the second marriage will also be null and void. The marriage is dissolved once a person is considered to be deceased, and the person requesting relief is then allowed to get married again. The following marriage will be void, however no one other than the missing spouse can contest this, if it is founded solely on presumption without dissolving the preceding union.


Leprosy must have been present in the respondent, and the disease cannot have been acquired from the petitioner. There is no requirement to provide evidence that the illness is contagious. However, it appears that there is no particular condition for leprosy under the Special Marriage Act, and any form of leprosy will be a reason for divorce or judicial separation. It is advised that because it covers all forms of leprosy, it is not as frequently used to cover “white spots,” which is what leprosy is known as in common parlance. Leprosy has only one criterion specified by the Act, and that is that it should not have been acquired from the petitioner.

Other Grounds of Divorce

Husband is guilty of Rape, Sodomy or Bestiality

On the grounds that her husband has committed rape, sodomy, and bestiality since the marriage was solemnised, the wife may file a petition with the District Court. These are also justifications for filing criminal charges. The husband’s conviction for these criminal offences, however, is insufficient to secure a divorce decree. The court will determine whether any evidence is desirable to be confirmed. The commission of the offence must be shown de novo either by the petitioner calling witnesses or by the respondent admitting guilt.

Decree or order of maintenance obtained by the wife

The woman may also file for divorce on the grounds that she has acquired a decree or maintenance order, that she has been living separately since the passing of such decree or order, and that she has not resumed her and her husband’s cohabitation.

No resumption of cohabitation after a decree of judicial separation

At least a year has passed since the court’s separation decision was issued before the parties started living together again. The legislature’s goal in providing the parties with this time and space was to increase the likelihood that the parties could reconcile. The legislature thinks there is no need to continue allowing the parties to use their right to cohabitation for any additional time in the absence of such a shift in the parties’ perspectives. Each case must be decided based on its unique facts and circumstances. Cohabitation does not automatically resume after one incident.

Non-compliance with a decree for restitution of conjugal rights

After the decree of restoration of conjugal rights has been passed, there has been no restitution of conjugal rights between the parties for a period of at least one year.

Divorce by Mutual Consent

A petition for divorce may be filed with the District Court by mutual consent in accordance with section 28 of the Act, which is principally concerned with laws relating to getting a divorce by mutual consent in relation to a marriage solemnised and/or registered under the Act. When requesting a divorce by mutual consent, the following are some important factors to take into account:

  1. A divorce petition must be filed with the District Court jointly by both parties.
  2. There must be a petition with the justification that they were living apart for at least a year.
  3. That it was impossible for them to cohabitate.
  4. They jointly decided to end their marriage.

The petition can only be submitted one year after the day the marriage certificate was entered in the Marriage Certificate Book. However, concessions may be made when the petitioner experiences unusual hardship or when the respondent exhibits extraordinary wickedness. In cases where the respondent is residing outside of the territories to which the Act extends, the petition for a divorce by mutual consent may be filed with a district court within its jurisdiction, depending on where the marriage was solemnised, where the respondent resides, or where the wife resides, if the wife is the petitioner.

Both parties must file a motion jointly to obtain a divorce decree between six months and eighteen months from the date the petition for divorce by mutual consent was filed.

Before issuing a divorce decision, the District Court takes into account a number of factors, including:

  • the petition still hasn’t been withdrawn.
  • that marriage has been solemnised in accordance with the Act.
  • the veracity of the petitioner’s allegations.
  • there was no use of coercion, deception, or force to get the divorce consent.
  • that the start of the proceedings was not delayed unnecessarily or improperly.

As a result, the Special Marriage Act’s requirements and processes for obtaining a divorce by mutual consent are fairly clear-cut and easy to understand.

However, couples seeking a divorce with mutual consent should be aware that the Act also includes regulations governing the awarding of alimony and maintenance, both permanently and while the divorce is pending. The parties to a divorce by mutual consent may agree on the parameters governing the payment of alimony or maintenance, and these terms may be included in the court’s pleadings. To prevent misunderstandings or further litigation, care must be made to include the proper clauses in the pleadings. Therefore, it is advised that the parties specifically discuss their arrangement and alimony and maintenance arrangements while discussing the different concerns associated to seeking a divorce by mutual consent with their advocates, and take proper efforts to guarantee that their interests are protected.

This essential section of the Special Marriage Act must be understood by anyone who marries under it. The parties cannot file for divorce in the District Court until one year has passed since the date of their marriage, as indicated in the marriage books. However, if the petitioner misrepresents the circumstances in order to file for divorce before the year has passed, the court may, if any order has been passed, state that order to take effect only after the year has passed, as mentioned in Section 29 of the Act. In those instances where the court considers that the petitioner has suffered exceptional hardship or the respondent has demonstrated exceptional depravity on his part, a request for divorce would be retained.


Divorce was not addressed in the clause. Divorce was considered too radical at the time for Indian society. The silent victims of such a strict regime were the women. But times have changed, things have changed, and the social order has changed. The law now offers a mechanism to end a bad marriage by filing for divorce in a court of law. Women who no longer have to suffer abuse or injustice at the hands of their husbands in silence are the true winners of such a policy.

However, it is anticipated that the way the judiciary is handling the issue of irretrievable breakdown of marriage may utterly halt the marital system. Every theory has aspects that are both good and bad. Their applicability varies depending on the circumstance. Therefore, it is crucial that our nation’s parliamentarians approach the topic with extreme caution after carefully weighing its potential effects in the future.


Author: Arryan Mohanty,
Symbiosis Law School, Nagpur/Student

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