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Section27 Divorce- 1) Subject to the provisions of this Act and to the rules made
thereunder, a petition for divorce may be presented to the district court either by the husband
or the wife on the ground that the respondent;
a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any
person other than his or her spouse.
Explanation: The aggrieved spouse may seek either a divorce or a separation on the
ground that the respondent has after the solemnization of the marriage, had voluntary sexual
intercourse with any person other than his or her spouse.
b) has deserted the petitioner for a continuous period of not less than two years immediately
preceding the presentation of the petition. Section 27 of the Special Marriage Act, 1954
enumerates the grounds for divorce of which desertion is one of the grounds. When one
spouse leaves the other, which is not justifiable the deserted spouse has a very remedy by way
of matrimonial relief.
As pointed out by the Apex Court in Savitri Pandey v. Prem Chandra Pandey, two elements
are essential so far as the deserted spouse is concerned:
Hindu Marriage Act, 1955 Desertion for less than 2 Divorce or judicial
Sections 13(1)(b) and
years. separation.
Section10
d) has since the solemnization of the marriage treated the petitioner with cruelty. Cruelty is a
ground for divorce as well as for judicial separation. Section 27(c) states that, a marriage may
be dissolved on the ground that the other party has after the solemnization of the marriage,
treated the petitioner with cruelty. Prior to 1976, cruelty was only a ground for judicial
separation. Another significant change brought about by the 1976 Amendment is that the
concept of cruelty has been enlarged. Earlier, it was confined to such cruelty so as to cause
reasonable apprehension in the mind of the petitioner that it will be harmful or injurious for
the petitioner to live with the other party. However, now the petitioner has simply to
establish that the respondent has treated the petitioner with cruelty.
Act Provision Relief
Hindu Marriage Act, 1955 Treated petitioner with Divorce or judicial
Section 13(1)(i) and cruelty after marriage. separation.
Section 10.
Explanation: Section 27(e) of the Special Marriage Act; if either party to the marriage is: (a)
incapable of giving solid consent to it in consequence of unsoundness of mind; or (b) though
capable of giving a solid consent, has been suffering from mental disorder of such a kind or
to such an extent as to be unfit for marriage and the procreation of children; or (c) has been
subject to recurrent attacks of insanity, then the marriage shall be voidable and shall be
annulled by decree of nullity.
g) has been suffering from leprosy, the disease not having been contracted from the
petitioner;
Under Hindu Marriage Act, 1955 as amended in 1976, divorce is available if the other party
is suffering from virulent and incurable form of leprosy.
Under Special Marriage Act, 1954 also leprosy is a ground for divorce with a difference that
in case of leprosy, the disease need not be virulent or incurable though it should not have
been contracted from the petitioner.
h) has not been heard of as being alive for a period of 7 years or more by those persons who
would naturally have heard of the respondent if the respondent had been alive.
Amongst the rarely resorted grounds for divorce is that the respondent has not been heard of
as being alive for a period of 7 years or more by those persons who would have naturally
heard of it had the respondent been alive. This ground is provided in Section 27(1) of the
Special Marriage Act, 1954.
1(A). A wife may also present a petition for divorce to the district court on the ground-
i. that her husband has, since the solemnization of the marriage been
guilty of rape, sodomy or bestiality; A wife can seek divorce also
on the ground that since the solemnization of the marriage, the
husband has been guilty of rape or sodomy or bestiality.
Any of the offences must have been committed since the
solemnization of the marriage and not prior to that. Also, mere
attempt to commit, or request to commit such an act is not covered
in this clause.
ii. that in suit under section 18 of Hindu Adoptions and Maintenance
Act, 1956, or in a proceeding under Section 125 of Crpc, a decree
or order, as the case may be, has been passed against the husband
awarding maintenance to the wife notwithstanding that she was
living apart and that since the passing of such a decree or order,
cohabitation between the parties has not been resumed for one year
or upwards. Non-resumption of cohabitation for period of one
year or more after the passing of a decree for maintenance under
Section 18 of Hindu Adoption and Maintenance Act, 1956, or
Section 125 of the Crpc 1973, or Section 488 of the old code
corresponding with present Section 125, is another ground on
which a wife can file a petition for divorce. This ground was added
in 1976.
2. Subject to the provisions of this Act and the rules made thereunder, either party to a
marriage, whether solemnized before or after commencement of the Special Marriage Act,
1976, may present a petition for divorce to the District Court on the ground-
In any proceedings under this Act, on a petition for dissolution of marriage by a decree of
divorce, except in so far as the petition is founded on the ground mentioned in clause(h) of
sub-section (1) of Section 27, the court may, if it considers it just so to do having regard to
the circumstances of the case, pass instead a decree of for judicial separation.
The court always grants the remedy which has been asked for by the parties but Section
27(A) is an exception to this rule as under this section the court can grant suo-moto relief of
judicial separation in any petition which has been filed for dissolution of marriage under
Section 27 instead of passing a decree of divorce.
But there are certain exceptional situations where court cannot exercise this extra-ordinary
power and those exceptional situations are:
Where the person has not been heard alive for period of 7 years or more (presumption of civil
death).
Section 28, Divorce by Mutual Consent- Subject to the provisions of this Act and to the rules,
a petitioner for divorce may be presented by both the parties together on the ground that they
have been living separately for a period of one year or more, that they have not been able to
live together, and that they have mutually agreed that this marriage should be dissolved.
2. On the motion of both the parties made not earlier than 6 months after the date of
the presentation of the petition and not later than 18 months, if the petition is not
withdrawn in the meantime, the District Court, shall, on being satisfied, after hearing
the parties and after making such enquiry as it thinks fit, that the averments are true,
pass a decree, declaring the marriage to be dissolved with effect from the date of the
decree. The requirements which have to be compiled with under this provision are:
i. The parties have been living separately for a period of at least one year.
ii. They have not been able to live together.
iii. They have mutually agreed to have the marriage dissolved
After filing of petition under Section 13(B)(1), there are certain, mandatory obligations
that are to be fulfilled by the parties as well as court.
b) Obligation imposed on the court under Section 28(2). This section states that after
filing of joint motion, court will further examine :-
1. Averments made in petition are correct.
2. Call the parties and listen to them.
3. Make enquiry, if the court thinks fit.
In order to relief under provisions of the Act, it is mandatory that marriage should either have
been performed under the provisions of this Act, or registered thereunder.