(V) 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 denned in the Indian Penal Code (45 0^860);
(d) has since the solemnization of the marriage treated the petitioner with cruelty; or
K[(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;
(fc) 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
(/) has been suffering from venereal disease in a communicable form, or;]
(g) .has 26[* * *] been suffering from leprosy, the disease not haying been contracted 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; 27[*]
‘^[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;]
31[(1-A) A wife may also present a petition for divorce to the district Court on the ground, —
24. Proviso to Cl. (c) omitted by Act 68 of 1976, S. 27 (w.e.f. 27-5-1976).
25. Substituted by Act 68 of 1976, S. 27, for Cls. (e) and {/) (w.e.f. 27-5-1976).
26. The words “for a -period of not less than three years immediately preceding the
presentation of the petition” omitted by Act 68 of 1976, S. 27 (w.e.f. 27-5-1976).
27. The word “or” omitted by Act 29 of 1970,5.3.
28. Inserted by Act 68 of 1976,8.27 (w.e.f. 27-5-1976).
29. Cls. (i) and (/) omitted by Act 29 of 1970, S. 3 (w.e.f. 12-8-1970).
30. The words “and by the wife on the ground that her husband has, since the solemnization of, the marriage, been guilty of rape” omitted by Act 68 of “1976, S. 27 (w.e.f. 27-5-1976).
31. Inserted by Act 68 of 1976, S. 27 (W.e.f. 27-5-1976).
(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality,
(if) 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.]
32[(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, may present a petition for divorce to the district Court on the ground — . ,
(z) that there has been no resumption or cohabitation as between the parties to the marriage for a period of one year or upwards after passing of a decree for judicial separation in a proceeding to which they were parties; or
(it) 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.]
COMMENTS
Calling somebody who is born a “sikh”, a “sikhra” repeatedly over and over again over a period of time, would amount to cruelty: Iris Paintal v. Avtar Singh Paintal A.I.R. 1988 Del.
33[27-A. Alternate relief in divorce proceedings. — In any proceeding under this Act, or a petition for dissolution of marriage by 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 for judicial separation.]
28. Divorce by mutual consent. — (1) Subject to the provisions of this Act and to the rules made there under, a petition for divorce may be presented to the district Court 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 the marriage should be dissolved.
(2) 34[On the motion of both the parlies made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months] after the said date, if the petition is not withdrawn in the meantime, the district Court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act and that the averments in the
petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of the decree.
32. Inserted by Act 29 of 1970, S. 3(w.e.f. 12-8-1970).
33. Inserted by Act68 of 1976, 9. 28 (w.e.f. 27-5-1976).
34. Substituted by Act 68 of’1976, S. 29, for “On the motion of both the parties made not earlier than one year after the date of the presentation of the petition referred to in sub section (1) and not later than two years” (w.e.f. 27-5-1976).
COMMENTS
Divorce by mutual consent cannot be obtained by having resort to S. 28 of the Special Marriage Act when marriage has neither been solemnised nor registered under the provisions of that Act but has been solemnised under the provisions of the Christian Marriage Act: Stephen Joshus v. J.S. Kapoor (1995) 58 Del.L.T. 57.
29. Restriction on petitions for divorce during first one year after marriage.—(1) No petition for divorce shall be presented to the district Court 35[unless at the date of the presentation of the petition one year has passed] since the date of entering the certificate of marriage in the Marriage Certificate Book:
Provided that the district Court may, upon application being made to it, allow a petition to be presented 36[before one year has passed] on the ground that the case is one of exceptional hardship suffered by the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the district Court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the district Court may, if it pronounces a decree, do so subject to the condition that the decree shall not have until after the 37[expiry of one year] from the date of the marriage or may dismiss the petition, without prejudice to any petition, which may be brought after the 38[expiration of the said one year] upon the same, or substantially the same facts as those proved in support of the petition so dismissed.
(2) In disposing of any application under this section for leave to present a petition for divorce before the 39[expiration of one year] from the date of the marriage, the district Court shall have regard to the interests of any children of the marriage, and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of 40[said one year].
Objects and Reasons.—In section 29, “a provision has been included restricting petitions for divorce during the first three years after marriage as, in the opinion of the Joint Committee, the parties should be given a full opportunity to make the marriage a success.”—J.C.R.
30. Remarriage of divorced persons.—Where a marriage has been dissolved by a decree of divorce, and either there is no right of appeal against the decree or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented or an appeal has been presented but has been dismissed, 41[* * * *] either party to the marriage may marry again.
35. Substituted by Act 68 of 1976, S. 30, for “unless at the date of presentation of the petition three years have passed” (w.e.f. 27-5-1976)..
36. Substituted by Act 68 of 1976, S. 30, for “three years have passed” (w.e.f. 27-5-1976).
37. Substituted by Act 68 of 1976, S. 30, for “expiry of three years” (w.e.f. 27-5-1976).
38. Substituted by Act 68 of 1976, S. 30, for “expiration of the said three years” (w.e.f. 27-5-1976).
39. Substituted by Act 68 of 1976, S. 30, for “expiration of three years” (w.e.f. 27-5-1976).
40. Substituted by Act 68 of 1976, S. 30, for “said three years” (w.e.f. 27-5-1976).
41. The words “and one year has elapsed thereafter but not sooner,” omitted by Act 68 of 1976, S. 31 (w.e.f. 27-5-1976).
CHAPTER VII JURISDICTION AND PROCEDURE
31. Court to which petition should be made.—^[(l) Every petition under Chapter V or Chapter VI shall be presented to the district Court within the local limits of whose original civil jurisdiction—
(z) the marriage was solemnized; or
(if) the respondent, at the time of the presentation of the petition, resides; or
(Hi) the parties to the marriage last resided together; or
43[(m-a) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or]
(iv) the petitioner is residing at the time of the presentation of the petition, in^a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years by those who would naturally have heard of him if he were alive.]
•A
(2) Without prejudice to any jurisdiction exercisable by the Court under sub-section (1), the district Court may, by virtue of this sub-section, entertain a petition by a wife domiciled in the territories to which this Act extends for nullity of marriage or for divorce if she is resident in the said territories and has been ordinarily resident therein for a period of three years immediately preceding the presentation of the petition and the husband is not resident in the said territories.
32. Contents and verification of petitions.—(T») Every petition under Chapter V or Chapter VI shall state, as distinctly as the nature of the case permits, the fact on which the claim to relief is founded, and shall also state
that there is no collusion between the petitioner and the other party to the marriage.
(2) The statements contained in every such petition shall be verified by the petitioner or some other competent person in the manner required by law for the verification of plaints, and may, at the hearing be referred to as
evidence.
44[33. Proceedings to be in camera and may not be printed or published.—
(1) Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relation to any-such proceeding except a judgment of the High Court or of the Supreme Court printed or published with the previous permission of the Court.
(2) If any person prints or publishes any matter in contravention of the provisions contained in sub-section (1), he shall be punishable with fine which may extend to one thousand rupees.]
“« 42. Substituted by Act 68 of 1976, S. 32, for sub-S. (1) (w.e.f. 27-5-1976).
43. Inserted by Act 50 of 2003, S. 1- (w.e.f. 23-12-2003).
44. Substituted by Act 68 of 1976, S. 33,forS. 33 (w.e.f. 27-5-1976).
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