Alternative Relief and One-Year Bar: Sections 27A and 29

Two provisions of the Special Marriage Act protect marriages from being dissolved in haste. Section 27A lets the court grant judicial separation instead of divorce, keeping the marriage alive where reconciliation seems possible. Section 29 bars any divorce petition in the first year of marriage, unless the court permits it on grounds of exceptional hardship or depravity. This note covers both provisions and their limits.

1. Alternative Relief: Section 27A

Figure 1: Judicial separation instead of divorce

• Text. In any proceeding under the Act, on a petition for divorce, except so far as the petition is founded on clause (h) of s.27(1), the court may, if it considers it just having regard to the circumstances, pass instead a decree for judicial separation.
• Purpose. It gives the parties time and space to reconcile while relieving the petitioner of cohabitation.
• Exception. Where the respondent has not been heard of for seven years, separation serves no purpose, so the court cannot substitute it.
• Comparison. Section 13A of the Hindu Marriage Act is similar, but also excludes grounds tied to conversion and renunciation of the world, which have no counterpart in this Act.

2. The One-Year Bar: Section 29

Figure 2: Divorce petitions in the first year

• General rule, s.29(1). No petition for divorce may be presented unless, on the date of presentation, one year has passed since the certificate of marriage was entered in the Marriage Certificate Book.
• Leave. The district court may, on application, allow a petition within the year on the ground of exceptional hardship suffered by the petitioner or exceptional depravity on the part of the respondent.
• Misrepresentation. If at the hearing it appears that leave was obtained by misrepresentation or concealment, the court may make any decree effective only after one year from the marriage, or dismiss the petition without prejudice to a fresh petition after the year.
• Factors, s.29(2). In deciding whether to grant leave, the court must consider the interests of any children and whether there is a reasonable probability of reconciliation before the year expires.
• Scope. The bar applies to divorce, not to petitions for nullity, judicial separation or restitution. A mutual consent petition requires a year's separation in any case (Topic 18)

3. Frequently Asked Questions

Can a divorce petition be filed in the first year of a special marriage?

Only with the district court's leave under s.29(1), which may be granted on the ground of exceptional hardship suffered by the petitioner or exceptional depravity on the part of the respondent. The court considers the interests of the children and the probability of reconciliation.

In which case can the court not substitute judicial separation for divorce?

Where the petition is founded on s.27(1)(h), that the respondent has not been heard of as alive for seven years or more. In all other divorce proceedings, the court may grant judicial separation instead if it considers it just.

Does the one-year bar apply to a petition for nullity?

No. Section 29 speaks only of petitions for divorce. A petition for a decree of nullity under s.24 or s.25 may be filed at any time, subject to the time limits in s.25 for certain voidable grounds.

4. Related Topics

• Topic 11: Judicial Separation, Section 23. The alternative decree.
• Topic 18: Divorce by Mutual Consent, Section 28. Separation and consent.