Writ Petition No. 4254 of 2009 · Bombay High Court

Mr. Anil R. Mishra for the Petitioner No.1. None for the Petitioner No.2. CORAM : SMT. NISHITA MHATRE, DATE : 7TH MAY, 2009. J. P.C. :

This Petition can be disposed of at the stage of admission itself. Both the petitioners have presented the Petition before the Family Court for a divorce on the ground of mutual consent being M.J. Petition No.F-313 of 2009. Both the petitioners are living abroad and therefore the Petition was presented as required under Section 28 of the Special Marriage Act, 1954 by the constituted attorney of petitioner 2 No.1, to which petitioner No.2 had no objection. The constituted attorney of petitioner No.2 was also present when the Petition for a divorce was filed before the Family Court. The Family Court, by its impugned order has observed that unless the petitioner Nos.1 and 2 are present, the Court cannot take cognizance of the Petition as it is not duly verified.

Section 28 of the Special Marriage Act requires parties to present a Petition for divorce if it is to be filed by mutual consent. However, the section does not make it encumbent on the parties to be present when the Divorce Petition is presented in the Court. Sub-section 2 of Section 28 stipulates that either party to the Divorce Petition may after six months of its filing withdraw the consent within eighteen months of the date of presentation of the Petition. Therefore, the presence of the parties is expected between six to eighteen months when the appropriate orders are to be passed on the Divorce Petition. 3

Thus, there is no requirement of the petitioners to a petition for a divorce by mutual consent to be present at the time of presentation of the Petition. Any doubts regarding the consent can always be cleared when the parties are present before the Court after six months.