Section 28 of Special Marriage Act, 1954 is
applicable [see: section 18 of Foreign Marriage Act, 1939]
Petition for divorce by mutual consent can be
filed by both parties to marriage together, 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.
The petition will be presented in district
court.
If a motion of both the parties is moved after 6
months of presenting the petition and before the expiry of 18 months from the
said date [if petition is not withdrawn in meantime], the district court on
being satisfied that
(i) that a marriage has been
solemnized under this Act, and
(ii) that the averments in
the petition are true,
pass a decree declaring the marriage to be
dissolved with effect from the date of the decree.
Where petition can be presented
As per
section 18 of the Foreign Marriage Act, 1969, the petition shall be presented
to the district court within the local limits of whose ordinary civil
jurisdiction -
(a) the
respondent is residing at the time of the presentation of the petition ; or
(b)
the husband and wife last resided together; or
(c) the
petitioner is residing at the time of the presentation of the petition,
provided that the respondent is at that time residing outside India.
Meaning of
District Court
The term “district
court” has the same meaning as in the Special Marriage Act, 1954.
As per section 2(e) of Special Marriage Act, 1954 the "District Court" means:
(i) in any area for which there is a City Civil
Court, and in any other area, the principal Civil Court of original
jurisdiction is situated
(ii) It includes any other Civil Court, which
may be specified by the State Government by notification in the Official
Gazette as having jurisdiction in respect of the matters dealt with in this
Act:
Additional
Condition
As per
section 18(3)(a) Court will grant relief, if
(i) the
parties to the marriage are domiciled in India at the time of the presentation
of the petition; or
(ii) the
petitioner, being the wife, was domiciled in India immediately before the
marriage and has been living in India for a period of not less than three years
immediately preceding the presentation of the petition;
As per section 18 (3)(d) the
petitioner must be residing in India at the time of presenting the petition.
Court
cannot grant any relief, if in relation to any marriage of foreign country not
solemnized under it, if
the grant of relief in respect of such marriage (whether on any of the grounds
specified in the Special Marriage Act, 1954, (45 of 1954) or otherwise) is
provided for under any other law for the time being in force.
Also see: