Divorce in India: the law, the process and how long it takes

Which law

Decided by your religion and how you married: Hindu Marriage Act, Special Marriage Act, Divorce Act (Christians), Parsi Marriage and Divorce Act, or Muslim personal law.

Two routes

Mutual consent, where both agree; or a contested petition on a ground the Act allows.

Minimum time

Six months from filing for mutual consent under the Hindu and Special Marriage Acts, unless the court waives it.

Where

The Family Court of the district, or the District Court where there is no Family Court.

India has no single divorce law. A marriage is dissolved under the law that governs it, and that depends on the religion of the spouses and on how the marriage was performed or registered. The law then gives two routes: a divorce both spouses ask for together, and a divorce one spouse asks for against the other, which has to be proved. Everything else on this page, from how long it takes to what happens to the children, follows from those two choices. For a case in Ghaziabad, the divorce lawyer in Ghaziabad page applies this to the Family Court there.

Which law governs your divorce

The Act that applies is fixed by the marriage, not by where you live now. A Hindu couple who married in a temple divorce under the Hindu Marriage Act even if they live abroad; a Hindu and a Christian who married in a court divorce under the Special Marriage Act. Muslim divorce works differently, because talaq, khula and mubarat take effect outside court; it is covered on its own page, Muslim divorce in India.

Mutual consent or contested

Mutual consent needs three things: you have lived separately for the period the Act requires, you cannot live together, and you both agree that the marriage should end. You file one joint petition, and the court grants the decree if both of you still agree at the second hearing. Money, custody and pending cases are settled in writing first, because either spouse can withdraw consent until the decree. The mutual consent divorce page walks through a Section 13B case.

Contested divorce, which people often call a one-sided divorce, is filed by one spouse and has to prove a ground: cruelty, desertion, adultery, conversion, serious mental disorder and the rest. The other spouse can oppose it, and the court decides on evidence. The grounds for divorce in India page sets out every ground under every Act, and one-sided divorce covers what happens when the other spouse refuses or does not appear.

The process, step by step

Mutual consent. The spouses sign a settlement and file a joint petition with their affidavits. At the first motion both appear and their statements are recorded. The second motion is heard at least six months after filing and within 18 months, and the court passes the decree if consent continues. The Supreme Court held in Amardeep Singh v. Harveen Kaur (2017) that the Family Court may waive the six months where the separation period has long passed, mediation has failed and everything is settled.

Contested. The process is a civil trial in a Family Court:

1. The petition, stating the ground and the facts that prove it, and the relief claimed.
2. Notice to the other spouse. The case cannot proceed until service is complete; if the spouse cannot be found, the court can order service by publication.
3. Reconciliation and mediation. The Family Court must first try to settle the dispute (Section 9, Family Courts Act), and most courts refer the parties to a mediation centre. Many contested cases end here as mutual consent petitions.
4. The written statement, and the issues the court will decide.
5. Evidence: each side's affidavit evidence, documents and cross-examination. This takes longest.
6. Arguments, judgment and the decree.
7. An appeal to the High Court within 30 days under Section 19 of the Family Courts Act. A decree passed with the consent of both sides cannot be appealed.

Applications for maintenance, custody and visiting rights can be filed at any stage and are usually decided long before the divorce.

Where to file

Under Section 19 of the Hindu Marriage Act a petition can be filed in the district where the marriage took place, where the other spouse lives, where the couple last lived together, or where the wife lives if she is the one filing; the petitioner's own district is available when the other spouse lives outside India or has not been heard of for seven years. The Special Marriage Act has a similar rule in Section 31. Where a husband files far from the wife's home, the Supreme Court often transfers the case to her district on her application.

How long a divorce takes

A mutual consent divorce under the Hindu or Special Marriage Act cannot be decreed until six months after filing, unless waived, and in practice takes six months to a year once the settlement is signed. Christians wait for two years of separation before they can file for mutual consent. A contested divorce has no fixed timetable and usually takes several years, set by service of notice, mediation, the court's workload and the length of the evidence. There is no legal maximum. The Supreme Court can end a marriage that has broken down beyond repair under Article 142 of the Constitution (Shilpa Sailesh v. Varun Sreenivasan, 2023), but that power belongs to the Supreme Court alone; Family Courts can grant divorce only on the grounds in the Act.

What a divorce costs

The court fee on a divorce petition is small in most states. The real cost is the advocate's fee, which depends on whether the case is mutual or contested, how many related cases are pending between the families, whether one spouse lives abroad, and which court hears it. Ask for the fee in writing before the work begins, and ask what stage it covers. The fees for a mutual divorce article explains how a fixed-fee engagement is usually structured.

Filing without a lawyer

You can file and argue your own case. Section 13 of the Family Courts Act says no party is entitled as of right to be represented by a lawyer, though Family Courts routinely allow it and can appoint a legal expert to assist. A mutual consent petition with a clean settlement is the case most often done in person. A contested case is harder: the petition has to plead the ground properly, and the evidence and cross-examination decide it. Women and children are entitled to free legal services under Section 12 of the Legal Services Authorities Act, 1987, through the District Legal Services Authority at the district court.

Maintenance, alimony and property

There is no division of property on divorce in India; each spouse keeps what is in their own name. The money claims are maintenance during the case (Section 24 of the Hindu Marriage Act, which either spouse can claim, and Section 144 of the BNSS (old Section 125 CrPC) for a wife and children), permanent alimony at the end (Section 25), the return of stridhan, and monetary relief under the Domestic Violence Act. Since Rajnesh v. Neha (2020) both spouses must file affidavits of their income, assets and liabilities, and maintenance runs from the date of the application. The wife's rights in divorce page takes these one by one.

Children

Custody is decided on the child's welfare, not on which parent caused the breakdown. The court can make orders on custody, maintenance and education during the divorce (Section 26, Hindu Marriage Act), and either parent can apply under the Guardians and Wards Act, 1890. Under Section 6 of the Hindu Minority and Guardianship Act, 1956, a child under five ordinarily stays with the mother. In a mutual consent divorce the parents agree the custody and visiting schedule and the court records it.

Remarriage after divorce

Under Section 15 of the Hindu Marriage Act either spouse may remarry once no appeal can be filed against the decree: immediately after a mutual consent decree, which cannot be appealed, and after a contested decree once the 30 days for appeal have passed without one or the appeal has been dismissed. Marrying while an appeal is pending risks a second marriage that is void.

Divorce when a spouse lives abroad

An Indian court can hear the case if the jurisdiction rules point to it, and Family Courts allow statements and evidence by video. A divorce granted by a foreign court is recognised in India only if it passes the test in Y. Narasimha Rao v. Y. Venkata Lakshmi (1991): broadly, it must rest on a ground available under the Indian law under which the couple married, and the other spouse must have taken part in or agreed to the foreign proceedings. The NRI pages cover mutual consent and contested cases.

What has changed recently

• New criminal codes, 1 July 2024. Maintenance under the old Section 125 CrPC is now Section 144 of the Bharatiya Nagarik Suraksha Sanhita, and the 498A offence is now Sections 85 and 86 of the Bharatiya Nyaya Sanhita.
• Irretrievable breakdown, 2023. In Shilpa Sailesh a Constitution Bench held that the Supreme Court can dissolve a marriage that has broken down beyond repair and can waive the six-month wait. It is not a ground before Family Courts.
• Maintenance for Muslim women, 2024. In Mohd. Abdul Samad v. State of Telangana the Supreme Court held that a divorced Muslim woman can also claim maintenance under the general law (now Section 144 BNSS; old Section 125 CrPC).
• Instant triple talaq has been void since Shayara Bano (2017) and an offence since the Muslim Women (Protection of Rights on Marriage) Act, 2019.

Read next

• Grounds for divorce in India under each law
• One-sided divorce in India: process and time
• A wife's rights in divorce: maintenance, alimony, stridhan, home
• Muslim divorce in India: talaq, khula and the 1939 Act
• Mutual or contested divorce: time, cost and evidence

Questions people ask