Family Law

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Going through a divorce is one of the most difficult experiences a person can face — emotionally and legally. Yet millions of couples in India navigate this process every year, often without knowing their rights or the exact steps involved.

This guide explains the complete divorce procedure in India — from the types of divorce available, to the laws that apply, the court process, and what happens with maintenance and child custody. Whether you are considering a mutual consent divorce or a contested one, this article will give you the clarity you need.

Quick Answer: How long does divorce take in India? Mutual consent divorce: minimum 6 months (can be waived by court) to about 18 months. Contested divorce: 3 to 5 years on average, sometimes longer. The timeline depends on the court’s workload, cooperation between parties, and complexity of disputes over property, maintenance, or child custody.

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1. Types of Divorce in India

Indian law recognises two main types of divorce, each with a different procedure and timeline.

A. Mutual Consent Divorce

This is when both husband and wife agree to end the marriage. It is faster, less expensive, and less stressful than a contested divorce. Both parties file a joint petition before the court.

Governed by: Section 13B of the Hindu Marriage Act, 1955 (for Hindus, Buddhists, Sikhs, Jains); Section 28 of the Special Marriage Act, 1954 (for inter-religion or civil marriages).

B. Contested Divorce

This is when one spouse files for divorce and the other does not agree, or when the parties cannot agree on terms such as maintenance, child custody, or property division. It is a longer and more complex process.

Governed by: Section 13 of the Hindu Marriage Act, 1955, or the relevant personal law applicable to the parties.

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2. Legal Grounds for Divorce in India

Under Section 13 of the Hindu Marriage Act, 1955, a spouse may seek divorce on the following grounds:

Ground for Divorce	Applicable Law / Section
Adultery	Section 13(1)(i) — HMA 1955
Cruelty (mental or physical)	Section 13(1)(ia) — HMA 1955
Desertion for 2+ years	Section 13(1)(ib) — HMA 1955
Conversion to another religion	Section 13(1)(ii) — HMA 1955
Mental disorder / unsound mind	Section 13(1)(iii) — HMA 1955
Leprosy (virulent & incurable)	Section 13(1)(iv) — HMA 1955
Venereal disease (communicable)	Section 13(1)(v) — HMA 1955
Renouncing the world (sannyasa)	Section 13(1)(vi) — HMA 1955
Not heard alive for 7+ years	Section 13(1)(vii) — HMA 1955
Mutual consent (both agree)	Section 13B — HMA 1955

Note for Non-Hindu Marriages: Muslim divorces are governed by Muslim Personal Law (Shariat) Application Act, 1937. Christian divorces follow the Divorce Act, 1869. Parsi divorces are under the Parsi Marriage and Divorce Act, 1936. Inter-religion marriages registered under the Special Marriage Act, 1954 are governed by that Act.

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3. Step-by-Step Divorce Procedure in India

Mutual Consent Divorce — Step by Step

Step 1 — Joint Petition Both spouses sign and file a joint petition before the Family Court (or District Court) having jurisdiction — usually where the couple last lived together.

Step 2 — First Motion The court records the statements of both parties. This is called the “first motion.” The court grants a cooling-off period — originally 6 months, though the Supreme Court (Amardeep Singh v. Harveen Kaur, 2017) ruled courts can waive this if reconciliation is impossible.

Step 3 — Cooling-Off Period The 6-month period is meant for possible reconciliation. Either party can withdraw the petition during this time. If neither withdraws, the case moves to second motion.

Step 4 — Second Motion Both parties appear again before the court to confirm their decision. The court verifies the petition, checks that consent is free and genuine, and that terms (maintenance, child custody, property) are settled.

Step 5 — Divorce Decree If satisfied, the court passes the decree of divorce. The marriage is legally dissolved from this date.

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Contested Divorce — Step by Step

Step 1 — Filing the Petition The petitioner (either spouse) files a divorce petition before the Family Court, stating the grounds for divorce. The court issues a summons to the other spouse (respondent).

Step 2 — Response / Written Statement The respondent files a written reply to the petition, either contesting the grounds or raising counter-claims.

Step 3 — Mediation Courts often direct both parties to attempt mediation before proceeding. A mediator tries to help the couple reach a settlement — either reconcile or agree on terms of divorce.

Step 4 — Evidence & Arguments If mediation fails, both parties present their evidence — documents, witnesses, affidavits. The court hears arguments from both sides’ lawyers.

Step 5 — Judgment The court pronounces its judgment. If divorce is granted, it passes a decree of divorce. Either party may appeal to the High Court within 90 days.

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4. Maintenance Rights During and After Divorce

Maintenance (also called alimony or spousal support) is one of the most contested aspects of divorce proceedings. Indian law provides for maintenance under multiple statutes:

Type of Maintenance	Applicable Law	Key Points
Interim Maintenance (during case)	Section 24 — HMA 1955	Either spouse can claim. Amount based on income and needs.
Permanent Alimony (post-divorce)	Section 25 — HMA 1955	Court decides based on income, property, conduct, and standard of living.
Maintenance for wife and children	Section 125 — CrPC	Applies to all religions. Fast-track remedy. Even unmarried partner if marriage is proved.

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5. Child Custody After Divorce

When a marriage ends, the court decides custody of minor children based on the paramount principle: the welfare and best interests of the child.

Indian courts recognise three types of custody arrangements:

• Physical Custody — The child lives primarily with one parent (the custodial parent).
• Legal Custody — The right to make decisions about the child’s education, health, and religion. Can be shared jointly.
• Joint Custody — The child spends time with both parents on a defined schedule.

Key Law: Guardians and Wards Act, 1890 + Hindu Minority and Guardianship Act, 1956 For children under 5 years, custody is generally given to the mother unless there are compelling reasons not to. The court may appoint an independent guardian for the child’s interests. Visitation rights are always granted to the non-custodial parent unless there is a demonstrated risk to the child’s safety.

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6. Documents Required for Divorce Petition

Whether you are filing for mutual consent or contested divorce, the following documents are generally required:

• Marriage certificate or proof of marriage (wedding photos, invitation cards, witness affidavits)
• Address proof of both spouses (Aadhaar card, voter ID, passport)
• Identity proof of both spouses
• Proof of income (salary slips, IT returns) — relevant for maintenance claims
• Evidence of grounds for divorce (for contested cases) — medical records, police complaints, witness statements
• Birth certificates of children (if applicable)
• Proof of failed reconciliation attempts (correspondence, mediation records)

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7. Which Court to Approach for Divorce in India?

Divorce petitions in India are filed before Family Courts, established under the Family Courts Act, 1984. Where a Family Court does not exist (in smaller towns), the District Court or Subordinate Civil Court has jurisdiction.

Jurisdiction is determined by:

• Where the couple last lived together as husband and wife, OR
• Where the wife is currently residing, OR
• Where the marriage was solemnised.

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8. Cost of Divorce in India

The cost of a divorce varies widely depending on whether it is mutual consent or contested, and the city where the case is filed:

Type	Estimated Cost
Mutual Consent Divorce	₹15,000 – ₹50,000 (advocate fees + court fees)
Contested Divorce	₹50,000 – ₹5,00,000+ depending on complexity
Court filing fees	₹500 – ₹2,000 approximately
Free Legal Aid (if eligible)	Available through NALSA / State Legal Services Authority

Free Legal Aid Available: If you cannot afford a lawyer, you are entitled to free legal representation under the Legal Services Authorities Act, 1987. Contact your District Legal Services Authority (DLSA) or visit nalsa.gov.in.

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9. Frequently Asked Questions

Q: Can a wife refuse a mutual consent divorce? Yes. Both parties must genuinely consent. Either spouse can withdraw consent at any time before the final decree is passed (second motion). Courts scrutinise whether consent is free — obtained without force, fraud, or undue influence.

Q: Can I get divorce without going to court? No. Under Indian law, all divorces require a court decree. Even mutual consent divorce requires two court appearances. However, mediation can reduce the number of hearings required.

Q: What happens to property after divorce? There is no automatic 50-50 division of property in India. The court considers contributions of each spouse, maintenance needs, and other factors. Jointly owned property is divided by agreement or court order.

Q: Can NRIs get divorced in India? Yes. If the marriage was solemnised in India or either party is domiciled in India, Indian courts have jurisdiction. NRIs should be aware that a foreign divorce decree may need to be recognised by Indian courts to be valid in India.

Q: What is Section 13B mutual consent divorce? Section 13B of the Hindu Marriage Act allows a couple who have lived separately for at least one year to jointly petition for divorce by mutual consent. Both must agree that the marriage has irretrievably broken down.

Q: Can the 6-month waiting period be waived? Yes. The Supreme Court in Amardeep Singh v. Harveen Kaur (2017) held that the 6-month cooling-off period under Section 13B(2) is not mandatory. Courts can waive it if reconciliation is impossible.

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Need Legal Help with Your Divorce?

19 Law Chambers provides expert legal guidance on family law matters including divorce, maintenance, child custody, and property rights. Our team is experienced in both mutual consent and contested divorce proceedings across Andhra Pradesh and Telangana.

📞 Contact 19 Law Chambers for a Consultation — 19lawchambers.com

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Disclaimer: This article is for general legal education and awareness purposes only. It does not constitute legal advice. Laws may vary based on religion, region, and individual circumstances. Please consult a qualified advocate before taking any legal action.