Divorce Rules In India: Everything You Should Know

Updated: Apr 14

A woman and a man can legally dissolve their marriage through a divorce. The law states that the court must receive a petition from the husband or wife before granting the separation. Following a divorce, alimony, debt distribution, property division, and child visitation are all granted. Divorce laws and procedures in India differ depending on the couple's religious faith and community. Hindu divorce is governed by the Hindu Marriage Act, 1955. Christian divorce is governed by the Indian Divorce Act of 1869; Muslim divorce is governed by the Dissolution of Muslim Marriages Act of 1939; Parsi divorce is governed by the Parsi Marriage and Divorce Act of 1936; and civil and intercommunity marriages are governed by the Special Marriage Act of 1956.

In India, filing for divorce starts with filing the divorce petition, and once all the formalities are completed, the final divorce decree is issued. The filing of the petition, serving of the summons, responding, the trial, interim orders, and final orders are the six phases of the divorce process. A divorce is the formal dissolution of a marriage achieved by submitting a petition to a court and undergoing other divorce procedures. When a court grants a divorce judgment, it dissolves the couple's matrimonial union and, consequently, their marriage. In addition to the divorce process, it also entails the distribution of assets and property and the custody of the children.

Documents Required to File a Petition for a Divorce

The various documents required to file a petition for contested and mutual divorce are:

Address proof of husband
Address proof of wife
Marriage certificate.
Four passport size photographs of marriage of husband and wife
Evidence proving spouses are living separately since more than a year
Evidence relating to the failed attempts of reconciliation
Income tax statements for the last 2-3 years
Details of profession and present remuneration
Information relating to family background
Details of properties and other assets owned by the petitioner.

Procedure for Filing a Divorce

The procedure for filing a divorce in India is generally regulated by the provision of Code of Civil Procedure, 1908. The procedure for seeking a divorce is initiated by filing a petition which is followed by affidavits from both the partners in the district court. The petition must state the following details

Name of the parties
Status and domicile of the parties
Date and place of marriage
A principal permanent place where the parties cohabit
Place where the parties last resided together
Names of the children of the marriage( if any) with the date of birth
The ground of seeking divorce or separation
The facts and details by which the petitioner seeks the relief
That the parties are not deceiving the court by collaborating

The averments made are verified after six months the couple has to re-appear in the front of court after filing a second motion petition for mutual consent divorce.
After hearing from both the husband and wife, if the judge is satisfied that all essential grounds are filing the recruitments and meeting the needs of divorce, the couple grants a mutual divorce decree.
Custody of child, alimony to wife and litigation expenses will be considered on issuing a decree for divorce.

GROUNDS AND PROCEDURE FOR FILING DIVORCE

TOPIC	INFORMATION
Grounds	Divorce can be granted on several grounds, including adultery, cruelty, desertion, conversion, mental disorder, venereal disease, and irretrievable breakdown of marriage.
Jurisdiction	The district court where the couple last resided together has jurisdiction over divorce cases.
Residency requirements	At least one spouse must have resided in India for a minimum of six months before filing for divorce.
Waiting period	There is a mandatory waiting period of six months after filing for divorce, during which the court may attempt to reconcile the couple.
Separation agreement	The couple may try to reach a separation agreement, which will then be reviewed and approved by the court.
Mediation	The court may suggest mediation as a way to resolve disputes and reach a settlement.
Contested vs. uncontested divorce	Divorce can be either contested or uncontested. In a contested divorce, the court will hold a trial and decide on the terms of the divorce. In an uncontested divorce, the couple agrees on all terms, and the court simply approves the agreement.
Alimony	The court may order one spouse to pay alimony to the other, depending on various factors such as the duration of the marriage, the earning capacity of each spouse, and the standard of living during the marriage.
Child custody and support	The court will make decisions regarding child custody and support based on the best interests of the child. Both parents have a legal obligation to provide financial support for their children.
Appeal	Either spouse can appeal the decision of the district court to a higher court if they are not satisfied with the ruling.

In India, marriage is deeply revered as an institution, providing harmony and stability among individuals. However, despite this reverence, a comprehensive framework for divorce has been established by the governing bodies. All laws pertaining to divorce take into consideration the sentiments of different religious groups and encourage efforts towards reconciliation. Upon reviewing the various legislations concerning divorce, it can be concluded that divorce can be sought through three primary avenues: fault-based grounds, mutual consent, and recognized customs. It is also noteworthy that in recent years, divorce can be sought on equitable grounds, where parties convince the court that the continuation of the marriage would be unjust for them and those associated with them. Ultimately, the laws concerning marriage and divorce will continue to evolve alongside society's changing perceptions of marriage and divorce.

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As of 2024, Following are the New Rules for Divorce

GROUNDS FOR DIVORCE	PREVIOUS LAW	NEW LAW
Adultery	Only the spouse who was cheated on could file for divorce	Both spouses can file for divorce
Mental/Physical Cruelty	Includes physical violence, harassment, and mental torture, but did not have a clear definition	Includes physical violence, harassment, and mental torture, but now also includes withholding financial support or denying access to a child
Desertion	Must have been for a continuous period of 2 years	Reduced to a continuous period of 1 year
Conversion	Not recognized as grounds for divorce	Recognized as grounds for divorce
Irretrievable Breakdown	Not recognized as grounds for divorce	Recognized as grounds for divorce, but requires a one-year separation period

Procedure for Divorce under the Hindu Marriage Act, 1955

Solicitation for Divorce grounded on Fault Grounds - Any two persons who belong to the Hindu, Jain, Sikh or Buddhist religion can get married as per the Hindu Marriage Act, 1955 by solemnization of marriage as per Section 7 of the Act. On fulfillment of all the conditions handed under Section 5 a marriage is said to be a valid marriage. Divorce can only be sought in cases of a valid marriage. In the Hindu religion, marriage has a sacramental value and it's believed that the connubial bond formerly made cannot be undone, rather, it's believed to live indeed after the death of the parties. Thus, the conception of divorce was missing in traditional Hindu law. The Hindu Marriage Act brought radical changes in traditional Hindu law as it for the first time handed for the remedy of divorce which could be sought only on the base of brief grounds handed under Section 13 of the Act. The following grounds which are grounded on marital guilt are available to both parties under Sections 13( 1) and 13( 1A) of the Act-

Where the spouse has committed infidelity or,
Where the spouse has committed internal or physical atrocity or,
Where the spouse has deserted the applicant for a nonstop period of 2 years or,
Where the spouse is suffering from an unsound mind to such an extent that it'll not be reasonable to anticipate the applicant to live with the spouse or,
Where the spouse is suffering from any venereal complaint which is transmissible in nature or,
Where the spouse has renounced the world or,
Where the spouse has not been heard of for a period of 7 years or further by those people who naturally would have heard of him, had he been alive or,
When there has been no cohabitation between the parties for a period of one time or overhead after the end of a decree of judicial separation under Section 10 of the Act or,
When there has been no cohabitation between the parties for a period of one time or overhead after passing of a decree of reparation of marital rights under Section 9 of the Act.

The Act also provides 4 grounds that are specifically available to women under Section 13( 2), these grounds are as follows-

The husband entered into a polygamous marriage before the inception of the Act and similar woman
Is still living after the inception of the Act or,
The husband is shamefaced of rape, sodomy or animalism after the solemnisation of marriage or,
Where a decree or an order of conservation has been passed under Section 18 of the Hindu Adoption and Marriage Act, 1956 or Section 125 of the Code of Criminal Procedure, 1973 against the husband and the cohabitation has not proceeded between the consorts from the date of similar decree or order or,
The woman can repudiate the marriage before attaining the age of 18 years when the marriage has been praised before she attained the age of 15 years.

Rather than filing an action like in a normal civil suit a solicitation is presented to the district court as per Section 13 read with Section 19 of the Hindu Marriage Act. In the solicitation, the petitioner alleges the data to show that grounds of divorce live hence, making the applicant entitled to divorce, the burden of proving the actuality of the ground of divorce lies on the applicant. Preservation of the institution of marriage is the duty of the state and thereby, connubial ties are always tried to be saved wherever possible thence, they aren't allowed to be fluently disassociated.

Divorce Procedure grounded on Mutual Agreement Hindu Marriage Act, 1955: It also allows the parties to seek divorce under section 13B grounded on the collective agreement of both parties. The provision was added by the 1976 Amendment Act and the given provision applies both retrospectively and prospectively. The provision directs that parties have to file a common motion on the grounds that they've been living independently for one time or further and that they've mutually agreed to seek divorce.

The parties will also file an alternate motion within 6 to 18 months from the date of the first motion. This period of 6 to 18 months is also honored as a cooling-off period wherein, parties will try to break their differences. The explanation behind the cooling-off period is to avert any cases wherein, the motion of divorce is filed as an impulsive act, style or a brainwave.

However, the alternate motion has not been filed within the given period the solicitation will fail as a general rule, If the plaint is withdrawn by either of the parties within 6 to 18 months or wherein. Still, if the alternate motion is again made within the cooling-off period the court shall interrogate into the probity behind the matters averred in the solicitation and on being satisfied by the verity of similar matters pass a decree of divorce.

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Procedure for Divorce under The Dissolution of Muslim Marriage Act, 1939: The Hanafi Code of Muslim law does not provide a remedy in favor of women seeking a divorce. However, the Hanafi justices have established that in cases where difficulty arises under Hanafi law, it is permissible to apply the principles of Maliki, Shafi'i, or Hanbali Law. The Dissolution of Muslim Marriage Act, 1939, is based on the Maliki School of Law, which protects the interests of Muslim women in their right to seek divorce.

Prior to the enactment of this Act, women were able to dissolve their marriages under certain circumstances through judicial remedies, as stipulated in Section 5 of the Muslim Personal Law (Shariat) Application Act, 1937. This particular remedy, known as "Faskh," was granted on grounds such as cruelty, discretion, incompetence, and other grounds recognized under Muslim law. However, the practice of "Faskh" was repealed by the Dissolution of Muslim Marriage Act, 1939.

Currently, the judicial remedy for divorce is provided under Section 2 of the Dissolution of Muslim Marriage Act, 1939, which outlines nine grounds for a Muslim woman to seek a decree of dissolution of marriage. These grounds include:

The whereabouts of the husband haven't been known for a period of 4 years incontinently antedating the donation of the plaintiff, Section 3 of the Act also requires serving of a notice on the legal heirs at law of the husband if the dissolution of marriage is sought on this ground. The notice should be served on the maternal uncle and family indeed if they aren't legal heirs at law. As per Section 2( ix)( b), if the decree is passed on the given ground it shall not take effect till a period of 6 months within which the husband can appear in court and start performing his connubial scores. or,
The husband when fails to maintain his wife for a period of 2 years or,
The husband, when doomed to imprisonment for a period of 7 years or further, still, in this case, it's imperative that the judgment should have come final as declared in section 2( ix)( a). or,
The husband has failed to perform his connubial scores for a period of 3 years without any reasonable cause or,
The husband is impotent at the time of marriage and continues to remain so. On the operation of husband under section 2( ix)( c), he'll be given a period of one time to prove that he has desisted to be impotent or,
The husband when is insane for a period of 2 years or when he's suffering from a malign venereal complaint or,
The woman is entitled to repudiate her marriage before attaining the age of 18 years if she was given in marriage by her father or guardian before she attained the age of 15 years, this is also known as the “ option of puberty ”. The contingency to the provision provides that the marriage shouldn't have been perfected or,
The husband treats her with atrocity. The Provision also provides six specific elucidated circumstances which may constitute atrocity. These circumstances relates to assault, association or comparison with a woman who leads an immoral life or when the woman is forced to lead an immoral life, or if the woman isn't treated inversely in comparison to other women, or if she's stopped from exercising rights over her property and if she's stopped from professing her religion. or,
The Act also allows divorce on any other ground which is a valid ground for dissolution of marriage under Muslim law. This is a residuary clause.

Furthermore, it's imperative to point out that section 4 of the Act provides that conversion of the woman into another religion or repudiation of the Muslim religion won't ipso facto dissolve the marriage. Still, if shere-converts to her former faith also in similar cases marriage will be dissolved automatically. It's material to note that if the husband renounces the Muslim religion or converts to another religion the marriage automatically stands dissolved. To gain relief of divorce under the 1939 Act a civil suit will be filed by way of donation of the complainant where the burden of evidence will remain on the woman to prove the given grounds to gain the relief of divorce. The court on being satisfied will pass a decree of dissolution of marriage in the given case. It's also material to note that the woman can also seek relief through a family court where it falls within the governance of a family court.

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Procedure for Divorce in the Divorce Act, 1869

The Divorce Act, 1869 applies whether the husband or the wife professes Christian religion. Generally, it's the district courts that have jurisdiction to entertain desires regarding divorce by virtue of section 4 of the Act. Section 10 provides that either party can seek relief of divorce on the basis of multiple grounds handed by the donation of a solicitation to the district court. The grounds given under section 10 are also grounded on the fault proposition wherein, one party gets entitled to divorce due to the presence of marital guilt or due to the fault on the part of the other party. The following are the grounds handed under section 10-

The spouse has when committed infidelity or,
The spouse when ceases to be a Christian by converting to another religion or,
The spouse is when suffering from illness of mind for a nonstop period of 2 years or further or,
The spouse is when suffering from a venereal complaint that's transmissible in nature for a period of 2 years or further or,
When the spouse has not been heard of for a period of seven years by those people who naturally would have heard of him had he been alive or,
When the marriage has not been perfected due to wilful turndown by the spouse or,
Where a decree for reparation of marital rights has been passed but the same has not been complied with by the spouse for a period of 2 years or further or,
The spouse has when deserted the applicant for a period of 2 years or,
The spouse has treated the applicant with atrocity. Cruelty then can be both of physical and internal nature or,
Section 10( 2) also provides that if the husband is set up to be shamefaced of rape, sodomy or animalism also the woman will be entitled to seek divorce.

It's necessary to establish any one of the given grounds in the solicitation presented before the distinct court, it's the applicant on whom the burden of evidence to prove the actuality of the ground lies. Section 10A of the Indian Divorce Act allows for dissolution of marriage by mutual consent. Both parties can jointly petition the District Court if they have been living separately for two years or more, unable to reconcile, and mutually agree to dissolve the marriage. After six months but within eighteen months of filing the petition, if both parties still wish to proceed and the court is satisfied with the petition's validity, a decree dissolving the marriage may be issued, effective from the date of the decree.

Procedure for divorce in the Special Marriage Act, 1954

The Special Marriage Act, 1954, regulates inter-religious marriages and establishes a proper procedure for the registration of marriages under any other law. When parties from different religious backgrounds marry under the Special Marriage Act, 1954, divorce among them is governed by Chapter VI of the Act. It's important to note that any marriage celebrated under the Foreign Marriage Act, 1969, is also dissolved according to The Special Marriage Act, 1954, by virtue of Section 18 of the Foreign Marriage Act, 1969.

Divorce under the Act is sought by filing a petition to the district court based on grounds specified in Section 27 of the Act. The grounds for divorce are as follows:

Spouse has when committed infidelity or,
Spouse has when vacated applicant for a nonstop period of 2 years or,
When the spouse has been doomed to the discipline of imprisonment for a period of 7 years or further or,
Spouse when has treated the applicant with atrocity or,
When the spouse has been suffering from an unsound mind to such an extent that the applicant can't be nicely anticipated to live with the spouse or,
When the spouse has been suffering from a transmissible venereal complaint or,
When the r has not been heard of for a period of seven years by those people who naturally would have heard of him had he been alive.
Section 27( 2) provides that when the cohabitation between the consorts has not been processed for a period of one time or overhead after the decree of judicial separation or reparation of marital rights has been passed by the court.

The woman has been given the exclusive right to claim divorce under section 27( 1A) on the following grounds-

The husband is convicted of rape, sodomy and animalism after the solemnisation of marriage or,
Where a decree or an order of conservation has been passed under section 18 of the Hindu Adoption and Marriage Act, 1956 or section 125 of the Code of Criminal Procedure, 1973 against the husband and the cohabitation has not proceeded between the consorts from the date of similar decree or order.

Under Sec 28, Divorce by mutual consent. a petition for divorce may be presented to the district Court by both the parties together on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.

29. Restriction on petitions for divorce during first one year after marriage. No petition for divorce shall be presented to the district Court unless at the date of the presentation of the petition one year has passed.

Divorce Procedure under Parsi Marriage and Divorce Act, 1936

The Parsi Marriage and Divorce Act, 1936 was enforced to regulate marriages and divorces among Parsis. The Act provides for the creation of special courts at the quarter position dealing simply with Parsi marriages; after the creation of family courts there's no specific need for similar forums. The relief of dissolution of marriage under this Act is claimed through the institution of a suit by the donation of a complainant. In the given Act the courts must insinuate the register under section 10 regarding the dissolution of marriage. The marriage can be dissolved on the base of the fault grounds given under section 32 of the Act which are as follows-

When marriage isn't consummated for a period of one year after its solemnization due to wilful turndown by the defendant or,
When the defendant suffers from an illness of mind. Then, divorce can be sought if the defendant was of unsound mind at the time of marriage given that the plaintiff was unaware of the fact at the time of marriage and that he has presented the plaint within a period of three years from the date of solemnization of marriage. Divorce can also be sought on the ground of unsoundness if the condition of unsoundness is developed after the date of marriage and it continues to continue for a period of two years or more or,
if the defendant was pregnant at the time of the marriage with the offspring of someone other than the plaintiff or,
if the defendant commits adultery, unnatural offence, rape or bigamy. The provision also provides for a limitation period of two years for the presentation of the plaint on the given ground or,
if the defendant treated the plaintiff with cruelty or, caused voluntary grievous hurt to the plaintiff or,
if the defendant is sentenced to the punishment of imprisonment for a period of seven years or more or,
if the defendant has deserted the plaintiff for a period of two years or,
if there has been no cohabitation between the parties for a period of one year after an order of separate maintenance has been passed by the courts or,
if the defendant ceases to be Parsi or converts to another religion.

Section 31 of the Act provides that, the marriage can also be dissolved on the grounds of the defendant not being heard of for a period of seven years or further by those people who would have heard of him naturally had he been alive. Section 32A of the Act provides that the marriage can be dissolved on the ground of non-resumption of cohabitation between the consorts for a period of one year or further after the decree of reparation of marital rights or judicial separation has been passed by the courts. Sec 32B Divorce by mutual consent under the Parsi Marriage and Divorce Act

It allows both parties to file a suit for divorce together, whether their marriage was solemnized before or after the commencement of the Parsi Marriage and Divorce (Amendment) Act, 1988 (5 of 1988). The grounds for such divorce include: Living separately for a period of one year or more, Inability to live together and Mutual agreement that the marriage should be dissolved.

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Frequently Asked Questions about Mutual Divorce

Q1) When can the divorce by mutual consent be filed?

A1) The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage. They have to show that they have been living separately for a period of one year or more before the presentation of the petition for divorce and that during this period of separation they have not been able to live together as husband and wife.

Q2) Where to file the divorce petition?

A2) In the family court of the city / district where both the partners lived together for the last time, which was their matrimonial home and such a petition is filed by a divorce lawyer.

Q3) How to file divorce petition by mutual consent? What happens in the court?

A3) The divorce petition is in the form of an affidavit, which is to be submitted to the family court. After the filing of the petition and recording the statement of both the parties, the court generally adjourns the matter for a period of 6 months. After six months the parties have to present themselves again in the court for making a second motion confirming the mutual consent filed earlier. It is only after this second motion that a decree of the divorce is granted by the court.

Q4) Can any one party withdraw the mutual consent petition after filing in the court? What will happen by that?

A4) According to the divorce laws in India, during this period of 6 months when the petition is pending in the court, any of the partners is fully entitled to withdraw the mutual consent by filing an application before the court stating that he/she does not wish to seek divorce by mutual consent.

Q5) In such circumstances, the court grants no divorce decree. What can the other partner do under such circumstances?

A5) There is no option available to the other party to such circumstances except to file a normal petition for divorce under the provisions of the Section 13 of the Hindu Marriage Act, 1950. As far as divorce rules in India are concerned in such a situation divorce can be granted only on certain specified grounds like cruelty; desertion; voluntary sexual inter-course with another person; the other spouse being of unsound mind; conversion of religion by the other spouse; Leprosy; venereal disease; a spouse having renounced the world or being missing for a period of more than 7 years. These circumstances or we can say these situation are very crucial for divorce rules in India

Q6) Can the spouse consent for remarriage without getting divorce from the existing partner?

A6) Divorce rules in India clearly states that remarriage without getting divorce is a punishable offense with seven years’ imprisonment.

Q7) If either of the spouses is not heard for a long time, should the divorce be applied?

A7) If there is proof of the absence of one spouse without any information to the other spouse about his whereabouts for a continuous seven years period, a petition should be filed in this regard in the court.

Q8) When do divorced persons remarry?

A8) Depending on the nature of decree, after the expiry of three months from the date of decree if no notice of appeal is received by the person remarrying from the other person.

Q9) What are the costs involved in getting divorce by mutual consent?

A9) According to the divorce rules, if you hire a divorce lawyer, it will be somewhere from Rs. 25,000 to Rs. 75,000. But if you get the documentation done by us and file on your own without a divorce lawyer, the cost will be very low. You will not have any problem in filing your petition, and you will save a lot of money.

Q10) How much time does the whole divorce process in India take from filing the mutual consent petition in the court till the passing of the decree (judgment) by the court?

A10) It takes from six months to one year from the date of filing of the petition. It varies from case to case & place to place.

Frequently Asked Questions About Contested Divorce

Q1) What are the various steps involved in seeking a contested divorce?

A1) With a contested divorce, spouses will have to go through numerous steps before the divorce is finalized, including:

prepare, file and serve (deliver) the divorce petition (legal paperwork asking for the divorce and stating the grounds for the breakdown of the marriage)
respond to the petition
interview and hire an attorney
engage in “divorce discovery” – the information gathering process, which involves various legal procedures to get information from your spouse and third-party witnesses (e.g., written questions, subpoenas, and depositions)
pre-trial legal motions and hearings
settlement proposals and negotiations between attorneys
if settlement fails, prepare for trial
complete a court trial
Appeal, if you dispute the trial judge’s decision(s).

During the settlement phase, spouses are often unable to resolve issues. Although the divorce judge may encourage spouses to work things out, when that doesn’t happen the next step is divorce court. During trial, both spouses present witnesses, and their lawyers cross-examine the witnesses and present closing arguments. After the trial is over, the court will issue a final order memorializing all of the judge’s decisions, and finalize the divorce.

Q2) What is the cost involved in getting a contested divorce?

A2) Divorce Lawyers tend to charge fees for appearing in court and doing any other work. Depending on how intensely it is fought, therefore, a divorce may cost anywhere from the low ten thousands to lakhs of rupees.

Q3) What are different constraints regarding alimony?

A3) The right of maintenance extends to any person economically dependent on the marriage. This will include, therefore, either spouse, dependent children or even indigent parents. The claim of either spouse (though, in the vast majority of cases, it is the wife), however, depends on the husband having sufficient means. When deciding how much alimony is to be paid, the courts will take into account the earning potential of the husband, his ability to regenerate his fortune (in case, say, the property is given to the wife) and his liabilities. In case either spouse is unable to pay for the divorce, these expenses would also be paid by the spouse that does have an income.

Various constraints determining the alimony are:

The age of the person entitled to receive the alimony.
The earnings and current financial status of the spouse entitled to pay the alimony.
The failing health or a medical condition of one of the spouses who is going to receive the alimony may act in favor of him or her. They can claim a larger alimony on the basis of their failing health.
The spouse that retains custody of the child would be entitled to either pay lesser alimony or be entitled to a greater amount while the child is a minor.

Q4) What are the provisions relating to child custody?

A4) Courts usually agree to the decision of the parents in a mutual consent divorce, the courts are expected to see to the best interest of the child. In a contested divorce, the courts will examine the ability of the mother or father to be a parent to the child, for example. Money is not usually a matter that is considered. Non-working mothers are regularly given custody of their children, but fathers are expected to provide financial support. This is one of the types of divorce in India.

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Divorce Rules In India: Everything You Should Know

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