Special Marriage Act, 1954 - Ss. 27 & 28 - Divorce on Mutual Consent - A joint application under Section 28(2) of the Act of 1954 is maintainable if the same is filed in a pending proceeding

Rajkumar Sureen vs Smt Manju Tirki

Madhya Pradesh HC, Jabalpur Bench

20/03/2018

Civil Revision No.31/2018

About/from the judgment:

Whether Joint Application for Divorce is Maintainable if the same is filed in a Pending Proceeding?

 

Special Marriage Act, 1954 - Ss. 27 & 28 - Divorce on Mutual Consent - A joint application under Section 28(2) of the Act of 1954 is maintainable if the same is filed in a pending proceeding.

Held:- It is nowhere laid down that in order to prefer an application under Section 28(2), the applicant was required to withdraw his earlier application and thereafter file a joint petition under Section 28 of the Act of 1954. No such statutory provision could be brought to the notice of this Court which makes it obligatory for the parties to withdraw the pending application in order to file a fresh application under Section 28 of the Act of 1954. Putting it differently, it cannot be said that a joint application under Section 28(2) of the Act of 1954 is not maintainable if the same is filed in a pending proceeding. The intention of Legislature in bringing sub-section (2) of Section 28 in the statute book is to facilitate the parties to cut short the litigation and get divorce with mutual consent when other essential conditions are satisfied. This will provide them chance to settle in life. Thus question of filing such application in the pending proceeding is a procedural aspect. There is no substantive statutory prohibition in filing application under Section 28(2) in the same proceeding. [Paras 10 &11]

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