Section 28: Divorce by mutual consent

Special Marriage Act • Official Statutory Text & Practice Guide

Statutory Regulation
Legal Standard
Competent Court / Tribunal
Act 1954

Legal Commentary & Landmark Judgments: Section 28

Section 28 of the Special Marriage Act, 1954 provides the statutory framework for divorce by mutual consent.

  • Core Legal Standard: Section 28 provides the consensual route to marriage dissolution.
  • Sub-Section (1): District: Sub-section (1) allows a joint petition to be presented to the District Court by both parties 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.
  • Sub-Section (2) Provision: Sub-section (2) prescribes that on the motion of both parties made not earlier than six months and not later than eighteen months after the date of presentation of the petition, the court, upon hearing the parties and making necessary inquiries into the voluntariness of consent, passes a decree of divorce.

The six-month statutory cooling-off period was enacted to encourage second thoughts and reconciliation.

Key Landmark Precedents:
  • Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746: The Supreme Court held that the six-month waiting period prescribed under mutual consent divorce provisions (Section 13B HMA and Section 28 SMA) is directory, not mandatory. Courts have the discretion to waive the statutory cooling-off period where parties have settled all claims and prolonged waiting would only increase suffering.
  • Shilpa Sailesh v. Varun Sreenivasan (2023 SCC OnLine SC 544): A Constitution Bench of the Supreme Court held that under Article 142 of the Constitution, the Supreme Court can grant divorce on the ground of irretrievable breakdown of marriage and dispense with the procedural timelines of mutual consent divorce.
  • Sureshta Devi v. Om Prakash (1991) 2 SCC 25: The Supreme Court held that mutual consent must continue until the final decree is passed; either party has the right to unilaterally revoke consent prior to the second motion.
Legal Commentary:

Section 28 is the primary mechanism for amicable marital dissolution under the SMA. In drafting mutual consent petitions, parties execute comprehensive Memoranda of Understanding resolving permanent alimony, return of stridhan, child custody, and withdrawal of pending criminal or civil cases, enabling Family Courts to waive the cooling-off period under the Amardeep Singh doctrine.