Divorce is the ending of marriage through a legal process by filing a petition in a court of law. When a court passes a divorce decree, it brings an end to the matrimonial cooperation of spouses and therefore terminates all the marriage. The separation of husband and wife also involves the division of property, assets, and the issue of custody of the child.

The concept of divorce did not exist in pre-independent India the way it does today. This was because the concept of marriage was considered to be a very holy one and divorce was a concept that was alien to the mandate of their religion.

British India only had the Divorce Act of, 1869 which provided for the divorce procedure in India for people professing the religion of Christianity. But other than that, there seemed to lack of enactment for the divorce process in India.

This article tells you about the steps involved in the Divorce Procedure in India.


Types of divorce under Hindu law

  • Mutual Divorce
  • Contested Divorce

Mutual Divorce

Under the Hindu Marriage Act, Mutual divorce is governed by Section 13-B. As the name suggests, in mutual divorce, both the parties i.e. husband and wife mutually agree and express their consent for peaceful separation. The husband and wife have to predetermine the issues relating to alimony and child custody if any. There are only two requirements for filing a mutual divorce, one is mutual consent and the other is that they have to live separately for at least one year

Contested Divorce

When divorce is initiated by either spouse it is termed as a Contested Divorce. Section 13 of the Hindu Marriage Act, 1955 provides the grounds for filing a contested divorce, some of which are, cruelty, conversion of religion, unsound mind, communicable disease or either spouse being unheard of for more than seven-year.

Irretrievable Breakdown of Marriage

The Marriage Laws Amendment Bill, 2010, which has been passed by the Rajya Sabha but is yet to be passed by the Lok Sabha provides for the insertion of Section 13C in the Hindu Marriage Act which if introduced, shall provide for Irretrievable Breakdown of Marriage. Though the provision has not been enacted formally, the Supreme Court has, in exceptional cases granted a divorce by citing the ground of irretrievable breakdown of the marriage

The Supreme Court has observed “Divorce cannot be granted just on the grounds of irretrievable breakdown of the marriage if the party seeking divorce on this ground is himself or herself at fault. It can be granted in those cases where both the parties have leveled such allegations against each other that the marriage appears to be practically dead and the parties cannot live together.”

Grounds for obtaining a contested divorce

Section 13 of the Hindu Marriage Act, 1955 expounds grounds on which contested divorce can be obtained.

  1. Adultery- It is a criminal offense where either of the spouses is involved in sexual relations with someone out of the marriage.                         
  2. Cruelty- It is defined as a willful act that can cause danger to the body, limb, life or to mental health. It can include causing pain, abusing, and torturing mentally or physically.
  3. Desertion- When a spouse willfully abandons another without any intention of coming back, it is known as Desertion. Desertion for more than two years could be a valid ground for divorce.
  4. Religion Conversion- In a Hindu marriage, if either of the spouses ceases to be a Hindu then it can be considered as a ground for divorce.
  5. Mental Disorder- Mental disorder includes unsoundness of mind, mental illness, or such mental disorder which makes the person abnormally aggressive.
  6. Communicable Diseases and Leprosy- Leprosy is a contagious and chronic disease that causes lesions on skin and nerve damage.
  7. Spouse not heard of- If either of a spouse is not heard of for more than seven years, then it can be considered as a ground for divorce.
  8. Renunciation of the world- Under Hindu Law, the “Renunciation of the world” is a ground for divorce, if either of the spouses has renounced the world and has entered a holy order.

Three other grounds for divorce are available only to the wife which are

  • The husband has been guilty of rape, sodomy, or bestiality.
  • The wife was married before the age of fifteen.
  • A decree or order has been given by the court awarding maintenance to the wife and they have not been living together for more than one year

What are the constituents of divorce?

How are property matters settled?

In case of a mutual consent divorce, the parties are free to decide how they wish to divide their matrimonial properties. However, if there is a lack of consent in the way in which properties are to be decided, the court may assist the parties in the same. Nonetheless, the division can be claimed only of the joint matrimonial property and not of the individual self-acquired property of a spouse. A Hindu woman may claim right over her husband’s property after his death under the Hindu Succession Act, 1956.

Section 125 of the Code of Criminal Procedure provides for maintenance to wives and there exist maintenance provisions even under the Hindu Adoption and Maintenance Act, of 1956. For this, the court will consider the property and the remuneration of the husband.

What about child custody?

The Guardians and Wardens Act, of 1890 is the principal act that determines the aspects of custody and guardianship in India. The custody of a child may be either sole/exclusive (where only one parent has the custody, though the other parent may have visiting rights), shared/joint (where both parents share the custody) or third-party custody (where neither the mother nor the father gets the custody). The custody of children below 5 years of age is usually given to the mother.

Under the Muslim Women (Protection of Rights on Divorce) Act, 1986 the custody of boys below 2 years I have given to the mother and after that to the father but the custody of the daughter remains with the mother.

How much does it cost to get a divorce?

Though the cost of filing a divorce petition is very meager (it differs from state to state, but is usually around INR 100 to INR 250), but the main costs in a divorce proceeding are that of the lawyer. Even the court fees are a very small amount, including the amount for an appeal which, in some cases, may be as less as INR 25. However, the lawyers’ fees may vary depending on the lawyer and the financial capabilities of the client. It is therefore advisable that you clearly understand the fee arrangement from your lawyer before appointing them.

Procedure for mutual consent divorce in India?

STEP 1: Draft a petition stating the reason for seeking a divorce and that both parties have agreed on it.

STEP 2: File the petition jointly through respective lawyers before the family court.

STEP 3: The court after the examination of the petition along with the documents will pass on the order for the recording of the statement on oath.

STEP 4: After this, a cooling period of six months’ time is given to the parties in the hope of their reconciliation.

STEP 5: Post 6 months, if there is no reconciliation, both parties need to appear for the final hearing. (Parties have to appear for the second motion within 18 months from the date of filing the divorce petition.)

STEP 6: In the final hearing, the court passes the divorce decree dissolving the marriage

Procedure for a Contested Divorce in India?

STEP 1: Draft a petition clearly stating the facts and grounds for seeking a divorce. This petition is filed before a family court having jurisdiction along with affidavits, vakalatnama, and documents relevant to the case.

STEP 2: If the court is satisfied after scrutinizing the petition and decides to move with the case, it sends a notice or summons the other party to appear on a decided date along with his/ her lawyer. 

STEP 3: At this stage, the court will suggest parties for mediation and if the mediation fails to resolve the issue, the court will continue with the divorce proceedings.

STEP 4: On a fixed date, both parties will appear before the court, record their statements, submit evidence, get cross-examined, and will present their witnesses if any. Then the counsels from both sides will present their final arguments.

STEP 5: At last, the court on a fixed date will deliver the verdict and pass a divorce decree. The aggrieved party can appeal to the order passed within 3 months of the passing of such order.

What documents are required to file for divorce?

In a petition for divorce, the parties may be required to submit the following documentary proofs:

  1. A validly issued marriage certificate of the couple. Though important, this document is not a condition the precedent for divorce. However, if the same cannot be produced, the couple may have to submit other proofs of the marriage, like the wedding photographs, etc.
  2. Address proofs of each of the parties they are living under different roofs, or address proof of the matrimonial home if they are living together.
  3. Remuneration proofs of the parties may be required for deciding the question of maintenance. This may or may not be supplemented with Income Tax Statements for the past couple of years.
  4. Passport-sized photographs of each party to the divorce.
  5. Proof of attempts of reconciliation between the parties. This may be in the form of correspondence through letters or e-mails or transcripts of telephonic conversations.

 Laws Governing Divorce In India

  • The Hindu Marriage Act (1955)

The Hindu Marriage Act, of 1955 provides for marriage and divorce for Hindus. The Act mentions that Hindus also include Buddhists, Sikhs, and Jains. The Act must be read along with its supplementary legislation, for example, the Hindu Adoption and Maintenance Act, etc.

  • The Special Marriage Act (1954)

This Act applies when two people belonging to two different religions marry each other. As the name suggests, it provides for the special situation of an inter-religious marriage. The existence of such a law is reflective of the progressive and liberal mindset of our lawmakers.

  • The Divorce Act (1869)

This is the Act that governed the divorce of Christians in British India.

  • The Muslim Law

Muslim personal law is governed largely by uncodified customs and practices, also known as the law of Sharia. But mostly, it is governed by the rules enshrined in the Holy Quran. Also, the rules vary slightly for Muslims belonging to the two different sects- Shias and Sunnis.





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