Petition for divorce under Sec 27 of the Special Marriage Act can be filed only if the marriage is solemnised under the provisions of that Act

Petition for divorce under Sec 27 of the Special Marriage Act can be filed only if the marriage is solemnised under the provisions of that Act

Kiran Kumar Vs Bini Marim Chandi

Kerala HC

11/10/2018

Mat. Appeal. No. 1017 of 2017

About/from the judgment:

To marry or not to marry and if so whom, may well be a private affair. But, the freedom to break a matrimonial tie is not.
(N.G. Dastane v. S. Dastane: (1975) 2 SCC 326)

The High Court while addressing the instant petition highlighted the observation that:

a petition for divorce under Section 27 of the Special Marriage Act, 1954 can be filed only when the marriage is solemnised or deemed to be solemnised under the provisions of that Act.

Husband in the instant case has challenged the divorce decree passed by the Family Court filed by the wife.

Section 27(1)(d) of the Special Marriage Act, 1954 provides that, subject to the provisions of that Act and the Rules made thereunder, a petition for divorce may be presented to the District Court either by the husband or the wife on the ground that the respondent has treated the petitioner with cruelty.

Petitioner and respondent had solemnised their marriage under the provisions of the Special Marriage Act, 1954.

Primary allegation against the respondent was that he was always suspicious of the moral character of the petitioner and that he always used to make accusations of infidelity and immorality against her.

Highlight in the petition
Imputations made by the respondent on the character of the petitioner, especially the accusation of illicit relationship by her with her colleagues in the profession.

Whether the conduct of the respondent imputing infidelity and immorality on the petitioner amounts to inflicting mental cruelty?

Mental cruelty is that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other (See V. Bhagat v. D. Bhagat : (1994) 1 SCC 337)

Bench stated that to constitute cruelty, the conduct complained of must be something more serious that ‘ordinary wear and tear of married life’.

In the instant case, it was submitted that the respondent had publicly humiliated the petitioner by telling two strangers that his wife was sleeping with another man on the previous night.

Court noted that it was proved that the respondent had informed the colleagues of the petitioner in the hospital that she was having an affair with another doctor. Thus the respondent made the petitioner a subject of scandal in the hospital where she was working.

Due to the above-stated petitioner had to resign from the hospital on account of shame.

The above-discussed incidents proved that the respondent was in the habit of imputing infidelity and immorality on the part of his wife.

Injury to reputation is an important consideration in dealing with the question of cruelty.

In Raj v. Kavita : (2017) 14 SCC 194, Supreme Court held that, the conduct of a spouse levelling false accusations against the other spouse which would have the effect of lowering his/her reputation in the eyes of his/her peers, would be an act of cruelty.

In Narendra v. Meena: (2016) 9 SC 455, Supreme Court held that, levelling of absolutely false allegations and that too with regard to an extra-marital life, is quite serious and that can surely be a cause for mental cruelty.

With regard to the above discussions, it was observed that

Unending accusations and imputations can cause more pain and misery than physical beating.

Legal Cruelty
Bench expressed that, in a delicate human relationship like matrimony, one has to see the probabilities of the case. One has to see what are the probabilities in a case and legal cruelty has to be found out, not merely as a matter of fact, but as the effect on the mind of the complainant spouse due to the acts or omissions of the other.

Court further in line with the above discussions also stated that

Any woman with reasonable self-respect and power of endurance would find it difficult to live with such a suspicious and taunting husband.

Hence, the lower Court’s conclusion that the petitioner was treated with cruelty by the respondent and she was entitled to get divorce decree in light of the same was correct.

Special Marriage Act, 1954
Appellant’s Counsel submitted that since the marriage was solemnised in a church, the marriage solemnised under the provisions of Special Marriage Act, 1954 would not prevail and the petition for divorce filed under Section 27 of the said Act would not be maintainable.

Hence, the petition for divorce should have been filed under Section 10 of the Divorce Act, 1869.

The Indian Christian Marriage Act, 1872 is not applicable to territories which were comprised in the erstwhile State of Travancore – Cochin existed before the 1st November 1956.

The marriage between the parties in the instant case had taken place in an area comprised in the erstwhile Travancore State.

Therefore, the marriage between the parties in the instant case was not governed by the provisions of the above-mentioned statute.

High Court observed that when the marriage is not governed by any statutory law, the validity of the marriage has to be decided in accordance with the personal law applicable.

Further, it followed that there was no valid marriage solemnised between the parties in the church. If that be so, the marriage solemnised as per the provisions of the Special Marriage Act, 1954 is the valid marriage that existed between the parties.

Adding to the above, bench stated that had the marriage between the parties conducted in the church been valid, it was not necessary for the parties to solemnise the marriage under Chapter II of the Special Marriage Act, 1954.

The very fact that the marriage between the parties was solemnised by them under the provisions of Chapter II of the Special Marriage Act, 1954 would indicate that the parties were also aware and conscious of the fact that the marriage between them conducted in the church was not valid.

In Stephen Joshus v. J.D. Kapoor: 58 (1995) DLT 57,

the parties were Christians who had been married to each other under the provisions of the Indian Christian Marriage Act, 1872. A joint petition was preferred by them under Section 28 of the Special Marriage Act, 1954 seeking the dissolution of marriage by a decree of divorce by mutual consent.

The trial court dismissed the petition on the ground that the marriage was solemnised under the Christian Marriage Act whereas divorce had been sought under the Special Marriage Act and therefore, the petition was not maintainable.

The Delhi High Court held that sub-section (2) of Section 28 of the Special Marriage Act confers jurisdiction upon the District Court to grant a decree, declaring the marriage to be dissolved only on the satisfaction that the marriage has been solemnised under that Act and therefore, upheld the dismissal of the petition by the lower court.

In Aulvin v. Chandrawati: 1974 SCC OnLine All 285,

the husband filed a petition for divorce against the wife on the ground of desertion under Section 27 of the Special Marriage Act. The parties were admittedly Christians and they were married in a Christian church according to Christian rites.

The wife contended that since the parties were Christians and had been married under the provisions of the Indian Christian Marriage Act, 1872, the petition for divorce should have been filed under Section 10 of the Divorce Act, 1869 and the petition filed under Section 27 of the Special Marriage Act was not maintainable.

The Allahabad High Court held that the petition for divorce presented under Section 27 of the Special Marriage Act, 1954 was not maintainable since the marriage between the parties was neither solemnised nor registered under that Act.

Hence, the Court held that the marriage between the petitioner and respondent in the church was not valid and marriage solemnised under the provisions of the Special Marriage Act, 1954 would prevail over it. If only the marriage conducted between the parties in church was valid, the solemnisation of marriage under Chapter II of the Special Marriage Act, 1954 would have been an exercise in futility.

Therefore, the divorce petition under Section 27 of the Special Marriage Act, 1954 would not be maintainable.

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