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Report No. 59

9.17. Section 27(1)(c).-

Under section 27(1)(c) of the Special Marriage Act, it is a ground of divorce that the respondent-

"(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (Act 45 of 1860): Provided that divorce shall not be granted on this ground, unless the respondent has prior to the presentation of the petition undergone at least three years' imprisonment out of the said period of seven years" Imprisonment as a ground of divorce has a history. From the Byzantine civil law, the Church1 accepted certain grounds of divorce (high treason, disappearance or desertion, and supervening impotence), and rejected insanity, leprosy, long imprisonment2, and incompatibility. This ground has found a place in the Parsi Marriage and Divorce Act3.

We are of the view that the proviso to the clause, under which the respondent must have undergone at least three years imprisonment, is uncalled for. The proviso gives some time for reflection, but we think that that should be left to the parties. In our view, the proviso unreasonably delays institution of proceedings, in a case where, if the innocent party has at all any cause for seeking divorce, the waiting period serves not much useful purpose. Cases where the sentence is set aside or reduced (on appeal or otherwise) do not also justify a statutory waiting period. In practice, it is unlikely that the aggrieved party will push to court when an appeal is pending. The proviso should, therefore, be deleted.

1. Letter written by Archbishop Germanos and printed as Appendix II to The Church and Marriage (1935), pp. 55ff, as cited in Putting Asunder (London, S.P.C.K. 1966), p. 82.

2. Emphasis supplied.

3. Section 32(f), Parsi Marriage and Divorce Act, 1936.



Hindu Marriage Act, 1955 and Special Marriage Act, 1954 Back




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