Earlier, marriages were initiated where the bride and the groom were unaware of their identity getting hitched to, as every decision was taken by their respective guardians and meeting of bride and the groom was not a custom that prevailed (however this was in the ancient times).Times have changed and every decision identifying with marriage is taken by the bride and groom themselves in this age of nuclear families and heightened individuality.
In India, the general audacious practice is that parents select the prospective bride/groom for their children from the same caste as theirs. Inter-caste marriage is as yet considered a taboo in many areas and strata in our nation. India still follows a very rigid structure of the caste system. Individuals are relied upon marrying within their caste and whoever marries out of their caste and 'challenges' the traditional obstructions are disregarded in the society either specifically or in a secretive way.
Things get outrageous in specific situations where the families take inter-case/ inter-religion marriage as a badge of eternal dishonor. The society has turned out to be numb to the expression "honor killings" which are reported every year. Unfortunately, the families take pride in indulging in such activities.
There came a grave requirement for a law to defend the interests of those individuals who need to go for inter-caste marriage. Accordingly, the Parliament enacted the Special Marriage Act, 1954 which accommodates for a special form of marriage, its registration, and divorce. A marriage between any two persons belonging to any religion or creed may be solemnized under this Act. Being a secular Act, it plays a key role in liberating individuals from customary requirements of marriage.
The Special Marriage Act ("SMA") is not worried about the religion of the individual aiming to get married. This applies to all parties who are registered under the SMA. The Act is not worried whether the marriage occurred between the people of same religion or between persons of a different religion.
Moreover, as stated earlier the Special Marriage Act not only governs the marriage but also governs divorce between the spouses of a different religion. Sec. 28 of the Special Marriage Act primarily deals with the provisions relating to obtaining a divorce by mutual consent in respect of a marriage solemnized and/or registered under the Act, a petition for divorce by mutual consent may be presented to the District Court.
Important points to be noted- A few key points to be considered while seeking a divorce by mutual consent are as follows:
1. A petition for divorce must be presented to the District Court by both parties together.
2. The petition must be on the grounds,
• That they have been living separately for a period of one year or more,
That they have not possessed the capacity to live together. But, in cases where the court is of the view that the petitioner has suffered endured outstanding or the respondent has demonstrated immorality on their part, a petition for divorce would be maintained, but if any misrepresentation is found on the part of the petitioner to apply for divorce before the expiry of 1 yr, the court may if any order has been passed, state the order to take effect only after the expiry of 1 yr, as mentioned in Sec. 29 of the SMA Act, and
• That they have mutually agreed that the marriage should be dissolved.
3. The petition may be presented only after one year from the date of entering the certificate of marriage in the Marriage Certificate Book. However, relaxation may be provided in cases where exceptional hardship is suffered by the petitioner or in cases of exceptional depravity on the part of the respondent.
4. The petition seeking divorce by mutual consent could be presented to a District Court, within whose jurisdiction, either,
• The marriage was solemnized,
• The respondent resides, or
• In case the wife is the petitioner, where she is residing,
• The parties to the marriage last resided together, or
• The petitioner resides, in cases where the respondent is residing outside the territories to which the Act extends.
5. Between 6 months after, and within 18 months of, the date of presentation of the petition seeking divorce by mutual consent, both parties must make a motion together seeking a grant of a decree of divorce.
6. Before passing a decree of divorce, the District Court considers the following, among other aspects:
• That the petition has not been withdrawn yet,
• That a marriage has been solemnized under the Act,
• That the averments in the petition are true,
• That consent for divorce has not been obtained by force, fraud or undue influence,
• That there has not been any needless or improper delay in instituting the proceedings.
Thus, for obtaining a divorce by mutual consent under the Special Marriage Act the above-mentioned provisions and the procedure must be fulfilled by the spouses.
Provisions relating to Alimony pendente lite, permanent alimony, and maintenance:
Parties desirous of obtaining a divorce by mutual consent must, however, keep in mind that the Act also contains provisions dealing with a grant of alimony and maintenance, both permanent and during the pendency of the proceedings. In the cases of divorce by mutual consent, the parties may agree to the terms relating to payment of alimony or maintenance and the same may be incorporated in the pleadings before the Court. However, care has to be taken that suitable provisions are incorporated in the pleadings to avoid future misunderstandings or litigation. It is therefore advisable that, while discussing the various issues connected with seeking a divorce by mutual consent with their advocates, the parties must specifically discuss their arrangement and agreement on alimony and maintenance, and take suitable steps to ensure that their interest is safeguarded.
Documents needed
• Notice duly filled and signed by both the parties;
• Affidavit declaring that all the conditions have been fulfilled (your age, no living spouse etc);
• Residence, DOB & ID;
• Passport size;
• Copy of divorce decree/order in case of a divorcee and death certificate of spouse in case of widow/widower, and
• In case of a foreign national, a no-objection certificate from the concerned Embassy regarding his / her present status.
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