Restrictions on Petitions, Jurisdiction and Procedure

Section 29(2) requires the court, in disposing of such an application, to have regard to the interests of any children and to whether there is a reasonable probability of reconciliation before the year expires.

Two details. The year runs from the entry of the certificate, not from any ceremony, which matters for a marriage registered under Chapter III. And the period was three years until 1976, when it was reduced to one in both Acts together.

Section 30: remarriage

Section 30 permits remarriage on the same footing as section 15 of the Hindu Marriage Act: once the marriage has been dissolved and either there is no right of appeal, or the time for appealing has expired without an appeal, or an appeal has been dismissed, either party may marry again.

Chapter VII: jurisdiction and procedure

Section 31: which court

Section 31(1) provides that every petition under Chapter V or Chapter VI shall be presented to the district court within whose original civil jurisdiction:

(i) the marriage was solemnized; or (ii) the respondent resides at the time of presentation; or (iii) the parties last resided together; or (iiia) in case the wife is the petitioner, where she is residing on the date of presentation; or (iv) the petitioner is residing at the time of presentation, where the respondent is then residing outside the territories to which the Act extends, or has not been heard of as being alive for seven years.

That is section 19 of the Hindu Marriage Act, clause for clause.

Section 31(2) has no counterpart in the Hindu Marriage Act and should be learned separately. Without prejudice to sub-section (1), the district court may entertain a petition by a wife domiciled in the territories to which the Act extends, for nullity of marriage or for divorce, if she is resident in those territories and has been ordinarily resident there for three years immediately preceding the petition, and the husband is not resident in those territories.

It is a provision for the wife whose husband has gone abroad and stayed there. She may sue in India on three years' ordinary residence of her own, for nullity or divorce, and for nothing else.

Section 32: the petition

Every petition under Chapter V or VI must state, as distinctly as the nature of the case permits, the facts on which the claim to relief is founded, and must also state that there is no collusion. The statements must be verified as a plaint is verified, and may at the hearing be referred to as evidence.

Note that unlike section 20 of the Hindu Marriage Act there is no exception for a nullity petition: the averment of no collusion is required in every case under this Act.

Section 33: in camera

Every proceeding under the Act shall be conducted in camera, and it is not lawful for any person to print or publish any matter in relation to it, except a judgment of the High Court or the Supreme Court printed or published with the previous permission of the Court. Contravention is punishable with fine which may extend to one thousand rupees. This is section 22 of the Hindu Marriage Act in the same words.

Section 34: the court's duty

Section 34(1) provides that in any proceeding under Chapter V or VI, whether defended or not, the court must be satisfied of the same matters as under section 23 of the Hindu Marriage Act before granting relief: that a ground exists; that where the petition is founded on adultery under section 27(1)(a) the petitioner has not been accessory to, connived at or condoned the act; that the petition is not presented or prosecuted in collusion; that there has been no unnecessary or improper delay; and that there is no other legal ground why relief should not be granted.

The section also carries the duty to attempt reconciliation and the machinery for referring the matter out, in terms corresponding to section 23(2) and 23(3) of the Hindu Marriage Act.

Section 35: relief for the respondent

In any proceeding for divorce, judicial separation or restitution, the respondent may not only oppose the relief on the ground of the petitioner's adultery, cruelty or desertion, but may make a counter-claim for any relief under the Act on that ground; and if the petitioner's adultery, cruelty or desertion is proved, the court may give the respondent the relief to which a petition on that ground would have entitled him or her. This is section 23A of the Hindu Marriage Act.

Sections 36 and 37: maintenance, and the asymmetry

Section 36: alimony pendente lite

Where in any proceeding under Chapter V or VI it appears to the district court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husband to pay her the expenses of the proceeding and weekly or monthly during the proceeding such sum as, having regard to the husband's income, seems reasonable.

The proviso, inserted by Act 49 of 2001 with effect from 24 September 2001, requires the application to be disposed of within sixty days as far as possible, as in the Hindu Marriage Act.

Section 37: permanent alimony and maintenance

Section 37(1) provides that the court may, at the time of passing any decree or at any time afterwards, on application, order that the husband shall secure to the wife for her maintenance and support, if necessary by a charge on the husband's property, such gross sum or such monthly or periodical payment for a term not exceeding her life, as, having regard to her own property, her husband's property and ability, the conduct of the parties and other circumstances of the case, seems just.

Section 37(2) allows variation, modification or rescission at the instance of either party on a change in circumstances.

Section 37(3) provides that if the court is satisfied that the wife in whose favour an order has been made has re-married or is not leading a chaste life, it may at the instance of the husband vary, modify or rescind the order as it deems just.

The asymmetry, stated plainly

The Hindu Marriage Act was made symmetrical in expression, and section 25(3) there refers to both a wife's unchastity and a husband's intercourse outside wedlock. The Special Marriage Act was not amended in the same way. So the secular Act, which is otherwise the more modern statute, is on this one point the less equal of the two. That contrast is worth a sentence in an essay on whether a uniform civil code would be an improvement, because it shows that "secular" and "equal" are not the same word.

Sections 38 to 40C: the remainder

Section 38: custody of children. In any proceeding under Chapter V or VI the district court may from time to time pass interim orders and make provisions in the decree with respect to the custody, maintenance and education of minor children, and may act after the decree and vary its orders, corresponding to section 26 of the Hindu Marriage Act.

Section 39: appeals. Decrees are appealable as decrees of the court in its original civil jurisdiction, orders under the maintenance and custody sections are appealable if not interim, there is no appeal on costs only, and the appeal must be preferred within the prescribed period.

Section 39A: enforcement. Decrees and orders are enforced as decrees and orders of the court made in its original civil jurisdiction.

Section 40: the Code of Civil Procedure. Subject to the Act and to High Court rules, all proceedings under the Act are regulated, as far as may be, by the Code of Civil Procedure 1908.

Section 40A: transfer. Where both parties have petitioned for judicial separation or divorce, in the same or different courts, the later petition is transferred to the court of the earlier and both are heard together, as under section 21A of the Hindu Marriage Act.

Section 40B: speed. Trial to be continued from day to day so far as practicable, with an endeavour to conclude within six months of service, and appeals within three months, as under section 21B.

Section 40C: documents. No document is inadmissible at the trial on the ground that it is not duly stamped or registered, as under section 21C.

Section 41: rules. The High Court may make rules regulating procedure under the Act.

Sections 40A, 40B and 40C were all inserted by the 1976 amendment, which put the two Acts into step on procedure. A student who has learned sections 21A, 21B and 21C of the Hindu Marriage Act has learned these.

A worked example

Kavita married under the Special Marriage Act in March; the certificate was entered on 20 March. In August her husband leaves India for good and stops supporting her. She wants a divorce at once, and money in the meantime.

Can she petition for divorce now? Section 29: no petition for divorce shall be presented within one year from the date of entry of the certificate, that is before 20 March next year, unless the court allows an earlier petition on the ground of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent.

Where does she file? Section 31 gives the five ordinary forums, and adds one for exactly her case: where the husband has left India, she may petition in the district court where she is residing.

What can she get in the meantime? Section 36: expenses of the proceeding and maintenance pendente lite, which under this Act is available to the wife alone.

And at the end? Section 37: permanent alimony and maintenance, again for the wife alone.

How does that compare with the Hindu Marriage Act? Sections 24 and 25 of that Act are available to either spouse. On maintenance the secular Act is the less equal of the two, which is worth saying in an essay that praises it in other respects.

Suppose she wanted him back instead. Section 22, restitution of conjugal rights, in the same words as section 9 of the Hindu Marriage Act. And if he disobeyed the decree, section 23 gives her a ground of judicial separation that the Hindu Act does not have.

Will the hearing be public? Section 33: proceedings in camera, and the same restriction on publication. And section 34 obliges the court to satisfy itself of the grounds and to attempt reconciliation before granting relief.

What it does NOT mean

Section 22 is not different from section 9 of the Hindu Marriage Act. It is that section in the same words.

Section 23 is not confined to the divorce grounds. It adds a ground the Hindu Act does not have: failure to comply with a decree for restitution.

Section 29 is not an absolute bar. Leave may be given for exceptional hardship to the petitioner or exceptional depravity on the respondent's part.

The year runs from the certificate. It runs from the date of entry of the certificate of marriage, not from any ceremony.

Section 31 does not give only the five Hindu Act forums. It adds one for a wife whose husband has left India.

Sections 36 and 37 are not the counterparts of sections 24 and 25. They run to the wife alone, whereas the Hindu Act's provisions run to either spouse, which makes the secular Act the less equal of the two on maintenance.

Quick revision

• Chapter V: s.22 restitution of conjugal rights, in the same words as s.9 of the Hindu Marriage Act; s.23 judicial separation, on any ground of divorce and, in addition, on failure to comply with a decree for restitution.
• s.29: no divorce within one year of the entry of the certificate of marriage, unless leave is given for exceptional hardship or exceptional depravity. s.30: remarriage lawful when there is no right of appeal, or the time has expired, or an appeal has been dismissed.
• Chapter VII: s.31 gives the five forums of section 19 of the Hindu Marriage Act plus one where the husband has left India; s.32 the contents of the petition; s.33 proceedings in camera; s.34 the court's duty before granting relief, including reconciliation; s.35 the decree.
• ss.36 and 37: expenses and maintenance pendente lite and permanent alimony, both for the wife alone, unlike ss.24 and 25 of the Hindu Marriage Act, which run to either spouse.
• ss.38 to 40C: custody of children; appeals; enforcement; transitional and saving provisions.

Test yourself

1. What additional ground of judicial separation does this Act have? Failure to comply with a decree for restitution of conjugal rights, under section 23, which the Hindu Marriage Act does not provide as a ground of judicial separation.

2. From what date does the one-year bar on divorce run? From the date of entry of the certificate of marriage in the Marriage Certificate Book, under section 29, and the court may allow an earlier petition on the ground of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent.

3. Where may a petition under the Act be presented? In the district court within whose ordinary original civil jurisdiction the marriage was solemnized; or the respondent resides at the time of presentation; or the parties last resided together; or the petitioner is residing at the time of presentation, where the respondent is at that time residing outside the territories to which the Act extends or has not been heard of as alive for seven years; and where the wife is the petitioner, where she is residing.

4. How do sections 36 and 37 differ from sections 24 and 25 of the Hindu Marriage Act? Sections 36 and 37 provide expenses and maintenance pendente lite and permanent alimony for the wife alone, whereas sections 24 and 25 of the Hindu Marriage Act are available to either spouse.