1. Legal Framework (Section 28 SMA)

Under Section 28(1), a joint petition can be filed if:

• The spouses have been living separately for at least 1 year
• They have not been able to live together
• They have mutually agreed to dissolve the marriage

Under Section 28(2):

• After filing the first motion, there is a cooling-off period of 6 to 18 months
• In the second motion, both parties confirm consent
• The court, after satisfaction, passes a decree of divorce

📌 Key idea: Mutual consent must exist at both stages (filing and final decree).

2. Step-by-Step Procedure

(A) First Motion (Joint Petition)

Both spouses jointly file a petition before the Family Court stating:

• Marriage under Special Marriage Act
• Living separately for 1+ year
• Mutual inability to live together
• Mutual consent for divorce
• Terms of settlement (alimony, custody, property)

Court then:

• Records statements of both parties
• May refer matter for mediation/counselling
• Passes First Motion order

(B) Cooling-Off Period (6–18 Months)

• Statutory waiting period to allow reconciliation
• Can be waived in appropriate cases by courts (as per judicial discretion)
• Parties may withdraw consent anytime during this stage

(C) Second Motion

• Filed after 6 months (and before 18 months)
• Court verifies:
  • Continued mutual consent
  • Voluntariness (no coercion/fraud)
  • Settlement compliance

(D) Final Decree

If satisfied, the court:

• Grants decree of divorce
• Legally dissolves marriage

3. Essential Legal Principles

(i) Continuous Mutual Consent Required

Consent must exist:

• At filing stage
• At second motion stage

📌 If one party withdraws consent, divorce cannot be granted.

(ii) Cooling-Off Period Not Absolute

The Supreme Court has held it can be waived in appropriate cases.

4. Important Case Laws (at least 6)

1. Sureshta Devi v. Om Prakash (1991) AIR 1992 SC 1904

• Mutual consent must exist till final decree
• Either party can withdraw consent before decree

2. Hitesh Bhatnagar v. Deepa Bhatnagar (2011) 5 SCC 234

• Reaffirmed: consent must continue till second motion
• If withdrawn, court loses jurisdiction to grant divorce

3. Anil Kumar Jain v. Maya Jain (2009) 10 SCC 415

• Courts cannot force divorce in absence of mutual consent
• Strict compliance with Section 13B/Section 28 required

4. Amardeep Singh v. Harveen Kaur (2017) 8 SCC 746

• Landmark ruling:
  • 6-month cooling-off period is directory, not mandatory
  • Can be waived if:
    • Separation is long
    • No possibility of reconciliation
    • Settlement is final

5. Nikhil Kumar v. Rupali Kumar (2022) 12 SCC 654

• Emphasised role of settlement agreements
• Courts must ensure consent is voluntary and informed

6. K. Srinivas Rao v. D.A. Deepa (2013) 5 SCC 226

• Recognised irretrievable breakdown of marriage
• Encouraged speedy resolution in mutual consent cases

7. Shilpa Sailesh v. Varun Sreenivasan (2023) 14 SCC 231

• Supreme Court expanded power under Article 142:
  • Courts can dissolve marriage even when technical conditions exist
  • Reinforced pragmatic approach in matrimonial disputes

5. Key Features of Mutual Consent Divorce under SMA

• No need to prove fault or misconduct
• Entirely based on mutual agreement
• Faster than contested divorce (in practice varies)
• Settlement on:
  • Maintenance
  • Custody
  • Property division
• Strict judicial scrutiny of consent

6. Difference from Hindu Marriage Act (brief comparison)

Conclusion

Mutual consent divorce under Section 28 of the Special Marriage Act, 1954 is a structured but flexible legal process designed to ensure:

• Genuine consent of both parties
• Fair settlement of disputes
• Opportunity for reconciliation
• Judicial verification before dissolution

The Supreme Court’s jurisprudence, especially in Amardeep Singh, Sureshta Devi, and Shilpa Sailesh, has made the process more practical while still safeguarding against coercion or misuse.