The Special Marriage Act, 1954 is an Indian legislation that provides for the solemnization of marriages between two individuals belonging to different religions, castes, or states. Section 27 and 28 of the Special Marriage Act deal with the dissolution of marriages registered under the Act.
Section 27 of the Special Marriage Act, 1954 provides for divorce by mutual consent. According to this section, a petition for divorce can be filed jointly by both parties to the marriage after one year of marriage. The parties should have been living separately for a period of one year or more and should have mutually agreed to dissolve the marriage. The court, after hearing both parties and making sure that the consent of both parties is not obtained by fraud or coercion, may grant a decree of divorce.
Section 28 of the Special Marriage Act, 1954 provides for divorce on grounds other than mutual consent. According to this section, either party to the marriage can file a petition for divorce on any of the grounds specified in the Act. The grounds for divorce under this section include adultery, cruelty, desertion, conversion to another religion, unsoundness of mind, and venereal disease.
In order to obtain a decree of divorce under Section 28, the party seeking divorce must prove the grounds for divorce in court. The court will then decide whether the grounds for divorce are sufficient and whether a decree of divorce should be granted.
The Code of Civil Procedure, 1908 (CPC) is a procedural law that governs civil proceedings in India. In divorce cases, the CPC lays down rules of evidence that are applicable to the proceedings. The relevant sections of the CPC that deal with evidence in divorce cases are:
Section 51: Power of court to order production of documents or other material objects - This section allows the court to order the production of any document or other material object that is necessary for the proper adjudication of the case. In a divorce case, this could include marriage certificates, photographs, correspondence, financial records, etc.
Section 60: Oral evidence must be direct - This section lays down the rule that oral evidence must be direct i.e., the witness must have actually seen or heard the event in question. This is relevant in divorce cases where witnesses may be called to testify about the grounds for divorce, such as adultery or cruelty.
Section 65: Evidence to be given on affidavit - This section allows the court to require evidence to be given on affidavit, instead of requiring the witness to appear in court. This could be relevant in a divorce case where the witness is located in a different city or country.
Section 114: Presumption as to documents produced - This section allows the court to presume the genuineness of a document that is produced in court, unless it is proved to be false or fabricated. This is relevant in divorce cases where documents such as marriage certificates or financial records may be produced as evidence.
Section 137: Examination of witnesses - This section provides for the examination of witnesses in court. In a divorce case, witnesses may be called to testify about the grounds for divorce, the conduct of the parties, or any other relevant facts.
One example of a case where video conferencing was used in the absence of a petitioner in mutual divorce is the case of Ramgopal v. Saraswathi, decided by the Madras High Court on June 30, 2020.
In this case, the husband and wife had filed a joint petition for divorce by mutual consent. However, the husband was unable to attend the court proceedings due to his employment in Dubai. The wife appeared before the court and requested that the proceedings be conducted through video conferencing.
The court allowed the request and conducted the proceedings through video conferencing. The wife confirmed that she had no objection to the divorce and the court granted a decree of divorce by mutual consent.
The court observed that the use of video conferencing technology was necessary in order to facilitate the speedy and efficient disposal of cases, particularly in the context of the COVID-19 pandemic. The court also noted that the husband had given his consent for the proceedings to be conducted through video conferencing and that there was no prejudice caused to either party.
This case is significant as it highlights the increasing use of video conferencing technology in legal proceedings, particularly in the context of the COVID-19 pandemic. It also underscores the importance of ensuring that the use of such technology is fair and equitable to all parties involved.
It is important to note that the rules of evidence applicable to divorce cases may vary depending on the specific circumstances of the case and the applicable laws. It is therefore advisable to seek legal advice from a qualified lawyer.
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