Special Marriage Act, 1954 · Section 28 · Divorce by Mutual Consent · Civil & Inter-Faith Marriages

Section 28 of the Special Marriage Act, 1954 — Mutual Consent Divorce

Section 28 is the mutual consent divorce provision for couples whose marriage was registered under the Special Marriage Act, 1954 — India's secular civil marriage law that applies to all persons regardless of religion. For inter-faith couples, same-faith couples who chose a civil ceremony, and anyone whose marriage certificate references the Special Marriage Act, this is the provision that governs how their marriage can be dissolved by agreement.

This page covers Section 28 specifically — what is genuinely distinct about it, how it differs from the Hindu Marriage Act equivalent that most people are familiar with, the property succession consequence that most couples are unaware of, and the answers to questions that come up specifically for Section 28 cases. It is not a general mutual divorce guide — for that, read our pages on the mutual divorce process and mutual divorce fees.

Statute Quick Reference
ActSpecial Marriage Act, 1954 (Act 43 of 1954)
Section28 — Divorce by Mutual Consent
In force1 January 1955
ChapterChapter VI — Divorce
Applicable toAll couples married under this Act, regardless of religion
ForumDistrict Court / Family Court — Section 31
Separation requiredOne year or more
Cooling-off period6 months minimum; 18 months maximum
Contents
  1. The Act and Its Context
  2. The Bare Act Text
  3. Who Section 28 Applies To
  4. What Is Genuinely Different
  5. The Procedure
  6. The 30-Day Notice Issue
  7. Frequently Asked Questions
Section 1

The Special Marriage Act, 1954 — What It Is and Why It Exists

The Special Marriage Act, 1954 (Act 43 of 1954) is a secular, religion-neutral civil marriage statute. It came into force on 1 January 1955 and extends across the whole of India. It replaced the earlier Special Marriage Act, 1872 — which had required parties to formally renounce their religion as a condition of marriage under it, making it essentially unusable in practice.

The 1954 Act removed that requirement. Any two persons in India can marry under it without declaring or abandoning their religious identity. A Hindu marrying a Muslim, a Christian marrying a Sikh, two atheists, two people of the same faith who simply prefer a civil ceremony over a religious one — all of them can use this Act. The marriage is solemnised before a Marriage Officer, not through any religious rite, and the Marriage Certificate issued under Section 13 of the Act is conclusive proof of the marriage.

Chapter VI of the Act deals with divorce. Section 27 sets out the fault-based grounds for contested divorce. Section 28 provides for mutual consent divorce. Section 29 restricts petitions within the first year of marriage. Section 31 governs jurisdiction.

Section 2

Section 28 — The Exact Statutory Text

Special Marriage Act, 1954 — Section 28 (as amended by Act 68 of 1976)

Section 28. Divorce by mutual consent.

(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court by both the 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.

(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the district court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized under this Act, and 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.

Legislative note: Sub-section (2) was substituted by the Marriage Laws (Amendment) Act, 1976 (Act 68 of 1976), replacing the earlier waiting window of "not earlier than one year and not later than two years" with the current "not earlier than six months and not later than eighteen months." This brought it in line with Section 13B, then being simultaneously introduced into the Hindu Marriage Act, 1955.
Section 3

Which Couples Are Governed by Section 28?

This is where most confusion begins — and it is worth being precise. The determinant is the law under which the marriage was solemnised or registered. Religion alone does not decide it.

Section 28 Applies Where

✓
Marriage was solemnised under the Special Marriage Act — civil ceremony before a Marriage Officer. The Marriage Certificate explicitly references this Act. Any such couple, inter-faith or same-faith, uses Section 28.
✓
A pre-existing religious marriage registered under Section 15 of this Act. Once registered under Section 15, the marriage's legal consequences — including divorce — are governed by the Special Marriage Act.

Section 28 Does Not Apply Where

✗
Marriage solemnised under the Hindu Marriage Act, 1955 — even a court marriage under the HMA. Section 13B governs. Read Section 13B →
✗
Christian couples registered under the Indian Christian Marriage Act, 1872 — Section 10A of the Indian Divorce Act governs. Read Section 10A →
✗
Parsi couples — governed by the Parsi Marriage and Divorce Act, 1936, Section 32B. Read Section 32B →
The practical check: Look at your marriage certificate. The statute cited on or traceable through the registration documents tells you which law governs the marriage — and which divorce provision applies.
Section 4

What Is Genuinely Different About Section 28

Most of the procedural framework — one year of separation, First Motion, six-month wait, Second Motion, decree — is identical in operation to Section 13B of the Hindu Marriage Act. Courts have consistently held that Section 28(2) is pari materia to Section 13B(2), and the same judicial principles apply to both.

Two things about Section 28 are genuinely, substantively different from any personal law equivalent. Both matter in ways that couples frequently overlook.

01

The Property Succession Consequence of Marriage Under This Act

This is the most significant and least-discussed consequence of marriage under the Special Marriage Act, and it affects couples regardless of whether they are aware of it.

Section 21 of the Special Marriage Act provides that the property succession of persons married under the Act — and of the issue (children) of such marriages — is governed by the Indian Succession Act, 1925. Not by Hindu personal law. Not by Muslim personal law. Not by any community's personal law.

What this means practically: A Hindu who marries under the Special Marriage Act is no longer governed by the Hindu Succession Act, 1956 for property inheritance. The coparcenary structure — through which sons and daughters acquire rights in ancestral property by birth under Hindu law — is displaced. Inheritance from both spouses and from their children flows under the Indian Succession Act instead.

This does not affect the Section 28 divorce process directly. But it has real consequences for the settlement agreement in a mutual divorce. The property clause in the MoU should be drafted with awareness of which succession law actually governs — not assumed to reflect Hindu Succession Act coparcenary rules when they do not apply.

Practical advice: Couples with significant property or family inheritance interests should consult a property lawyer alongside the divorce process to understand the succession implications specific to their situation before finalising settlement terms.
02

What the Court Specifically Verifies at the Second Motion

Section 28(2) requires the court to be satisfied "that a marriage has been solemnized under this Act."

This is different from Section 13B(2) of the Hindu Marriage Act, which simply requires satisfaction that "a marriage has been solemnized." Under Section 28, the court specifically checks that the marriage was solemnised under the Special Marriage Act, 1954 — not under any personal law, not under a religious rite, but under this specific civil statute.

The Marriage Certificate issued under Section 13 of the Act is the primary evidence of this. A couple who performed religious ceremonies alongside their civil registration, or who registered an existing religious marriage under Section 15, must ensure that the Section 15 registration certificate or the Section 13 certificate is produced before the court.

Critical point: A petition filed under Section 28 by a couple whose marriage was actually solemnised under a personal law statute — through confusion about which law applies — will face a substantive objection at the hearing stage. Getting the correct statute right before filing is a substantive requirement, not a technicality.
Section 5

How the Section 28 Process Works

Since Section 28 and Section 13B operate identically in structure, this section covers only the points specific to Section 28 proceedings. For the full procedural walkthrough, read our dedicated pages on the First Motion and Second Motion.

Jurisdiction — Section 31

Petitions are presented to the district court specified under Section 31 of the Special Marriage Act. Jurisdiction lies where: the marriage was solemnised; the respondent resides at the time of the petition; the parties last resided together; or the wife currently resides (if the wife is a petitioner). Where a Family Court has been established within the jurisdiction, it exercises this jurisdiction instead of the ordinary civil district court.

The Six-Month Cooling-Off Period — and the Waiver

Section 28(2) imposes a minimum of six months between filing and the Second Motion. Courts have consistently held — through cases like Rajkumar Sureen v. Smt. Manju Tirki (Madhya Pradesh HC, 2018) and Atif Ulla Shariff v. Nil (Karnataka HC, 2020) — that Section 28(2) is pari materia to Section 13B(2), and that the Amardeep Singh v. Harveen Kaur [(2017) 8 SCC 746] framework for waiving the cooling-off period applies equally to Section 28 proceedings.

The same four conditions apply: separation of over 18 months before the First Motion, failure of all reconciliation efforts, genuine settlement of all differences, and the waiting period serving no purpose. Read our cooling-off period and waiver guide for the full conditions.

The Settlement — What Section 28 Cases Specifically Require

The settlement MoU should address all standard items — alimony, child custody if applicable, streedhan, jointly held property. In addition, for couples where the Indian Succession Act displacement (discussed above under Difference 1) is relevant, the property clause must be drafted with awareness of which succession law actually governs their interests.

Alimony is governed by Sections 36 and 37 of the Special Marriage Act. Section 36 provides for alimony pendente lite. Section 37 provides for permanent alimony after the decree. In a mutual consent divorce under Section 28, alimony is agreed between the parties and confirmed by the court — the court does not impose terms.

Privacy — Section 33

Section 33 of the Special Marriage Act requires all proceedings under the Act to be conducted in camera. No person may print or publish any matter in relation to any proceeding under the Act except a judgment of the High Court or Supreme Court printed with prior court permission. For inter-faith couples who often face family or social pressure about their marriage, this provision ensures the divorce proceedings remain private. The experience of the Section 28 proceeding is significantly more private than most people assume.

Section 6 — Side Note

The Marriage Notice Controversy — and Why It Matters for Some Couples

This section is not about Section 28 specifically, but it is relevant context for couples whose marriage under the Special Marriage Act involved the 30-day notice requirement — and who have concerns about that process informing future proceedings.

When a couple marries under the Special Marriage Act, Sections 5 and 6 require written notice to the Marriage Officer and public display for 30 days, during which objections can be raised. This requirement has been widely criticised as exposing inter-faith and inter-caste couples to family pressure, intimidation, and in some cases violence. Multiple High Courts have held that couples can request the Marriage Officer not to publish the notice, citing the right to privacy under K.S. Puttaswamy v. Union of India (2017). The Allahabad High Court in Safiya Sultana v. State of UP (2021) specifically held that publication of the notice is not mandatory.

For the divorce process: Section 28 proceedings have no equivalent public notice or objection mechanism. The proceedings are in camera and the petition is not publicly announced. The experience of the marriage registration process is not predictive of the divorce process — couples who faced difficulty during registration need not expect the same during dissolution.
Section 7

Questions Specific to Section 28

Q1
We are both Hindu but we had a court marriage under the Special Marriage Act. Do we use Section 28 or Section 13B for our mutual divorce?

Section 28. The governing provision follows the law under which your marriage was solemnised, not your religion. Two Hindus who chose a civil ceremony under the Special Marriage Act are not governed by the Hindu Marriage Act for divorce purposes. Your marriage certificate will show registration under the Special Marriage Act — that determines your applicable divorce provision. This also means the Indian Succession Act governs your property succession, not the Hindu Succession Act. If you have significant ancestral or inherited property interests, understanding this distinction matters before finalising your settlement terms.

Q2
We married under the Special Marriage Act. Does that mean the Hindu Succession Act no longer applies to us for property inheritance?

Correct, if you are Hindu. Section 21 of the Special Marriage Act expressly provides that succession to the property of persons married under the Act, and to the property of the children of such marriages, is governed by the Indian Succession Act, 1925 — not by personal law. A Hindu who married under the Special Marriage Act steps outside the Hindu Succession Act's coparcenary framework for inheritance purposes. This has no bearing on the Section 28 divorce procedure itself, but it significantly affects what property rights each spouse holds during the marriage and what a property settlement clause in the mutual divorce MoU needs to address. Consulting a property or succession lawyer alongside the divorce process is advisable if either spouse has significant family property interests.

Q3
We are a Hindu-Muslim couple. One of us is arguing we should file under Hindu law and the other says we need the Special Marriage Act. How do we settle this?

Your marriage certificate settles it. A Hindu-Muslim couple cannot validly marry under either the Hindu Marriage Act or Muslim personal law — neither statute accommodates inter-faith marriages. Such a couple would have had to marry under the Special Marriage Act, 1954. Their marriage certificate will reference that Act. Accordingly, their mutual divorce is governed by Section 28, not by any personal law provision. There is no choice between the two — the applicable provision is determined by the statute under which the marriage was registered, and for an inter-faith couple, that must be the Special Marriage Act.

Q4
Our marriage certificate shows the Special Marriage Act. But we also had a religious ceremony. Does the religious ceremony change which divorce law applies?

No. Once a marriage is registered under the Special Marriage Act — whether through an initial civil ceremony or through subsequent registration of a religious marriage under Section 15 of the Act — the legal framework for the marriage, including its dissolution, is the Special Marriage Act. The fact that a religious ceremony also took place alongside or before the civil registration does not bring the marriage under any personal law for legal purposes. The civil registration is what determines the applicable law.

Q5
Can the six-month cooling-off period under Section 28 be waived?

Yes. Courts have consistently held that Section 28(2) is pari materia to Section 13B(2) of the Hindu Marriage Act, and that the Amardeep Singh v. Harveen Kaur [(2017) 8 SCC 746] waiver framework applies equally to Section 28 proceedings. The Madhya Pradesh High Court in Rajkumar Sureen v. Smt. Manju Tirki (2018) and the Karnataka High Court in Atif Ulla Shariff v. Nil (2020) both confirmed this directly. The conditions are the same as under Section 13B — separation of over 18 months before First Motion, all reconciliation failed, all differences genuinely settled, and the waiting period serving no purpose. The waiver remains in the court's discretion even where the conditions are met.

Q6
We want to file our Section 28 petition in Delhi but one of us lives in Mumbai. Is that possible?

Only if Delhi has territorial jurisdiction under Section 31 of the Special Marriage Act — where the marriage was solemnised, where the respondent currently resides, where the parties last resided together, or where the wife currently resides if she is a petitioner. If none of these connects to Delhi, Delhi does not have jurisdiction regardless of convenience. Filing before a court without territorial jurisdiction results in the petition being returned without being numbered. We confirm the correct court from your actual addresses and marriage facts before any filing.

Q7
We have a jointly held flat in Mumbai with an outstanding home loan. How should this be addressed in the Section 28 settlement?

Specifically — the MoU should state which spouse retains the flat or whether it will be sold, the timeline for completing any transfer or sale, and which spouse is responsible for EMIs going forward. If one spouse is to be removed from the loan, the bank's consent is required separately — the divorce decree alone does not restructure the loan. The MoU commits both parties to what they will do; the bank-level execution follows after the decree. Vague language like "the flat will be dealt with after the divorce" is not sufficient and frequently becomes a post-decree dispute. Draft it specifically.

Q8
My spouse and I had an inter-faith marriage and neither of our families knows. Section 28 proceedings are in camera — does that mean our family members cannot access the court records?

The in-camera requirement under Section 33 of the Special Marriage Act means no members of the public are present at the hearing. The court proceedings are not open sessions. The petition, once filed, becomes part of the court's internal records — it is not published, not listed on any public registry, and not announced in any official communication. Neither spouse's family can access the court file without a legitimate legal basis to do so. The proceedings are significantly more private than most people assume.

If You Are Reading This

Because Your Marriage Was Under the Special Marriage Act

The mutual divorce process under Section 28 runs along the same lines as a mutual divorce under any other Indian personal law — same three conditions, same two-motion structure, same six-month wait (waivable where the conditions are met). The differences that matter for your specific case are the two discussed on this page: the property succession consequence under Section 21, and the court's specific verification at the Second Motion that the marriage was solemnised under this Act. Both can create practical complications if not addressed in advance.

If you are ready to begin, start with the online divorce form. Our team confirms which statute applies to your marriage during document review before any petition is drafted.

Apply Mutual Divorce Online Special Marriage Act — Full Guide
Related Statutory Provisions

People Also Referred To

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Section 13B Hindu Marriage Act, 1955 Hindus, Buddhists, Jains, Sikhs — mutual consent divorce View Page →
Section 10A Indian Divorce Act, 1869 Christian couples — mutual consent divorce View Page →
Section 32B Parsi Marriage and Divorce Act, 1936 Parsi couples — mutual consent divorce View Page →

This page explains Section 28 of the Special Marriage Act, 1954 as it currently stands in the statute and as interpreted through the judgments cited. The content is for informational purposes and does not constitute legal advice. Whether the Special Marriage Act governs a particular marriage depends on the specific facts of how and under which statute the marriage was registered. The property succession consequences described under Section 21 are a general statement of the legal position — individual circumstances vary and professional legal advice should be sought. Judgments cited are from publicly available sources.