Rules for divorce under special marriage act

This query is : Resolved 
 

(Querist)
23 October 2018

Dear Experts,

Please hep me with information on rules for filing divorce if the marriage is performed under special marriage act.

1. Is there a separation period necessary if the divorce is to be filed on the grounds of cruelty.
2. Is verbal abuse, physical abuse by wife to child in front of husband and thrashing husbands parents out of the house comes under the cruelty if proven with evidences such video/audio recordings.
3. If the parents are separated by wife as a condition by wife then can the husband desert the wife and accommodate with parents and file for divorce immediately on grounds of cruelty.
4. If the wife is beating the child and abusing the child in front of husband can be termed as cruelty.

Please provide your opinion I want to file a divorce petition on the grounds of cruelty, we got married under special marriage act in 2012. Currently I have moved my parents as it was demanded by my wife. My wife currently blackmails me and threatens me to harm my 4 month old daughter if I decide to accompany my parents. Now she is not even allowing me to visit my parents and take my daughter to meet them. Please provide me your opinion as to how should I proceed to file a divorce.

Thanks
Zaheer Khan



Siddharth JainOnline (Expert)
23 October 2018

Section 27(1) of the SMA, 1954 deals with �desertion as a ground for divorce�. The section requires a period of atleast two years desertion as a pre-condition to a decree for divorce.

But, you can file for divorce on Grounds of cruelty by wife as your voice action of kicking out your parents from your house, beating the child and physical cruelty towards you amount to cruelty upon the husband and is a valid role for divorce under the special Marriage Act.

You will have to file a petition to seek custody of your child on Grounds of negligent and reckless behaviour of your wife towards the child and constantly physically abusing the child.

For any other queries feel free to contact me at isidjain1@gmail.com

ZAHEER HAMID KHAN (Querist)
23 October 2018

Sir,

Please confirm if the petition can be filed on immediate basis on the grounds of cruelty without separation period.

Regards
Zaheer Khan

KISHAN DUTT RETD JUDGEOnline (Expert)
23 October 2018

Section 27 in The Special Marriage Act, 1954
27. Divorce.—1[
(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— 2[(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or]
(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); 3[***]
(d) has since the solemnization of the marriage treated the petitioner with cruelty; or 4[(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.—In this clause,—
(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or
(f) has been suffering from venereal disease in a communicable form]; or
(g) has 5[***] been suffering from leprosy, the disease not having been contacted from the petitioner; or
(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; 6[***] 7[Explanation.—In this sub-section, the expression “desertion” means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly;] 8[***] 9[***] 7[(1A) 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;
(ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898) (5 of 1898), 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 decree or order, cohabitation between the parties has not been resumed for one year or upwards.] 10[(2) Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), may present a petition for divorce to the district court on the ground—
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]
Please mark “LIKE” if satisfied by my answer.

ZAHEER HAMID KHAN (Querist)
24 October 2018

Dear Sir,

My wife is not willing to go for divorce under mutual consent. I have filed 4 NC(Non Cognizable) complaints in police station against my wife, I have also issued letters through an advocate addressing the cruelty on me and asking for divorce under mutual consent. My wife is now cruel not only towards me but also towards my parents and 4 month old daughter. Please help me to understand if I can file for divorce petition on the grounds of cruelty without separation period. I have all the evidences to prove her cruelty in terms of audio and video recordings right from the very first year of our marriage.

Regards
Zaheer Khan

ZAHEER HAMID KHAN (Querist)
24 October 2018

Dear Sir,

Really appreciate your prompt response, but my need is to file for divorce case even though it may take decades to reach at the final stage. The reason I want to file a divorce case is because I know my wife wont agree for mutual consent and I cant just desert her without filing divorce because she can come to my other residence or my office to abuse me and harass me in front of people.

The other reason for filing the divorce is as below.

1. Not to seek justice in short span of time.
2. Divorce can help me fight false cases because so far my wife has not filed any criminal case or domestic violence but I am sure once I file the divorce case then she might file a section 498A which can be easily won and on the basis of which my divorce case becomes more stronger and i get another reason to ask for divorce.
3. Through Divorce case i can later file for child custody which my wife will obviously not make me get and she might finally end up coming to divorce on mutual consent.

I just want to get rid of her through filing of divorce and hence I need help to file the petition on the basis of cruelty without separation period.

Regards
Zaheer Khan

ZAHEER HAMID KHAN (Querist)
25 October 2018

Dear Sir,

Really appreciate your prompt response, but my need is to file for divorce case even though it may take decades to reach at the final stage. The reason I want to file a divorce case is because I know my wife wont agree for mutual consent and I cant just desert her without filing divorce because she can come to my other residence or my office to abuse me and harass me in front of people.

The other reason for filing the divorce is as below.

1. Not to seek justice in short span of time.
2. Divorce can help me fight false cases because so far my wife has not filed any criminal case or domestic violence but I am sure once I file the divorce case then she might file a section 498A which can be easily won and on the basis of which my divorce case becomes more stronger and i get another reason to ask for divorce.
3. Through Divorce case i can later file for child custody which my wife will obviously not make me get and she might finally end up coming to divorce on mutual consent. I just want to get rid of her through filing of divorce and hence I need help to file the petition on the basis of cruelty without separation period.

Regards
Zaheer Khan



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