A significant share of Delhi's marriages are solemnised not under personal law but under the Special Marriage Act, 1954 — the statute of court marriages and inter-faith unions. When such a marriage breaks down consensually, the exit route is Section 28 of the same Act: divorce by mutual consent. The architecture mirrors Section 13B of the Hindu Marriage Act — one year of living separately, a joint first motion, an interregnum for reflection, and a joint second motion — but the governing statute, forum practice and documentation differ in ways that matter. This explainer walks through eligibility, procedure, timelines and the recurring practical questions.
The statutory scheme
Section 28 of the Special Marriage Act, 1954 provides that both parties to a marriage may together present a petition for divorce to the district court 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. Not earlier than six months, and not later than eighteen months, after presentation, the parties move the court again; if the petition is not withdrawn in the meantime and the court is satisfied — after such inquiry as it thinks fit — that the marriage was solemnised under the Act and the averments are true, it passes a decree of divorce effective from the date of the decree.
The process, step by step
How the SMA route compares with Section 13B HMA
| Feature | Section 13B, HMA 1955 | Section 28, SMA 1954 |
|---|---|---|
| Who can use it | Spouses married by Hindu rites (or whose marriage the HMA governs) | Spouses whose marriage was solemnised (or registered) under the SMA |
| Separation requirement | One year or more of living separately | One year or more of living separately |
| Two motions | Yes — 6 to 18 months apart | Yes — 6 to 18 months apart |
| Consent | Must subsist until decree; withdrawable | Must subsist until decree; withdrawable |
| Additional condition | — | Court must be satisfied the marriage was solemnised under the Act |
The practical convergence is deliberate: Parliament intended consensual dissolution to work identically across the secular and Hindu statutes. The main SMA-specific discipline is documentary — the court verifies the marriage certificate issued under the Act, so the original certificate and the Marriage Officer's record anchor the petition.
Recurring practical questions
Waiver of the six-month interval. The interval in the analogous HMA provision has been held directory rather than mandatory, allowing courts to waive it where the marriage is dead, all disputes are settled and further waiting would only prolong agony. Family Courts in Delhi entertain waiver applications in SMA matters on parallel reasoning, examining the length of separation, the completeness of the settlement and the futility of reconciliation. Parties should, however, treat waiver as an exception to be justified, not an entitlement.
Jurisdiction. The petition is presented to the district court — in Delhi, the Family Court — within whose jurisdiction the marriage was solemnised, the respondent resides, the parties last resided together, or (in defined circumstances) the wife resides.
Terms once recorded are enforceable. Settlement terms incorporated in the decree — payment schedules, custody arrangements, withdrawal of proceedings — are enforceable as part of the decree, and default invites execution. Draft them with the same precision as any commercial settlement: amounts, dates, mode of payment, and the sequence of compliance against each motion.
This explainer is general information about the statutory procedure, not advice on any individual case. Settlement structures, waiver prospects and timelines vary with the facts and the court concerned.
Frequently Asked Questions
Who must use the Special Marriage Act for divorce?
Couples whose marriage was solemnised under the SMA — typically court marriages and inter-faith marriages — seek matrimonial relief under that Act. A marriage solemnised under personal law but registered under a state registration law is a different situation, and the governing statute should be identified before filing.
What are the conditions for a Section 28 petition?
The spouses must have been living separately for one year or more, must not have been able to live together, and must mutually agree that the marriage should be dissolved. "Living separately" concerns the absence of marital cohabitation, and courts have accepted that spouses under one roof can be living separately in this sense.
What is the timeline between the two motions?
The second motion may be moved not earlier than six months after the first and not later than eighteen months. The six-month interval is a period for reflection; the outer limit of eighteen months keeps the process from lapsing into indefinite limbo.
Can either spouse withdraw consent midway?
Yes. Consent must subsist until the decree. Either party may withdraw before the second motion is allowed, and the court cannot dissolve the marriage by mutual consent without the free, continuing consent of both spouses at both stages.