Special Marriage Act, 1954 | Section 28 | 2026

Divorce Under the
Special Marriage Act

For couples who married under the Special Marriage Act, whether an inter-faith union or a civil court marriage, the divorce process follows secular law. No religious personal law applies. Section 28 provides a clean, mutual consent pathway that is efficient, private, and legally conclusive.

Section 28 Mutual Consent Civil and Secular Framework Cooling-off Waiver Available NRI Digital Filing Indian Succession Act Applies

Begin Your Divorce Process Check Eligibility

1 Year

Minimum separation

2-3 Mo

Timeline with waiver

Rs.40K

Local flat fee

Rs.80K

NRI all-inclusive

Key Distinction

The Special Marriage Act 1954 is India's secular marriage framework. Once a marriage is registered under it, no religious personal law applies for divorce, regardless of the religion of either spouse or the nature of the original ceremony. An inter-faith couple, a court marriage between two Hindus, or a civil marriage between any two individuals all follow the same SMA process for separation.

Section 28 — The Recommended Path

Mutual Consent Divorce Under the Special Marriage Act

When both spouses agree to separate, Section 28 is the right provision. It mirrors the structure of Section 13B of the Hindu Marriage Act but operates entirely within secular civil law.

The One-Year Separation Requirement

You must have not been living as husband and wife for at least one year before filing the joint petition. Courts interpret this functionally: if you occupy the same home but have no marital relationship or shared finances, you may still qualify.

Same-roof separation is recognised. See our page on filing while living together.

Settlement Agreement Drafted

Before filing, both parties finalise a written agreement covering alimony, child custody, property division, and any other financial obligations. This signed agreement is filed along with the joint petition and becomes part of the court record.

First Motion — Joint Petition Filed

Both spouses appear before the Family Court, present the petition, and record their individual statements confirming the decision is voluntary and free from coercion. The court fixes the case for the next stage.

Cooling-off Period (6 Months, Waivable)

A statutory wait of six months follows the First Motion. If the marriage has irretrievably broken down and all settlements are in place, we file a waiver application at the First Motion itself. When granted, the total process can be completed in as little as 2 to 3 months.

See cooling-off period waiver conditions for full eligibility.

Second Motion — Final Decree

Both parties reconfirm their consent. If no withdrawal has been filed and the court is satisfied, the divorce decree is passed. The marriage is legally dissolved from this date and both parties are free to remarry after the appeal period.

Fee Structure

Rs.40,000

All-inclusive flat fee for local cases. No per-hearing charges.

Online Form (Intake) Rs.999

Documentation and MOU Rs.9,000

First Motion Rs.15,000

Second Motion and Decree Rs.15,000

NRI cases handled for Rs.80,000 all-inclusive, covering digital filing, sPOA coordination, and international decree courier.

Begin Your Divorce Process

Section 27 — When Consent Is Absent

Contested Divorce: Grounds Under the Special Marriage Act

If one spouse will not consent, the other must file a contested petition under Section 27 and establish at least one of the recognised legal grounds before the court.

Adultery

Voluntary sexual intercourse with a person other than the spouse after the marriage. Must be proven with corroborating evidence, not circumstantial suspicion alone.

Cruelty

Physical or mental conduct that makes it unsafe or unreasonable to continue the marriage. Mental cruelty, including sustained emotional abuse, is fully recognised under the Act.

Desertion

Abandonment for a continuous period of at least two years without reasonable cause and without the other spouse's consent. Constructive desertion is also recognised.

Imprisonment

If the spouse is serving a sentence of seven years or more for a criminal offence, this constitutes a standalone ground for divorce under the Act.

Venereal Disease

If the respondent is suffering from a communicable venereal disease in a virulent form, the petitioner can use this as a standalone ground without needing to prove cruelty.

Non-resumption of Cohabitation

If a court has passed an order for Restitution of Conjugal Rights or Judicial Separation and cohabitation has not resumed within one year of that order.

Contested divorce under Section 27 typically takes 2 to 5 years and involves multiple hearings, cross-examination, and evidence submissions. Where both parties are willing, Section 28 mutual consent is almost always the faster and more dignified route. If your spouse is refusing, read our guide on what to do when a spouse refuses divorce.

How It Compares

Special Marriage Act vs. Hindu Marriage Act

Feature	Special Marriage Act (SMA)	Hindu Marriage Act (HMA)
Nature	Civil and Secular	Religious and Personal Law
Mutual Consent Section	Section 28	Section 13B
Mandatory Separation	1 Year	1 Year
Alimony Basis	Secular (Sec. 36 and 37)	Secular (Sec. 24 and 25)
Inheritance Law	Indian Succession Act	Hindu Succession Act
Remarriage	After appeal period	After appeal period
Cooling-off Waiver	Available (SC guidelines)	Available (SC guidelines)

For NRI Couples

Filing Across Borders: NRI Solutions for SMA Divorce

Video conferencing hearings and Special Power of Attorney representation make the entire process manageable remotely.

We coordinate the legal filings, Power of Attorney execution, and video conferencing with the Family Court so that neither spouse is required to physically enter a court building. The decree is collected by us and couriered to your address abroad.

Virtual First and Second Motion

Statements are recorded via court-approved video conferencing. We coordinate the link, schedule, and technical requirements with the Family Court's coordinator.

Digital Filing and Documentation

The petition is filed through the court's digital portal where available. All documents are prepared, reviewed, and submitted remotely without you needing to visit any office.

Apostille and sPOA Coordination

We guide you through notarising and apostilling your Special Power of Attorney in your country of residence, making it valid for use in Indian courts.

NRI All-Inclusive Fee

Rs.80,000

Covers all digital filings, sPOA preparation, VC coordination, and international decree courier

Begin Your NRI Divorce

Financial and Parental Protections

Maintenance, Custody, and Succession Under the SMA

Section 37 — Alimony

Spousal Maintenance

The court can order either a lump sum or monthly maintenance. In a mutual consent case, the amount is agreed upon by both parties in the settlement and documented before filing. The court's role is to verify the agreement is fair and voluntary.

See our full guide on calculating alimony in mutual divorce.

Section 38 — Child Custody

Custody and Education Orders

The court can pass interim and final orders for custody and the education of minor children. Indian courts increasingly favour Shared Parenting plans that keep both parents actively involved in the child's life, unless one parent is demonstrably unfit.

Child support amounts cannot be waived by either parent in any settlement.

Succession Note

Indian Succession Act Applies

For couples married under the SMA, inheritance of property after death is governed by the Indian Succession Act, not Hindu, Muslim, or Christian personal laws. This provides a uniform, secular framework with clearer inheritance protection for children and the surviving spouse.

End to End

The Section 28 Process at a Glance

Drafting

Settlement agreement covering assets, alimony, and custody

First Motion

Joint petition filed, statements recorded before the judge

Waiver Applied

Optional — skips the 6-month wait where eligible

Second Motion

Final confirmation of consent, settlement verified

Final Decree

Judge signs the decree, both parties legally free

Common Questions

Special Marriage Act Divorce: Straight Answers

We had a temple or church wedding but later registered it under the SMA. Which law applies for divorce?

Once a marriage is registered under the Special Marriage Act, it is governed entirely by this Act for the purpose of divorce. The nature of the original ceremony does not change this. The SMA registration is what determines the applicable law.

Can we file for divorce if we only have the marriage certificate and no other documents?

Yes. The Marriage Certificate issued by the Registrar under the Special Marriage Act is the primary legal proof required to initiate the divorce filing. No photographs, witness statements, or additional documentation of the ceremony are required.

Can the six-month cooling-off period be waived under the SMA?

Yes. Under the Supreme Court's guidelines from Amardeep Singh v. Harveen Kaur, if the marriage has irretrievably broken down and all financial and custody terms are already settled, we file a waiver application along with the First Motion. When granted, the total process can be completed in 2 to 3 months. See our page on the cooling-off period waiver for full conditions.

Does the Special Marriage Act apply to inter-religion couples only?

No. While the SMA was originally designed to facilitate inter-religion marriages, it applies to any couple who chose to marry under it, including two Hindus, two Christians, or any other combination. The governing factor is registration under the Act, not religion.

How does inheritance work for children of couples married under the Special Marriage Act?

Inheritance is governed by the Indian Succession Act, not any religious personal law. This provides a uniform secular framework that protects children's inheritance rights regardless of the religion of either parent.

What is the total cost for a mutual consent divorce under the Special Marriage Act?

The flat fee for local mutual consent cases is Rs.40,000, paid across four stages starting from Rs.999 at intake. For NRI couples requiring digital filing, video conferencing coordination, and international decree courier, the all-inclusive fee is Rs.80,000. There are no additional per-hearing or per-document charges at any stage.

Start Your Process Today

Section 28 Divorce, Done Right from Day One

Submit the online form. We draft the settlement agreement, file the petition, and see your case through to the final decree.