Special Marriage Act

Grounds of Divorce

Grounds for divorce available to both parties are:

1. Adultery: Adultery means after the solemnisation of marriage, he/she had voluntary sexual intercourse with any person other than his or her spouse; or

2. Desertion: During the subsistence of the marriage, he has deserted the petitioner for a continuous period of not less than two years, immediately preceding the presentation of the petition;

3. Imprisonment: A person is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code;

4. Cruelty: A party has, since the solemnisation of the marriage, treated the other party with cruelty. Cruelty can be mental or physical cruelty.

5. Unsoundness of Mind or Mental Disorder: A party 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 other party cannot reasonably be expected to live with him/her.

Explanation:

(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;

6. Venereal disease: A person has been suffering from venereal disease in a communicable form; or has been suffering from leprosy, the disease not having been contracted from the petitioner; or

7. Missing: If a person 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;

Additional grounds of divorce

Either party to a marriage, whether solemnised before or after the commencement of the Special Marriage (Amendment) Act, 1970, may present a petition for divorce to the district court on the following grounds:

(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.

A wife may also present a petition for divorce to the district court on the following grounds:

1. Sodomy and bestiality has been practised by the husband after the solemnisation of the marriage.

2. In suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (or under the corresponding section 488 of the Code of Criminal Procedure, 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.