Wife's Additional Grounds and Non-Resumption Grounds

Beyond the fault grounds in section 27(1), the Special Marriage Act provides two further sets of divorce grounds, both inserted by the Special Marriage (Amendment) Act, 1970. Section 27(1A) gives the wife two grounds of her own. Section 27(2) allows either spouse to seek divorce where an earlier decree for judicial separation or restitution has not led to reconciliation within a year. This note covers both, the leading case on the defaulting spouse, and the comparison with the Hindu Marriage Act.

1. The Wife's Grounds: Section 27(1A)

Figure 1: Two grounds available only to the wife

• (i) Sexual offences. The husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality. The ground concerns conduct towards any person, and is judged on the civil standard of proof.
• (ii) Maintenance order. A decree under s.18 of the Hindu Adoptions and Maintenance Act, 1956, or an order under s.125 of the CrPC (now s.144 of the BNSS), has been passed awarding the wife maintenance though she was living apart, and cohabitation has not been resumed for one year or more since.
• Purpose of (ii). A maintenance order made while the wife lives apart shows that the marriage has effectively broken down; a year without reconciliation after it gives her a route to divorce.

2. Either Party: Section 27(2)

Figure 2: Divorce after an earlier decree

• (i) After judicial separation. No resumption of cohabitation for one year or more after a decree for judicial separation (Topic 11)
• (ii) After restitution. No restitution of conjugal rights for one year or more after a restitution decree (Topic 10)
• Either party. The petition may be presented by either spouse, including the one against whom the earlier decree was passed. These are breakdown grounds, not fault grounds.
• Dharmendra Kumar v Usha Kumar (1977). Under the parallel s.13(1A) of the Hindu Marriage Act, the Supreme Court held that a husband who did not comply with his wife's restitution decree could still seek divorce. Mere non-compliance is not a 'wrong' disentitling him to relief; only serious misconduct would be.

3. Comparison with the Hindu Marriage Act

Figure 3: Wife's special grounds in the two Acts

• Shared grounds. Both Acts give the wife the grounds of rape, sodomy or bestiality, and a maintenance order followed by a year's separation.
• Hindu-specific grounds. The Hindu Marriage Act adds grounds tied to Hindu custom: an earlier wife from before 1955 still living, and repudiation of a child marriage solemnized before the wife turned 15. These have no place in a civil marriage under this Act.

4. Frequently Asked Questions

Can a husband who disobeyed a restitution decree seek divorce under section 27(2)?

Yes. Section 27(2)(ii) allows either party to seek divorce where there has been no restitution for one year after the decree. Under the parallel Hindu law provision, the Supreme Court held in Dharmendra Kumar v Usha Kumar (1977) that mere non-compliance is not a wrong that bars relief.

What must a wife prove to seek divorce on the basis of a maintenance order?

That a decree under s.18 of the Hindu Adoptions and Maintenance Act, or an order under s.125 of the CrPC (now s.144 of the BNSS), was passed awarding her maintenance though she was living apart, and that cohabitation has not been resumed for one year or more since.

5. Related Topics

• Topic 15: Grounds for Divorce, Section 27(1). The fault grounds.
• Topic 17: Alternative Relief and the Bar on Early Petitions. Sections 27A and 29.