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

This page provides an updated overview and sample joint petition for divorce by mutual consent under Section 28 of the Special Marriage Act, 1954. The format is illustrative and should be adapted to the facts, local Family Court or District Court rules, and the parties' settlement.

Important: A legal pleading should reflect the actual facts of the marriage and settlement. Do not retain statements about children, alimony, stridhan, pending cases, jurisdiction, or settlement unless they are true and applicable. Court forms, affidavits, filing procedures and document requirements can vary by State and court.

Section 28: divorce by mutual consent

Under Section 28(1), both spouses may jointly present a petition to the competent District Court when they have been living separately for at least one year, have not been able to live together, and have mutually agreed that the marriage should be dissolved.

Section 28(2) provides for the subsequent joint motion after the statutory interval and within the prescribed outer limit, provided the petition has not been withdrawn. The court must satisfy itself, after hearing the parties and making such inquiry as it considers appropriate, that the marriage was solemnized under the Act and that the statements in the petition are true before granting the decree.

Official text: Special Marriage Act, 1954 on India Code.

Six-month cooling-off period and waiver

The six-month period between the first and second motions should not be described as automatically waivable. The Supreme Court has held, in the context of the substantially similar mutual-consent provision in Section 13B(2) of the Hindu Marriage Act, that the cooling-off period is directory and may be waived by the court in appropriate circumstances. Courts have applied that reasoning to Section 28(2) of the Special Marriage Act as well. A waiver therefore depends on judicial discretion and the facts of the particular case.

Relevant Supreme Court authority: Amardeep Singh v. Harveen Kaur, judgment dated 12 September 2017. The later Supreme Court decision in Amit Kumar v. Suman Beniwal clarified that the factors identified for waiver are relevant considerations and are not to be applied with rigid statutory inflexibility.

Before using the sample petition

Confirm that the marriage was solemnized or registered under the Special Marriage Act, 1954 and that Section 28 is the correct provision.
State the actual date from which the parties have been living separately and ensure the statutory requirement is met.
Set out the correct territorial jurisdiction facts applicable under the Act and local court structure.
Record the genuine settlement on maintenance or alimony, stridhan or articles, child custody and access, property, litigation and other claims, where applicable.
Use separate waiver, settlement, affidavit or supporting applications where required by the court.

Sample joint petition under Section 28

IN THE COURT OF THE _____________ JUDGE / FAMILY COURT AT _____________

CASE / PETITION NO. ______ OF 20__

IN THE MATTER OF:

[Name of Spouse / Petitioner No. 1]
Age: ___ years
Address: ______________________________
.......................................................... Petitioner No. 1

AND

[Name of Spouse / Petitioner No. 2]
Age: ___ years
Address: ______________________________
.......................................................... Petitioner No. 2

JOINT PETITION FOR A DECREE OF DIVORCE BY MUTUAL CONSENT UNDER SECTION 28 OF THE SPECIAL MARRIAGE ACT, 1954

MOST RESPECTFULLY SHOWETH:

1. The marriage between the Petitioners was solemnized on __________ at __________ and was solemnized / registered under the Special Marriage Act, 1954 on __________. After the marriage, the parties lived together as spouses at ______________________________.

2. The particulars of the Petitioners are as follows:

Particulars	Petitioner No. 1	Petitioner No. 2
Age	__________	__________
Address before marriage	__________	__________
Present address	__________	__________
Occupation / status, if required	__________	__________

3. [If applicable] One / more child(ren) were born from the wedlock, namely __________________, date(s) of birth __________. The parties have mutually settled custody, visitation, educational and financial arrangements as follows: ______________________________.

4. The Petitioners have been living separately since __________, for a period of one year or more immediately relevant to the filing of this petition, and have not been able to live together.

5. Differences arose between the Petitioners and efforts at reconciliation have not resulted in resumption of matrimonial life. The Petitioners have, after due consideration and of their own free will, mutually agreed that the marriage should be dissolved.

6. There has been no cohabitation between the Petitioners since __________ [delete or modify if factually incorrect].

7. The Petitioners have voluntarily settled their matrimonial claims and obligations as follows:

(a) Permanent alimony / maintenance: ______________________________.
(b) Stridhan, jewellery, articles and belongings: ______________________________.
(c) Child custody / access / support, if applicable: ______________________________.
(d) Property, financial or other claims, if applicable: ______________________________.
(e) Any other agreed term: ______________________________.

8. The parties have agreed to take appropriate steps regarding pending complaints, cases or proceedings, if any, strictly in accordance with law and the terms of their settlement: ______________________________.

9. The consent of each Petitioner to the filing of this petition is free, informed and voluntary and has not been obtained by force, fraud or undue influence.

10. Except as disclosed below, no other matrimonial proceeding concerning dissolution of this marriage is pending between the Petitioners: ______________________________.

11. This Hon'ble Court has jurisdiction to entertain the present petition because ______________________________ [insert the correct jurisdictional facts applicable under the Special Marriage Act, 1954 and local court arrangement].

12. The Petitioners state that there is no legal impediment to grant of a decree of divorce by mutual consent and undertake to comply with all lawful requirements and directions of this Hon'ble Court.

13. [Optional, where a waiver is sought] The Petitioners intend to file / have filed an application seeking waiver of the statutory cooling-off period, setting out the facts relied upon. The Petitioners understand that waiver is subject to the discretion of the competent court.

PRAYER

In these circumstances, the Petitioners respectfully pray that this Hon'ble Court may be pleased to:

(a) accept the present joint petition and, upon compliance with Section 28 of the Special Marriage Act, 1954 and other applicable requirements, pass a decree dissolving the marriage between the Petitioners by mutual consent; and

(b) pass such other or further order as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.

Petitioner No. 1

Signature: __________

Petitioner No. 2

Signature: __________

Through Counsel

______________________, Advocate

Place: __________
Date: __________

VERIFICATION

We, the above-named Petitioners, verify that the contents of paragraphs ___ to ___ are true to our personal knowledge, the contents of paragraphs ___ to ___ are based on information believed by us to be true, and nothing material has been concealed therefrom.

Verified at __________ on this ___ day of __________, 20__.

Petitioner No. 1

Signature: __________

Petitioner No. 2

Signature: __________

Common supporting documents

The documents commonly filed with or during a mutual-consent divorce matter may include the following, subject to the rules and directions of the particular court:

Affidavits or statements of both Petitioners, where required.
Marriage certificate / proof of marriage under the Special Marriage Act.
Identity and address proof of both Petitioners.
Photographs, if required by local filing practice.
Settlement agreement / memorandum of understanding, where executed.
Documents concerning alimony payment, stridhan, property settlement or child arrangements, where relevant.
Copies or details of connected proceedings that are required to be disclosed.

Always verify the current checklist, affidavit format, court-fee requirement, e-filing process and local Family Court / District Court practice before filing.

Official legal references

Disclaimer: This sample is for general legal information and drafting assistance. It is not a substitute for advice on the facts of a particular case. Statutory interpretation, court practice and procedural requirements may change.