Special Marriage Act
Divorce by Mutual Consent: Section 28, Special Marriage Act
Where both spouses agree that their marriage has ended, the Special Marriage Act allows them to dissolve it without proving fault. Section 28, the model for section 13B of the Hindu Marriage Act, requires a year's separation, a joint petition and a second motion after a waiting period. The Supreme Court's decisions under section 13B, on withdrawal of consent and on waiving the waiting period, apply equally here. This note covers the procedure, the conditions and the leading cases.
1. The Procedure
Figure 1: Two motions and a decree
- First motion, s.28(1). A petition presented to the district court by both parties together on the ground that they have been living separately for 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.
- Second motion, s.28(2). On the motion of both parties made not earlier than six months and not later than eighteen months after the petition, if it has not been withdrawn.
- Decree. After hearing the parties and making such inquiry as it thinks fit, if satisfied that the marriage was solemnized under the Act and that the averments are true, the court passes a decree dissolving the marriage with effect from the date of the decree.
- Living separately. Means not living as husband and wife. Parties may live under the same roof and still be living separately, if they do not share a marital life.
2. Leading Cases
Figure 2: Decisions under s.13B of the Hindu Marriage Act, applied to s.28
- Consent until decree. In Sureshta Devi v Om Prakash (1991), the Supreme Court held that mutual consent must continue until the decree. Either party may withdraw consent before the second motion, and the court cannot then pass a decree. Hitesh Bhatnagar v Deepa Bhatnagar (2011) reaffirmed this.
- Amardeep Singh v Harveen Kaur (2017). The six-month waiting period is directory, not mandatory. The court may waive it, on an application that can be made a week after the first motion, if the conditions below are met.
- Shilpa Sailesh v Varun Sreenivasan (2023). A Constitution Bench held that the Supreme Court may, under Article 142, dispense with the waiting period and grant divorce by mutual consent, and may also dissolve a marriage on irretrievable breakdown (Topic 19)
Figure 3: Conditions for waiving the six-month period (Amardeep Singh, 2017)
⚠ Exam trap A mutual consent petition requires one year's separation, inability to live together and mutual agreement (s.28(1)). The second motion must be made between six and eighteen months after the petition (s.28(2)). Consent can be withdrawn at any time before the decree (Sureshta Devi, 1991). The six-month period is directory and may be waived (Amardeep Singh, 2017). The decree dissolves the marriage from its own date. |
3. Frequently Asked Questions
Can one spouse withdraw consent after the first motion?
Yes. Mutual consent must subsist until the decree is passed. If either party withdraws consent before the second motion, the court cannot grant a decree by mutual consent, as held in Sureshta Devi v Om Prakash (1991) and reaffirmed in Hitesh Bhatnagar (2011).
Can the six-month cooling-off period be waived?
Yes. In Amardeep Singh v Harveen Kaur (2017), the Supreme Court held the period directory, and allowed waiver where the parties have been separated for the statutory period, mediation has failed, they have genuinely settled all issues, and waiting would only prolong their agony.
4. Related Topics
- Topic 19: Irretrievable Breakdown and Article 142. Divorce beyond the statutory grounds.
- Topic 20: Remarriage after Divorce, Section 30. What follows the decree.