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Inter-Religion Divorce

Adv. Anusha Singh
Adv. Anusha Singh04 Apr 2025
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What is Inter-Religion Divorce?

Inter-Religion Divorce refers to the legal dissolution of a marriage registered under the Special Marriage Act, 1954. This Act applies to marriages between individuals of different religions or those who choose to marry under a secular law instead of their personal religious laws.

A key misconception is that both spouses must belong to different religions; however, even couples of the same religion can register their marriage under this Act for additional legal protection. Like Hindu Divorce, inter-religion divorce also addresses matters like child custody, financial support (alimony), and property division.

When Can Inter-Religion Divorce Be Used? 

Divorce under the Special Marriage Act applies when: 

  • One partner leaves or refuses to live together. 
  • A spouse is abusive, commits adultery, or causes mental distress. 
  • Both partners mutually agree to end the marriage. 
  • Financial or custody disputes arise post-separation. 

This law provides a structured legal remedy for those in inter-religious or secular marriages. 

Reasons/Grounds for Divorce

Under Section 27 of the Special Marriage Act, specific grounds allow a spouse to seek divorce. These include:

Adultery (Section 27(1)(a))

If one spouse had voluntary sexual intercourse with someone other than their spouse after the marriage, the other spouse can file for divorce.

Desertion (Section 27(1)(b))

If a spouse deserts the petitioner for a continuous period of at least two years before filing the petition, divorce can be granted.

Imprisonment for Seven Years or More (Section 27(1)(c))

If one spouse is sentenced to imprisonment for seven years or more, the other can file for divorce.

Cruelty (Section 27(1)(d))

If a spouse treats the petitioner with cruelty, either physically or mentally, divorce can be sought.

Mental Disorder (Section 27(1)(e))

If a spouse has an incurable mental disorder that makes it unreasonable to continue the marriage, divorce can be granted.

Venereal Disease (Section 27(1)(f))

If a spouse suffers from a contagious venereal disease (STD/STI) in a communicable form, the other spouse can seek divorce.

Presumption of Death (Section 27(1)(h))

If a spouse has been missing for seven years or more, the other spouse can file for divorce based on the presumption that they are no longer alive.

Process of Filing Divorce Under the Special Marriage Act, 1954

Mutual Consent Divorce

Contested Divorce

Mutual Consent Divorce (Section - 28) 

1. Both spouses must jointly file a petition in the family court stating: 

  • They have lived separately for at least one year. 
  • They cannot reconcile and wish to divorce. 
  • They have settled issues related to alimony, child custody, and property. 

2. The court grants a 6-month period to reconsider the decision. In exceptional cases, this period can be waived by the court. During this time, they might suggest counseling. If you’re sure, you can ask to skip this wait in some cases.   

3. After the duration, if both spouses still agree to divorce after 6 months, they appear before the judge. The court reviews the terms and issues a final divorce decree. 

4. You’ll need documents like your marriage proof (photos, pandit records), ID proofs, and a written agreement on custody or alimony. 

Contested Divorce (Section -27)

1. One spouse files a petition in family court seeking divorce (petitioner). The petition must mention valid legal grounds and thus explaining the reasons (e.g., cruelty, adultery, desertion, mental illness). With details and evidence – like witness, photos, etc. 

2. The court sends a legal notice to the other spouse (respondent) to appear and present their defense. 

3. The respondent files a reply, either contesting or agreeing to the claims. Both sides submit supporting documents like medical records, witness statements, messages, or financial documents. The court holds hearings to examine the evidence and arguments. Mediation may be suggested to resolve disputes amicably. 

4. After reviewing the case, If the judge finds valid grounds, they grant a divorce. If the case is weak, the petition may be rejected. 

Effects of Divorce Under the Special Marriage Act

  1. Emotional Impact: Separation can be stressful but also a relief in abusive marriages.
  2. Financial Adjustments: The higher-earning spouse may need to provide alimony to the financially dependent partner.
  3. Child Custody Issues: Courts decide custody based on the child's welfare.
  4. Social Challenges: While legal, inter-religious divorces can face social stigma in conservative communities.

Where to File for Divorce? 

A divorce petition can be filed in the family or district court where: 

  • The couple last lived together. 
  • The marriage was registered. 
  • The wife currently resides. 

Time & Cost of Divorce under Special Marriage Act

Divorce Type

Approximate Time

Legal Costs (₹)

Mutual Consent

6 months – 1.5 years

₹30,000 – ₹1,00,000

Contested

2 – 5 years

₹50,000 – ₹5,00,000

Factors Affecting Divorce’s Cost

  • Lawyer’s fees
  • Court charges
  • Length of litigation

Common Challenges & Solutions

Challenge

Solution

Delay Tactics – One spouse intentionally delays hearings.

Hire a skilled lawyer.

False Allegations – Dowry, cruelty, or adultery accusations.

Gather evidence & fight legally.

Child Custody Disputes – Custody battles prolong divorce.

Mediation is recommended.

FAQs Related to Staff Augmentation Agreement

Can a spouse remarry immediately after divorce?

Yes, once the court grants a divorce decree, remarriage is legal.

Can a husband get alimony from his wife?

Yes, if the husband is financially dependent, he can claim maintenance.

What if one spouse does not attend court hearings?

If absent without valid reason, the court may proceed ex-parte and grant divorce.

Is the wife entitled to 50% of the husband's property?

No automatic 50% division; property rights depend on ownership and financial contributions.

Can a foreign national get a divorce under SMA (Special Marriage Act)?

Yes, if the marriage was registered under SMA, they can file for divorce in India.

Special Marriage Divorce Laws in India

The Special Marriage Act, 1954 is a secular law that allows marriage and divorce irrespective of religion, caste, or creed. It governs inter-faith and civil marriages and provides comprehensive legal provisions for divorce, maintenance, and child custody. 

Knowing these laws helps ensure that rights are protected and both parties are treated fairly during marital disputes.

Special Marriage Act, 1954

Protection of Women from Domestic Violence Act, 2005

Guardians and Wards Act, 1890

Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)

Applicable to: All Indian citizens, regardless of religion, who marry under this Act. 

Key Provisions

  • Section 27: It lists the grounds for divorce, including adultery, cruelty, desertion, mental disorder, communicable disease, renunciation of the world, and not being heard alive for seven years. 
  • Section 28: It provides for divorce by mutual consent with a one-year separation requirement. 
  • Section 36: Allows the wife to claim interim maintenance and legal expenses during the proceedings. 
  • Section 37: It provides for permanent alimony and maintenance post-divorce. 
  • Section 38: Covers the custody, education, and maintenance of children from the marriage. 

Purpose: Offers legal protection to women facing domestic abuse and ensures rights such as shared residence, maintenance, and compensation. 

Important Sections

  • Section 17: Grants a woman the right to reside in the shared household. 
  • Sections 18 to 22: It provides relief such as protection orders, residence orders, monetary relief, custody, and compensation. 

Purpose: Governs custody and guardianship of minor children, especially in interfaith or civil marriages. 

Importance in Divorce Cases: Applied in custody matters to ensure the welfare and best interests of the child.

Key Provisions Relevant to Divorce

Section 144: Permits a divorced spouse to claim maintenance. Section 482: Provides anticipatory bail in false criminal cases. Section 528: Allows for quashing of false FIRs to avoid misuse of legal procedures.

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