Where a marriage was solemnised as per the Christian rites and was registered under the Christian Marriage Act, applicable in India, can such marriage be dissolved under the provisions of the Special Marriage Act?
It may be pointed out that Section 27 of the Special Marriage Act lays down provisions for divorce and Section 28 of that Act lays down provisions for divorce by mutual consent.
In the case of Sri Prakash Martin Tegur v. Smt. Joyce Samuel, ILR 2013 KAR 793 : (2013) 1 Kant LJ 646, the parties were Christians. Their marriage was solemnized on as per the Christians Rites and it was registered under the provisions of the Indian Christian Marriage Act, 1872.
A joint petition was filed by them under Section 28 of the Special Marriage Act, 1954. The matter was referred to the Mediation Centre. The parties settled their dispute before the Mediation Centre. The Mediation Centre also accepted the terms of settlement and a Memorandum of agreement as required under Section 89A of CPC came into existence. Thereafter, the settlement arrived at before the Mediation Centre was accepted by the Family Court dissolving the marriage solemnized between the parties as per the provisions of the Indian Christian Marriage Act.
Subsequently, the legality of such dissolution of marriage (under Section 28 of the Special Marriage Act) was challenged before the Karnataka High Court.
In these circumstances, the Karnataka High Court held that considering the provisions of the Indian Divorce Act and the Special Marriage Act, the petition filed by the parties (whose marriage had been registered under the Christian Marriage Act) under Section 28 of the Special Marriage Act was not applicable to the parties. Therefore, the order passed by the Family Court for dissolution of the marriage was held to be nullity and void ab initio. Liberty was granted to the parties to approach the Court under the provisions of the Indian Divorce Act.
It is noteworthy that the (Indian) Divorce Act, 1869 is an Indian law that deals with the divorce of persons professing the Christian religion. Section 10 of this Act lays down provisions relating to divorce, and Section 10-A lays down provisions for divorce by mutual consent.
Sir ,
My Daughter got married on 15th December 2017 under Special Marriage Act . On 12th April 2018 approximately around 9:30 pm my Daughter was asked to Leave the House by her Husband Anand Dan, around 11:00 pm myself & Mr.Joy Sarkar went to Anant’s House & Brought my Daughter Back .My Daughter was Diagonised with Lymph node TB around 15th Jan.2018 & She was Emotionally & Mentally Tortured by her Husband & Mother in law Sylvia Dan for not Bringing House Hold articles.
Now my Daughter wants Legal Separation under Special Marriage Act – Please Help us.