Grounds for Divorce under the Special Marriage Act

Section 27(1) of the Special Marriage Act lists the fault grounds on which either spouse may seek divorce. They closely track the Hindu Marriage Act, and courts read the two provisions together, so the leading Hindu law cases on cruelty, desertion and mental disorder apply here too. One ground, leprosy, was removed in 2019. This note explains each of the remaining grounds and the cases that define them.

1. The Grounds

Section 27(1), clauses (a) to (h)

Figure 1: Section 27(1), clauses (a) to (h)

Who may petition. Either the husband or the wife may petition the district court, subject to the bar on petitions within one year of marriage in s.29 (Topic 17)
(a) Adultery. The respondent has, after the marriage, had voluntary sexual intercourse with any person other than the spouse. A single act suffices; proof is usually by circumstantial evidence on a preponderance of probabilities.
(b) Desertion. The respondent has deserted the petitioner for a continuous period of at least two years immediately before the petition. The Explanation defines desertion as desertion without reasonable cause and without consent or against the wish of the petitioner, and includes wilful neglect.
(c) Imprisonment. The respondent is undergoing a sentence of seven years or more for an offence as defined in the Indian Penal Code, now read as the Bharatiya Nyaya Sanhita.
(d) Cruelty. The respondent has, since the marriage, treated the petitioner with cruelty, physical or mental.
(e) Mental disorder. The respondent has been incurably of unsound mind, or has suffered continuously or intermittently from mental disorder of such a kind and extent that the petitioner cannot reasonably be expected to live with the respondent. Mental disorder includes mental illness, arrested or incomplete development of mind, psychopathic disorder and schizophrenia.
(f) and (h). Venereal disease in a communicable form; and the respondent not having been heard of as alive for seven years or more by those who would naturally have heard.
Clause (g) omitted. Leprosy was removed as a ground by the Personal Laws (Amendment) Act, 2019.

2. Leading Cases

How courts read the grounds

Figure 2: How courts read the grounds

Desertion. In Bipin Chander Jaisinghbhai Shah v Prabhawati (1956), the Supreme Court held that desertion requires both the fact of separation and the intention to bring cohabitation permanently to an end (animus deserendi), without reasonable cause and without the other's consent; the burden is on the petitioner.
Cruelty. Cruelty is not defined. In V. Bhagat v D. Bhagat (1994), mental cruelty was described as conduct inflicting such suffering that the parties cannot reasonably be expected to live together. Samar Ghosh v Jaya Ghosh (2007) gave a non-exhaustive list of instances of mental cruelty.
Mental disorder. In Ram Narain Gupta v Rameshwari Gupta (1988), the Court held that the mere existence of a mental disorder is not enough; its kind and degree must be such that the petitioner cannot reasonably be expected to live with the respondent.
Adultery after Joseph Shine. Joseph Shine v Union of India (2018) struck down the offence of adultery, but adultery remains a ground for divorce.

⚠ Exam trap

The fault grounds in s.27(1) are adultery, desertion for two years (including wilful neglect), imprisonment for seven years or more, cruelty, incurable unsoundness of mind or disqualifying mental disorder, communicable venereal disease, and seven years' absence. Leprosy, formerly clause (g), was omitted in 2019. Desertion needs both separation and animus deserendi. Mental disorder must make cohabitation unreasonable. Adultery is no longer a crime but remains a ground.

3. Frequently Asked Questions

What is the period of desertion required for divorce under the Special Marriage Act?

A continuous period of not less than two years immediately preceding the presentation of the petition. Desertion includes wilful neglect of the petitioner, and must be without reasonable cause and without the petitioner's consent or against his or her wish.

Is leprosy still a ground for divorce under the Special Marriage Act?

No. Clause (g) of s.27(1), which made leprosy a ground, was omitted by the Personal Laws (Amendment) Act, 2019, which removed leprosy as a ground from several personal laws.

4. Related Topics

Topic 16: Additional Grounds for the Wife and Non-Resumption Grounds. Section 27(1A) and (2)
Topic 18: Divorce by Mutual Consent, Section 28. The no-fault route.