Date:June 30, 2022
Here we will discuss Divorce by mutual consent under Special Marriage Act.
Read here : What is mutual consent divorce ?
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Section 28 of Special Marriage Act 1954 talks about Divorce by mutual consent.
Section 28 provides that petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together.
Such petition can be presented on the grounds provided therein.
Read here : To whom Special Marriage Act, 1954 is applicable
Section 28 provides following grounds on which a petition for dissolution of marriage can be presented in court:
(1) Both husband and wife has been living separately for a period one year or more, and
(2) They have not been able to live together, and
(3) They have mutually agreed that the marriage should be dissolved.
The above are the explicit conditions which are provided under section 28 of Special Marriage Act. All the above grounds are mandatory before a petition for dissolution of marriage is present in court.
If any of the above grounds are missing from the petition for dissolution of marriage, the Court may reject such petition.
Other conditions of Divorce by mutual consent
Besides the grounds provided in Section 28 of Special Marriage act, there are some other conditions. These conditions court may weigh before granting decree of divorce by mutual consent. These are:
(1) Marriage is solemnised as per provisions of Special Marriage Act.
(2) Parties to marriage i.e. husband and wife must have settled all their dispute or differences, if any
They must have entered in full and final understanding. Nothing should be left, which may be a reason of future contentions or litigation between the parties to marriage.
If any permanent alimony is to be given, the wife must have received all amount of alimony, or if the alimony is to be given in future dates or monthly the husband and wife must have entered into a written understanding in that respect.
(3) If Parties to marriage i.e. husband and wife has any child, they must have entered into an understanding as to how child to be raised. There must be a clear understanding of custody and finance of child education to be met.
Followings are steps of Divorce by mutual consent process under Section 28 as in Special Marriage Act 1954
First – Parties to marriage i.e. husband and wife filing the joint petition for divorce by mutual consent in the court of law.
Second – Court makes inquires and takes statement of Parties.
Third – Court passes and order. Gives parties cooling off period minimum of six months.
Fourth – Parties present a second motion. This second motion must be presented after six months of court’s first order and before the expiry of eighteen months.
Fifth – Court hears both the parties. Court makes inquiries for its satisfaction as to the marriage was solemnised and that the averments made in the petition are true.
Sixth – One being satisfied and taking statement of the parties, Court passes a decree of dissolution of marriage.
Read here : Section 28 as in Special Marriage Act 1954
So, a Divorce by mutual consent under Special Marriage Act can be presented as per the provisions of section 28 of Special Marriage Act 1954.
It is noteworthy that parties approaching for divorce with mutual consent must satisfy grounds given under section 28 and other conditions as discussed above.
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