Divorce under the Special Marriage Act, 1954 in Delhi NCR

Who is covered by the Special Marriage Act?

The divorce provisions of the Special Marriage Act apply to:

• couples who solemnised their marriage before a Marriage Officer under the Act, after giving the required notice (in Delhi, before the Marriage Officer of the concerned revenue district);
• couples who married under a personal law or custom and later registered their marriage under Section 15 of the Act, which makes the marriage one deemed to be solemnised under the Act; and
• in certain situations, couples whose marriage is governed by the Foreign Marriage Act, 1969, which applies the Special Marriage Act’s divorce provisions to marriages solemnised under it.

It is important to check which law your marriage falls under. A couple who married in a religious ceremony and then registered it under Section 8 of the Hindu Marriage Act (or under Delhi’s compulsory marriage registration order) has a Hindu Marriage Act marriage, not a Special Marriage Act one. The marriage certificate usually makes the position clear.

Grounds for contested divorce under Section 27

Under Section 27(1), either spouse may seek divorce on the ground that the other spouse has, after the marriage:

• had voluntary sexual intercourse with any person other than the spouse (adultery);
• deserted the petitioner for a continuous period of at least two years immediately before the petition;
• been undergoing a sentence of imprisonment for seven years or more for an offence under the penal law (the Indian Penal Code, now the Bharatiya Nyaya Sanhita, 2023);
• treated the petitioner with cruelty;
• been incurably of unsound mind, or suffering continuously or intermittently from mental disorder of such a kind that the petitioner cannot reasonably be expected to live with them;
• been suffering from venereal disease in a communicable form; or
• not been heard of as being alive for seven years or more.

Imprisonment for seven years or more is a ground specific to the Special Marriage Act; there is no equivalent in the Hindu Marriage Act. Conversion and renunciation, which are grounds under the Hindu Marriage Act, do not appear in Section 27, because the Special Marriage Act does not depend on the religion of the spouses.

Section 27(1A) gives the wife two additional grounds: that the husband has been guilty of rape, sodomy or bestiality since the marriage; and that a maintenance order has been passed in her favour (under the Hindu Adoptions and Maintenance Act, 1956, or Section 125 of the old Code of Criminal Procedure, now Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023) and cohabitation has not resumed for one year or more after the order.

Under Section 27(2), either spouse may also seek divorce where there has been no resumption of cohabitation for one year or more after a decree of judicial separation, or no restitution of conjugal rights for one year or more after such a decree.

Mutual consent divorce under Section 28

Section 28 mirrors Section 13B of the Hindu Marriage Act. A joint petition may be filed where the spouses:

1. have been living separately for a period of one year or more;
2. have not been able to live together; and
3. have mutually agreed that the marriage should be dissolved.

After the joint petition is presented and the first motion recorded, the spouses must move the court again not earlier than six months and not later than eighteen months after presentation. If the court is satisfied, after hearing the parties and making such inquiry as it thinks fit, that the averments are true, it passes a decree of divorce.

Family Courts have applied the Supreme Court’s reasoning in Amardeep Singh v. Harveen Kaur (2017), decided under the Hindu Marriage Act, to consider waiving the six-month period under Section 28 where the conditions laid down in that judgment are met. The detailed steps are the same as those described on our mutual consent divorce page.

The one-year bar under Section 29

Section 29 says that no petition for divorce may be presented unless one year has passed since the date on which the marriage certificate was entered in the Marriage Certificate Book. 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. If the court later finds that permission was obtained by misrepresentation, it may dismiss the petition or make the decree effective only after the one-year period.

Which court, and where?

Section 31 of the Special Marriage Act says a petition may be presented to the district court within whose local limits:

• the marriage was solemnised;
• the respondent resides at the time of presentation of the petition;
• the husband and wife last resided together; or
• the petitioner is residing, where the petitioner is the wife.

There is also provision for filing where the respondent lives outside India or has not been heard of for seven years. In Delhi NCR, these cases are heard by the Family Courts established for the relevant district. See our pages on Delhi, Noida, Gurugram, Ghaziabad and Faridabad for local details.

Alimony, maintenance and custody under the Act

The Special Marriage Act has its own provisions for financial relief and children:

• Section 36 allows the wife to claim maintenance and litigation expenses while a matrimonial case is pending, where she has no independent income sufficient for her support.
• Section 37 allows the court, at the time of the decree or later, to order the husband to pay the wife permanent alimony, by way of a lump sum or periodic payments, having regard to his property and income, her own property and income, and the conduct of the parties. The order may be varied if circumstances change.
• Section 38 allows the court to make orders about the custody, maintenance and education of minor children, consistent with their wishes wherever possible.

Unlike the Hindu Marriage Act, where Sections 24 and 25 are available to either spouse, Sections 36 and 37 of the Special Marriage Act are framed in favour of the wife. Other remedies, such as maintenance under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 and reliefs under the Protection of Women from Domestic Violence Act, 2005, are available regardless of the law under which the couple married. Our pages on alimony and maintenance and child custody explain how courts approach these questions in practice.

Practical points for Special Marriage Act couples

• Keep the marriage certificate handy. The certificate issued by the Marriage Officer, with its entry in the Marriage Certificate Book, is the primary proof of the marriage and of the date from which the one-year bar is counted.
• Succession and property. The Special Marriage Act has specific provisions on succession for certain couples. Property questions on separation should be looked at carefully, particularly where assets are held jointly or in different family names.
• Religion of children. Questions about a child’s religious upbringing sometimes arise in interfaith marriages. Courts decide custody and upbringing on the basis of the child’s welfare.
• Spouses abroad. Many Special Marriage Act couples include a spouse who lives or works outside India. Our NRI divorce page explains how foreign residence affects the process.

For a contested case, the process of pleadings, mediation, evidence and arguments is broadly the same as that described on our contested divorce page. For quick answers to common questions, see our divorce FAQ.

Last reviewed: September 2026. This page is general information about the law and is not legal advice. Laws, rules and court practice change; please take advice on your specific facts.