Chapter 6: The Special Marriage Act, 1954

CHAPTER VII: JURISDICTION AND PROCEDURE

Section 31: Court to which petition should be made

This section is all about “jurisdiction.” You cannot file a case for separation, nullity, or divorce in just any court; you must file it in a court that has the legal authority to hear it.

• Section 31, Sub-section (1): “Every petition under Chapter V or Chapter VI shall be presented to the district court within the local limits of whose original civil jurisdiction—”
  • What it means (in simple English): Your case must be filed at the main “district court” (the principal civil court of an area). You have several options for which district court you can go to:
  • (i) “the marriage was solemnized;”
    • Simple English: You can file your case in the district where your marriage was registered.
    • Real-world example: You live in Delhi, but you got married at the Marriage Officer’s office in Chandigarh. You have the legal right to file your divorce case in the Chandigarh district court, even if you don’t live there anymore.
  • (ii) “the respondent, at the time of the presentation of the petition resides;”
    • Simple English: You can file where your spouse (the person you are filing against, called the “respondent”) is currently living.
    • Real-world example: You live in Mumbai. Your husband (the respondent) has left you and now lives in Bangalore. You can travel to Bangalore and file the case in the Bangalore district court.
  • (iii) “the parties to the marriage last resided together;”
    • Simple English: You can file in the district where you and your spouse had your last marital home. This is a very common option.
    • Real-world example: A couple lives together in a rented apartment in Pune. The wife leaves due to a dispute and moves to her parents’ house in Nagpur. The husband stays in Pune. The wife can file the case in the Pune district court because that is where they “last resided together.”
  • (iiia) “in case the wife is the petitioner, where she is residing on the date of presentation of the petition;”
    • Simple English: This is a special and powerful provision added to help wives. If the wife is the one filing the case (the “petitioner”), she can file it in the district where she is currently living, regardless of where her husband is or where they last lived.
    • Real-world example: Using the same example, the wife who left her marital home in Pune and is now living with her parents in Nagpur can file the divorce case from Nagpur. She does not have to travel back to Pune. This saves her from the hardship and expense of pursuing the case in a different city.
  • (iv) “the petitioner is residing… in a case where the respondent is… residing outside the territories… or has not been heard of as being alive for a period of seven years…”
    • Simple English: You can file in the district where you (the “petitioner”) live, if your spouse is (a) living in a foreign country, or (b) has been missing for 7+ years (the ground for divorce under Section 27(h)).
    • Real-world example: A husband lives in Kolkata. His wife (the respondent) moved to London two years ago and refuses to return. He can file for divorce in the Kolkata district court.
• Section 31, Sub-section (2): “Without prejudice… the district court may… entertain a petition by a wife… if she is resident in the said territories and has been ordinarily resident therein for a period of three years… and the husband is not resident…”
  • What it means (in simple English): This is another special rule for a wife whose husband is not a resident of India. She can file a case in India (for nullity or divorce) if she has been living in India for at least three years immediately before filing the case, even if her husband is not in India.
  • Real-world example: An Indian woman marries a Canadian man under the SMA. They live in Canada for 5 years. The marriage fails, and she returns to her parents’ home in India. After living in India for 3 continuous years, she can file for divorce in her local district court, even if her husband is still in Canada and has no connection to that district.

Section 32: Contents and verification of petitions

This section explains what your legal petition must contain.

• Section 32, Sub-section (1): “…Every petition… shall state… the facts on which the claim to relief is founded, and shall also state that there is no collusion between, the petitioner and the other party…”
  • What it means (in simple English): Your petition (the formal legal document) must do two things:
    1. State the Facts: You must clearly lay out all the facts of your case (e.g., if claiming cruelty, you must describe the incidents of cruelty).
    2. “No Collusion” Clause: You must include a legal declaration that you and your spouse have not secretly teamed up to fake a case or lie to the court. “Collusion” means tricking the court.
  • Real-world example: You can’t just file a petition that says, “My husband was cruel.” You must write, “On July 10, 2024, the respondent treated the petitioner with cruelty by…” etc. At the end, you must add a statement like, “The petitioner declares that there is no collusion or connivance between the parties in filing this petition.”
• Section 32, Sub-section (2): “The statements contained in every such petition shall be verified… in the manner required by law for the verification of plaints, and may, at the hearing, be referred to as evidence.”
  • What it means (in simple English): You must sign an oath (an “affidavit”) at the end of your petition, swearing that everything you’ve written is true to the best of your knowledge. This makes your petition a formal, sworn statement, which the court can use as part of your evidence.
  • Real-world example: At the bottom of the document, you will sign a paragraph that starts, “I, [Your Name], the petitioner, do hereby verify that the contents of paragraphs 1-10 are true to my personal knowledge…” This is then stamped by a notary or court official.

Section 33: Proceedings to be in camera and may not be printed or published

This section protects your privacy.

• Section 33, Sub-section (1): “Every proceeding under this Act shall be conducted in camera and it shall not be lawful for any person to print or publish any matter in relation to any such proceeding except a judgment of the High Court or of the Supreme Court…”
  • What it means (in simple English): All family court cases under this Act (divorce, nullity, etc.) are private. They must be held “in camera,” which means in a closed courtroom. The public and the press are not allowed to enter or listen.
  • It is also illegal for anyone (like a newspaper, TV channel, or blogger) to publish any details about what is happening in the case.
  • Exception: The only thing that can be published is the final legal judgment if the case reaches a High Court or the Supreme Court, and only with the court’s permission.
  • Real-world example: Two famous actors are getting a divorce. Reporters can wait outside the courthouse, but they are not allowed inside the courtroom to hear the private details of their marriage. If a newspaper publishes details of the testimony, it is violating this section.
• Section 33, Sub-section (2): “If any person prints or publishes any matter in contravention… he shall be punishable with fine which may extend to one thousand rupees.”
  • What it means (in simple English): If that newspaper or blogger publishes the private details, they can be taken to court and fined up to ₹1,000 for breaking the privacy rule.

Section 34: Duty of court in passing decrees

This section is a checklist for the judge. It tells the judge what they must confirm before they are allowed to grant a divorce or other relief.

• Section 34, Sub-section (1): “…if the court is satisfied that,– …then, and in such a case, but not otherwise, the court shall decree such relief…”
  • What it means (in simple English): The judge cannot just grant your petition. They must first be 100% satisfied that all of the following conditions are true. If even one is not true, the judge must refuse the divorce.
  • (a) “any of the grounds for granting relief exists;”
    • Simple English: You have actually proven your case. You provided enough evidence (witness testimony, documents, etc.) to show that the cruelty, desertion, or adultery actually happened.
  • (b) “[where… founded on… sexual intercourse]… petitioner has not in any manner been accessory to or connived at or condoned the act… or, where the ground… is cruelty, the petitioner has not in any manner condoned the cruelty;”
    • Simple English: You didn’t “condone” (i.e., forgive and go back to a normal marital life with) the wrongful act. If you “condone” it, you lose the right to use it for divorce.
    • Real-world example: A wife discovers her husband’s adultery. She is angry, but they talk, she forgives him, and they resume their normal sexual relationship for six months. Later, they fight again. She cannot now file for divorce based on that old act of adultery, because the law considers it “condoned” (forgiven).
  • (c) “when divorce is sought on the ground of mutual consent, such consent has not been obtained by force, fraud or undue influence;”
    • Simple English: In a mutual consent case, the judge must be sure both parties are agreeing freely. The judge must check that one person isn’t being blackmailed, threatened, or tricked into signing the petition.
    • Real-world example: In court, a judge asks the wife in a mutual consent case, “Do you truly agree to this divorce?” If she hesitates and says, “He threatened to take my children if I didn’t sign,” the judge will find the consent was obtained by “force” and will refuse to grant the divorce.
  • (d) “the petition is not presented or prosecuted in collusion with the respondent;”
    • Simple English: This confirms the “no collusion” rule from Section 32. The judge must be satisfied the couple isn’t faking a story (like a fake adultery claim) just to get a quick divorce.
  • (e) “there has not been any unnecessary or improper delay in instituting the proceedings;”
    • Simple English: You didn’t wait an unreasonably long time to file your case. If you did, it suggests you weren’t actually bothered by the “offense.”
    • Real-world example: A husband discovers an act of cruelty in 2015. He continues to live with his wife. In 2025, ten years later, he files for divorce based on that 2015 incident. The judge will likely dismiss the case due to “unnecessary delay,” ruling that he must have forgiven it long ago.
  • (f) “there is no other legal ground why the relief should not be granted;”
    • Simple English: A final catch-all, meaning the judge is sure there are no other legal technicalities that would block the divorce (e.g., the court has the correct jurisdiction, etc.).
• Section 34, Sub-section (2): “Before proceeding… it shall be the duty of the court… to make every endeavour to bring about a reconciliation between the parties…”
  • What it means (in simple English): In every case, the judge’s first duty is to try and save the marriage. Before hearing evidence, the judge must try to get the couple to reconcile.
  • Proviso: The judge does not have to attempt this if the case is based on grounds where reconciliation is impossible or pointless (e.g., the spouse is in jail for 7+ years, has an incurable mental disorder, has been missing for 7+ years, etc.).
  • Real-world example: In a cruelty case, before the trial begins, the judge will often call the husband and wife into their private chambers (without lawyers) and ask them, “Is there any chance you can work this out? Have you considered counseling?”
• Section 34, Sub-section (3): “For the purpose of aiding… reconciliation, the court may… adjourn the proceedings for a reasonable period not exceeding fifteen days and refer the matter to any person… with directions to report to the court…”
  • What it means (in simple English): To help with the reconciliation (from sub-section 2), the judge has the power to pause the case for up to 15 days and order the couple to see a mediator or marriage counselor. That professional will then submit a report to the judge stating whether reconciliation is possible.
  • Real-world example: The judge in the previous example says, “I am adjourning this case for 15 days. I am directing both of you to attend a session with the court’s marriage counselor, who will report back to me.”
• Section 34, Sub-section (4): “In every case where a marriage is dissolved… the court… shall give a copy thereof free of cost to each of the parties.”
  • What it means (in simple English): When your divorce is finalized, the court must provide you and your ex-spouse with a copy of the final divorce order (the “decree”) for free.

Section 35: Relief for respondent in divorce and other proceedings

This section is about the “counter-claim.”

• Section 35 (Main Clause): “In any proceeding for divorce or judicial separation… the respondent may not only oppose the relief sought… but also make a counter-claim for any relief under this Act… and if the petitioner’s adultery, cruelty or desertion is proved, the court may give to the respondent any relief…”
  • What it means (in simple English): This is a very important right. If your spouse files for divorce against you (making you the “respondent”), you don’t just have to defend yourself. You can file your own claim back at them, all within the same court case.
  • Real-world example:
    1. A wife files for divorce, claiming her husband (the respondent) is “cruel.”
    2. The husband files his reply. In it, he (1) denies he was cruel, and (2) makes a “counter-claim” that she (the petitioner) is the one who “deserted” him.
    3. The court hears evidence from both sides.
    4. The judge may decide the wife failed to prove her cruelty claim, but the husband succeeded in proving his desertion counter-claim.
    5. The court can then dismiss the wife’s petition but grant the husband’s counter-claim, issuing a divorce in the husband’s favor.

Section 36: Alimony pendente lite

“Pendente lite” is Latin for “pending the litigation” or “while the case is ongoing.” This section is about temporary financial support for a wife during the divorce or separation proceedings.

• Section 36 (Main Clause): “Where in any proceeding… it appears to the district court that the wife has no independent income sufficient for her support and the necessary expenses of the proceeding, it may, on the application of the wife, order the husband to pay to her the expenses of the proceeding, and weekly or monthly… such sum as having regard to the husband’s income, it may seem… reasonable.”
  • What it means (in simple English): If a wife files for divorce (or separation, etc.) and she does not have enough independent income to support herself and pay her lawyer’s fees, she can file a separate application with the court.
  • The court can then order the husband to:
    1. Pay her a lump sum for the “expenses of the proceeding” (i.e., her lawyer’s fees).
    2. Pay her a weekly or monthly amount for her basic support (rent, food, etc.) until the case is over.
  • The amount will be based on what the court thinks is “reasonable” after looking at the husband’s income.
  • Real-world example: Priya is a homemaker and files for divorce from her husband, Rohan, who is a salaried engineer. Priya has no income. She files an application under Section 36. The judge reviews Rohan’s salary slips and orders him to pay Priya ₹20,000 immediately for her legal fees and ₹15,000 every month for her support until the divorce is finalized.
• Section 36 (Proviso): “…the application for the payment of the expenses of the proceeding and such weekly or monthly sum… shall, as far as possible, be disposed of within sixty days from the date of service of notice on the husband.”
  • What it means (in simple English): The law recognizes that this is an urgent need. The court must try its best to decide on this application for temporary support within 60 days from when the husband is officially notified.
  • Real-world example: Priya files her application on March 1st. The notice is served on Rohan on March 5th. The court must try to give its final order on her application (e.g., “Rohan must pay…”) before May 4th (60 days from March 5th).

Section 37: Permanent alimony and maintenance

This section deals with financial support after the divorce or separation has been finalized.

• Section 37, Sub-section (1): “Any court… at the time of passing any decree or at any time subsequent to the decree… order that the husband shall secure to the wife for her maintenance and support… such gross sum or such monthly or periodical payment of money for a term not exceeding her life…”
  • What it means (in simple English): When the judge grants the divorce (or nullity, etc.), or at any time after, the court can order the husband to provide permanent financial support to the wife. This can be in two forms:
    1. “Gross sum”: A one-time, final lump sum payment (e.g., “Pay her ₹25 lakhs, and that’s it.”).
    2. “Monthly or periodical payment”: A recurring payment (e.g., “Pay her ₹20,000 every month”) for a specific term, which can be up to her entire lifetime.
  • The court decides the amount by looking at all the circumstances, including: “her own property,” “her husband’s property and ability,” and “the conduct of the parties.”
  • Real-world example: When granting a divorce, the judge sees that the wife is 50 years old, has no job skills, and was a homemaker for 30 years. The husband has a successful business. The judge orders the husband to pay her a monthly maintenance of ₹40,000 for the rest of her life.
• Section 37, Sub-section (2): “If the district court is satisfied that there is a change in the circumstances of either party… it may, at the instance of either party, vary, modify or rescind any such order…”
  • What it means (in simple English): A permanent alimony order is not set in stone (unless it was a one-time lump sum). If the financial situation of either person changes significantly, either one can go back to court and ask to change (“vary” or “modify”) or cancel (“rescind”) the order.
  • Real-world example 1 (Husband’s situation changes): A husband was ordered to pay ₹20,000/month. Five years later, he has a disabling accident and his income drops to zero. He can petition the court to reduce or cancel the alimony.
  • Real-world example 2 (Wife’s situation changes): A wife was getting ₹20,000/month. Five years later, she gets a high-paying job. The husband can petition the court to reduce or cancel the alimony, as she no longer needs it.
• Section 37, Sub-section (3): “If the district court is satisfied that the wife… has remarried or is not leading a chaste life, [it may, at the instance of the husband… vary, modify or rescind any such order…]”
  • What it means (in simple English): The husband can go to court to cancel the alimony if he can prove two specific things about the wife:
    1. She has remarried. The new husband is now expected to support her.
    2. She is “not leading a chaste life.” This is a controversial old-fashioned term, but in legal practice, it generally means she is in a relationship of cohabitation (living with another man as if married).
  • Real-world example: A husband is paying alimony. He discovers his ex-wife has remarried. He can take her marriage certificate to court and file an application to rescind (cancel) the alimony order, and the court will likely grant it.

Section 38: Custody of children

This section gives the court the power to decide the future of the children from the marriage.

• Section 38 (Main Clause): “In any proceeding… the district court may, from time to time, pass such interim orders and make such provisions in the decree… with respect to the custody, maintenance and education of minor children, consistently with their wishes wherever possible…”
  • What it means (in simple English): The court has full power to decide what is best for the minor children (under 18). This includes:
    • “Interim orders”: Temporary orders during the divorce case (e.g., “The child will live with the mother, but the father has visitation on weekends until the case is over.”).
    • “Provisions in the decree”: The final, permanent order in the divorce judgment (e.g., “The mother gets permanent custody. The father must pay ₹10,000/month for the child’s school fees.”).
  • The most important factor the court must consider is the “wishes” of the child, if the child is old enough to have a mature opinion (usually judges will speak to children over 7-8 years old in private).
  • Real-world example: In a divorce, both parents want custody of their 12-year-old son. The judge calls the son into her private chambers and asks him who he would prefer to live with. The son’s preference will be a major factor in the judge’s final decision.
• Section 38 (Post-decree Clause): “…and may, after the decree, upon application… make, revoke, suspend or vary… all such orders and provisions…”
  • What it means (in simple English): Just like alimony, child custody and support orders are never final. They can always be changed. Either parent can go back to court at any time (until the child turns 18) and ask for the order to be changed (“varied”), canceled (“revoked”), or paused (“suspended”).
  • Real-world example: A wife is given custody. Two years later, she gets a job that requires her to travel constantly, and she can no longer care for the child. The husband can file a new application, and the court might vary the original order and grant him custody.
• Section 38 (Proviso): “…the application with respect to the maintenance and education of the minor children, during the proceeding… shall, as far as possible, be disposed of within sixty days…”
  • What it means (in simple English): Just like the wife’s temporary support (Sec 36), an application for temporary child support is urgent. The court must try its best to decide on it within 60 days of the other parent being notified.
  • Real-world example: A mother files for interim child maintenance on May 1st. The court must try to pass an order for the child’s school fees and living expenses by early July.

Section 39: Appeals from decrees and orders

This section explains your right to challenge the judge’s decision in a higher court.

• Section 39, Sub-section (1): “All decrees made by the court… shall… be appealable as decrees… made in the exercise of its original civil jurisdiction, and such appeal shall lie to the court to which appeals ordinarily lie…”
  • What it means (in simple English): You have the right to appeal any final decree (the final judgment that grants or denies a divorce, nullity, or judicial separation). The appeal is filed in the next highest court, which is almost always the High Court of that state.
  • Real-world example: A husband files for divorce on the ground of cruelty. The district court dismisses his petition. He believes the judge made a legal error and can file an appeal in the High Court, asking them to review the case.
• Section 39, Sub-section (2): “Orders made by the court… under section 37 or section 38 shall… be appealable if they are not interim orders…”
  • What it means (in simple English): You can also appeal the final orders for permanent alimony (Sec 37) and child custody (Sec 38).
  • The Exception: You generally cannot appeal “interim orders” (temporary orders). For example, you can’t file a full appeal at the High Court just because you’re unhappy with the temporary maintenance amount. You must wait for the final order.
• Section 39, Sub-section (3): “There shall be no appeal under this section on the subject of costs only.”
  • What it means (in simple English): At the end of a case, the judge might order one party to pay the other party’s legal “costs” (e.g., “Husband must pay ₹25,000 to wife for her legal fees”). You cannot file an appeal only because you are unhappy about this cost. If you are appealing the main divorce, you can include the costs, but you can’t appeal just the costs.
• Section 39, Sub-section (4): “Every appeal under this section shall be preferred within a [period of ninety days] from the date of the decree or order.”
  • What it means (in simple English): This is a strict deadline. You must file your appeal at the High Court within 90 days of the date the district court’s order was passed. If you miss this deadline, you lose your right to appeal.

Section 39A: Enforcement of decrees and orders

• Section 39A (Main Clause): “All decrees and orders… shall be enforced in the like manner as the decrees and orders of the court made in the exercise of its original civil jurisdiction…”
  • What it means (in simple English): This means the court’s orders have real power. If your ex-spouse refuses to obey an order (like paying alimony or child support), you can file an “Execution Petition.” The court can then force them to pay, for example, by “attaching” their salary (ordering their employer to pay you directly) or even seizing their property.
  • Real-world example: A husband refuses to pay the ₹10,000/month child support. The wife can file an Execution Petition. The judge can issue an order to the husband’s company, directing them to deduct ₹10,000 from his salary each month and send it straight to the wife.

Section 40: Application of Act 5 of 1908

• Section 40 (Main Clause): “Subject to the other provisions contained in this Act… all proceedings… shall be regulated, as far as may be, by the Code of Civil Procedure, 1908 (5 of 1908).”
  • What it means (in simple English): This is a technical, procedural rule. It just states that all the general rules of civil court cases (found in the “Code of Civil Procedure”)—like how to send a notice, how to summon witnesses, how to submit evidence, etc.—will apply to cases under this Act, unless this Act has its own specific rule.
  • Real-world example: The Special Marriage Act doesn’t specify how to summon a witness. Therefore, the general rules from the Code of Civil Procedure are used. However, the SMA does have a specific rule for jurisdiction (Section 31), so that rule overrides the general CPC rules.

Section 41: Power of High Court to make rules regulating procedure

This section gives High Courts the authority to create detailed, day-to-day operational rules for how cases under this Act are handled in the lower district courts.

• Section 41, Sub-section (1): “The High Court shall… make such rules consistent with… this Act and the Code of Civil Procedure… for the purpose of carrying into effect the provisions of Chapters V, VI and VII.”
  • What it means (in simple English): The High Court of each state (e.g., Bombay High Court, Delhi High Court) is in charge of making a detailed “rulebook” for the family courts in its state. These rules must be for cases involving Restitution (Ch. V), Nullity/Divorce (Ch. VI), and Jurisdiction/Procedure (Ch. VII). The rules cannot contradict the Special Marriage Act itself or the main Code of Civil Procedure (the master rulebook for all civil cases).
  • Real-world example: The Special Marriage Act says you must file a “petition” for divorce, but it doesn’t specify the font size, paper type, or exact format. The state High Court can make a rule that says, “All petitions for divorce must be filed on A4-size legal paper, with 1-inch margins, and must be accompanied by an affidavit.”
• Section 41, Sub-section (2): “In particular, and without prejudice to the generality of the foregoing provision, such rules shall provide for,–”
  • What it means (in simple English): This lists specific topics that the High Court must make rules about.
• Section 41(2), clause (a): “…the impleading by the petitioner of the adulterer as a co-respondent on a petition for divorce on the ground of adultery, and the circumstances in which the petitioner may be execused from doing so;”
  • What it means (in simple English): The High Court must create a rule about what to do in adultery cases. Specifically, whether the person filing for divorce (the “petitioner”) must legally name the person their spouse cheated with (the “adulterer”) and make them a formal party to the case (a “co-respondent”). It also lets the High Court make rules for exceptions (e.g., if the person’s identity is unknown).
  • Real-world example: The High Court makes a rule: “In any petition for divorce on the ground of adultery, the petitioner shall make the alleged adulterer a co-respondent, unless they are excused by the court on the grounds that the alleged adulterer is dead, their identity is unknown, or for other sufficient cause.”
• Section 41(2), clause (b): “…the awarding of damages against any such co-respondent;”
  • What it means (in simple English): The High Court can make rules allowing a judge to order the “co-respondent” (the person your spouse cheated with) to pay you monetary compensation (“damages”) for their role in breaking up the marriage.
  • Real-world example: Based on a High Court rule, a husband proves his wife committed adultery with a co-worker. The judge not only grants the divorce but also orders the co-worker (the co-respondent) to pay the husband ₹1,00,000 in damages.
• Section 41(2), clause (c): “…the intervention in any proceeding… by any person not already a party thereto;”
  • What it means (in simple English): This allows the High Court to set rules for a third party (like a relative, a creditor, or someone with a stake in the matter) to “intervene” and join the case if they have a valid reason.
  • Real-world example: In a messy divorce, a couple is fighting over a house. A bank (which has a mortgage on the house) might “intervene” based on High Court rules to protect its financial interest before the house is given to one party.
• Section 41(2), clause (d): “…the form and contents of petitions… and the payment of costs…”
  • What it means (in simple English): The High Court can create standardized templates or forms for all divorce/nullity petitions to ensure everyone provides the same necessary information. It also makes rules for how legal “costs” (lawyer’s fees, etc.) are calculated and awarded.
  • Real-world example: The Delhi High Court might publish a “Form 1: Petition for Divorce (SMA)” on its website, which all lawyers must use.
• Section 41(2), clause (e): “…any other matter for which no provision or no sufficient provision is made in this Act…”
  • What it means (in simple English): This is a “catch-all” clause. If there’s a procedural loophole or a situation that this Act doesn’t cover, the High Court can make a rule to fill that gap.
  • Real-world example: The Special Marriage Act was written in 1954, long before the internet. The High Court can use this power to create rules for serving divorce notices via email or conducting hearings via video conference.