Jurisdiction and Procedure under the Special Marriage Act

Matrimonial petitions under Chapters V and VI of the Special Marriage Act, for restitution, judicial separation, nullity and divorce, follow a procedure laid down in Chapter VII. It fixes which court may hear a petition, what the petition must contain, how proceedings are conducted, and what the court must be satisfied of before granting relief. This note covers sections 31 to 35 and 40, and the role of family courts.

1. The Court and Its Jurisdiction

Figure 1: Forums under s.31(1)

• District court. Petitions are presented to the district court, defined in s.2(e). Where a family court has been set up under the Family Courts Act, 1984, it exercises the district court's jurisdiction over these petitions, and the district court's jurisdiction is excluded (ss.7, 8 of that Act)
• Section 31(1). The petition may be presented to the district court within whose local limits (i) the marriage was solemnized, (ii) the respondent resides at the time of presentation, (iii) the parties last resided together, (iii-a) the wife, if she is the petitioner, resides on the date of presentation, or (iv) the petitioner resides, if the respondent lives outside the territories to which the Act extends or has not been heard of for seven years.
• Wife's residence. Clause (iii-a), inserted in 2003, spares a wife the burden of litigating where the husband lives or where they last lived together.
• Section 31(2). A district court may entertain a petition by a wife domiciled in the territories for nullity or divorce, if she has been ordinarily resident there for three years before the petition and the husband is not resident there.

2. The Petition and the Hearing

Figure 2: Procedural rules

• Contents, s.32. The petition must state, as distinctly as possible, the facts on which relief is claimed, and that there is no collusion between the parties. It is verified like a plaint and may be used as evidence.
• In camera, s.33. Every proceeding under the Act is held in camera. No one may print or publish any matter relating to it, except a High Court or Supreme Court judgment published with the court's permission; breach is punishable with fine up to one thousand rupees.
• Counter-claim, s.35. In a petition for divorce, judicial separation or restitution, the respondent may oppose on the ground of the petitioner's adultery, cruelty or desertion and also counter-claim for relief on that ground.
• CPC, s.40. Proceedings are regulated by the Code of Civil Procedure as far as may be, subject to the Act and the High Court's rules.

3. Duty of the Court: Section 34

Figure 3: Conditions for any decree

• Satisfaction, s.34(1). The court decrees relief only if satisfied that a ground exists; that in an adultery case the petitioner did not connive at or condone it, and in a cruelty case did not condone it; that in a mutual consent case consent was not obtained by force, fraud or undue influence; that there is no collusion; that there was no unnecessary or improper delay; and that there is no other legal ground against relief.
• Reconciliation, s.34(2). In the first instance, the court must make every endeavour to bring about a reconciliation, where consistent with the nature of the case.
• Referral, s.34(3). It may adjourn for up to fifteen days and refer the matter to a person named by the parties, or nominated by the court, to report on reconciliation.
• Copy, s.34(4). On a decree of divorce, each party receives a copy free of cost.

4. Frequently Asked Questions

Where can a wife file a divorce petition under the Special Marriage Act?

In addition to the general forums under s.31(1), a wife who is the petitioner may file in the district court, or family court, within whose jurisdiction she is residing on the date of presentation of the petition, under clause (iii-a).

Can proceedings under the Special Marriage Act be reported in the media?

No. Under s.33, every proceeding is held in camera, and printing or publishing any matter relating to it is unlawful, except a judgment of the High Court or Supreme Court published with the court's permission. Breach is punishable with fine up to one thousand rupees.

5. Related Topics

• Topic 22: Alimony and Maintenance. Ancillary relief.
• Topic 24: Appeals, Enforcement and Transfer. After the decree.