Divorce Procedure in India (2022)

The laws and divorce procedure in India are governed by the Hindu Marriage Act for marriages solemnized according to Hindu rites and rituals, the Special Marriage Act for inter-religion marriage, the Indian Divorce Act for marriages performed according to Christian rites and rituals, the Parsi Marriage and Divorce Act, the Dissolution of Muslim Marriage Act, the Foreign Marriage Act and the Muslim Women (Protection of rights on divorce) Act, 1986.

With the passage of time, the number of cases of divorce has significantly increased. The root cause of the increase in litigation relating to matrimonial relations is the increasing intolerance of the spouses towards each other, poor communication skills, lack of respect, wrong advice by relatives, etc. to name a few. As per the statistical report of the Mediation Centre, Tis Hazari Courts, Delhi, 63% of matrimonial disputes are settled meaning thereby that the differences between married couples are sorted out by way of communication and understanding. One can check out the lawyers dealing with divorce who can represent the matter in the family court proficiently.

Stepwise Process to Get Divorce in India

A particular framework is designed to be followed for every legal process. And specifically, when it comes to the dissolution of marriage, a lot of obligations are to be met with. The contested divorce procedure in India differs from the uncontested one to a greater extent. The proceeding will be less hectic and financially draining in case of divorce with mutual consent in comparison to the contested divorce. Without beating around the bush anymore, let us start with the stepwise divorce procedure.

Filing the Divorce Petition:-

The foremost step is to initiate the process with a divorce petition. Things to consider while filing the divorce petition are:

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Mutual Consent Divorce:

i. The application for mutual consented divorce will be filed Section 13B of the Hindu Marriage Act, 1955, or Section 32B of the Parsis Marriage or Divorce Act, 1936, Section 10A of the Indian Divorce Act, 1869, or Section 28 of the Special Marriage Act, 1954, depending upon the status of the parties.
ii. While filing a petition for mutual consent divorce, the couple must be separated for at least 1 year and in case of the Indian Divorce Act, the period of separation is 2 years.
iii. A settlement agreement outlining maintenance, property distribution, stridhan, child custody, etc. should be attached to the petition.
iv. After the first statement is recorded, the court gives a time of six months known as the “cooling-off” period. This period can be waived subject to certain conditions.
v. The second statement should be recorded within 18 months of the date of the filing of the petition.

Contested Divorce:

i. When only one party is willing to separate, he/she can initiate the process in the family court by drafting a divorce petition.
ii. A contested divorce can be filed under Section 13 of the Hindu Marriage Act, 1955 or Section 2 of the Dissolution of Muslim Marriage Act, 1939 or Section 10 of the Indian Divorce Act, 1869 or Section 32 of the Parsis Marriage and Divorce Act, 1936.
iii. The petition must be properly drafted with legal grounds mentioned and documents attached.
iv. There should be no condonation of the matrimonial offence.

Documents Required to File a Divorce Petition in India

There are certain necessary documents which one should be prepared with.

1. In case of mutual consent divorce
i. Age, identity proof and address of the petitioners (both husband and wife in case of divorce with mutual consent).
ii. 2 passport size photographs.
iii. Proof of marriage like a Marriage certificate or marriage photographs.
iv. Settlement agreement
v. Proof that the couple has been separated for the time stipulated in the concerned Acts.
vi. Vakalatnama and other affidavits are also submitted along with the petition.

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2. In case of contested divorce
i. Identity documents of the petitioner;
ii. Proof of marriage like a Marriage certificate or marriage photographs.
iii. Documents, if any, to substantiate the ground of divorce taken by the petitioner.
iv. Income tax statements (both husband and wife in case of divorce with mutual consent).
v. Profession and remuneration details of the petitioner (both husband and wife in case of divorce with mutual consent).
vi. Property and assets owned by the petitioner (both husband and wife in case of divorce with mutual consent).
vii. Vakalatnama and other affidavits are also submitted along with the petition.

Service of Summon

During a contested divorce, a summon is sent to the other spouse to inform him/her regarding the divorce petition. The respondent on the receipt of the summon can appear either in person or through counsel on the date set out in the summon. The summon delivered to the other party is available with the date on which he/she has to appear in court in response to the divorce petition. In case, the other spouse doesn’t appear in court on the date of hearing, the petitioner is going to enjoy the opportunity of ex-parte. As per this ex-parte hearing opportunity, the divorce decree will be granted to the petitioner by putting the process to end.

Response

The respondent after appearance gets time to file a reply to the petition of divorce. The respondent in reply has to counter the claims leveled by the petitioner and tell his/her side of the story to the court.

Replication

After the respondent files the reply, the petitioner can file a replication which in layman terms is a reply to the reply filed by the respondent. In the replication, the petitioner counters all the claims leveled by the respondent.

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Trial

All the accusations and evidence will be addressed in the court during married couples. During the trial, both the parties will present their points and evidence with witnesses with the help of their respective divorce lawyers. Thorough evidencing and cross-examination are done to explore every facet of the case.

Interim Order(s)

An interim order is an additional step in the divorce process which is mostly asked for. The dissolution of marriage in India is not an easy process that one can expect to end immediately. This may end in a 6 month period or can take 3-4 years or even more. So in between that period, issues like physical custody of the child or financial crisis may occur for which interim orders are generated by the court for the applicant or the respondent.

Majorly, an application for interim orders is filed for:

i. Maintenance or financial support till the time of final orders.
ii. Custody of the child until the final order.

(Video) Top 10 things you should know before filing divorce

Argument

The most crucial step for a divorce lawyer is the argument stage. The lawyers of both parties are going to argue in the court after evidence to prove their client’s point. Various disputes (child custody, alimony, visitation rights, distribution of assets, property) will also be addressed at this stage.

Final Orders

After going through all these steps and convinced with the arguments and evidence, the court will grant the divorce decree. In case, any of the parties is not satisfied with the court’s decision, it can be challenged in the higher court.

So these are the steps followed to get a divorce in India. For more information and professional consultation regarding matrimonial or divorce matters, our expert divorce lawyers in Chandigarh can be contacted from Monday to Friday between 10:00 am to 6:00 pm and between 10:00 am to 2:00 pm on Saturdays.

This article is written byAnjali Bisht. The author can be contacted via email atanjali@bnblegal.com

(Video) How to take mutual divorce quickly

For more information and professional consultation regarding divorce matters, our expert divorce lawyers in Chandigarh can be contacted from Monday to Friday between 10:00 am to 6:00 pm and between 10:00 am to 2:00 pm on Saturdays.

FAQs

What is the fastest way to get divorce in India? ›

With two divorce process in India, often couples find Mutual Consent the easier way. But the time period for its finalization would also take a min. 18 months.

How Soon Can a divorce be finalized in India? ›

Parties, after filing the divorce petition, have to appear for the first motion. After the first motion is recorded, minimum time of six months is given before the second motion can be filed, when divorce can be finalised.

What is the cost of divorce in India? ›

What is the cost involved? The court fee is nominal at Rs 15, but the bulk is taken up by lawyer's fees. While women can avail of free legal services by getting an advocate from the legal aid cell, private lawyers' fee can vary from Rs 10,000 to Rs 1 lakh, depending on the type of divorce and duration involved.

Can we get divorce in 15 days? ›

It is impossible to file divorce within 15 days of marriage,the limitation is under marriage act is one year and only you can nullify the marriage by filing for nullification within period of one year of the marriage, which is not divorce, the entire nullification proceedings has to be completed within one year if the ...

Is one sided divorce possible? ›

If the wife is not ready for mutual divorce you can go for one sided divorce on cruelity basis. It will be filed under section 13 l i(a)of HMA. Also there are various other basis in HMA that you can opt for filing of one sided divorce.

How long does a one sided divorce take? ›

Advocate Lovkesh Gupta

In India u can get one sided divorce from ur husband but not in 15 days rather it take time minimum 6 months.

What is the time period for mutual divorce? ›

(iii) The period of six to eighteen months time is given in divorce by mutual consent as to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. Mutual consent should continue till the divorce decree is passed.

Can I marry immediately after divorce? ›

After obtaining divorce decree from the family court, you will have to wait till the completion of the appeal period of 90 days after which you can marry again before the concerned marriage sub-registrar.

What can wife claim in divorce? ›

For example, under the Hindu Marriage Act, 1955, both the husband and wife are legally entitled to claim permanent alimony and maintenance. However, if the couple marries under the Special Marriage Act, 1954, only the wife is entitled to claim permanent alimony and maintenance.

Can I marry after filing divorce? ›

Absolutely NOT. Till the time your Divorce proceedings are pending in Court, whether its Contested or Mutual Consent Divorce, you cannot legally marry another person. As a matter of fact, you cannot marry again till the expiry of 6 months from the date of Divorce.

What if couple is separated for 7 years? ›

No. There is nothing in law for automatic Divorce if husband and wife are not living together for 7 years. However, a petition for Divorce on the ground of not living together for 7 years will succeed and Divorce would be granted.

On which ground a husband can file divorce? ›

The husband has a right to file a petition for divorce with or without mutual consent. For the latter, the grounds for filing remain the same as that for a wife. These include cruelty, desertion, conversion, adultery, disease, mental disorder, renunciation and presumption of death.

How many cases can wife file against husband? ›

How many cases can a wife file against her husband? Your wife can file as many cases she wants against husband. Indian laws are in favour of sati savitri image and recently in last 6 years though there have been small changes in favour of men but still lot in favour of women. You are at the mercy of woman.

Who pays the divorce fee? ›

In most cases, the applicant pays the court fee; however, some couples agree to split the court fees between them, particularly if it is a joint application. Helping our clients file their divorce papers is only one of the many family law services at Stowe Family Law.

How much does a divorce cost if both parties agree in India? ›

While there is no fixed rate for lawyers in India, on average, a mutual divorce can cost anywhere between ₹5,000 and ₹50,000. All lawyers take a fee depending on their stature, experience, and skill.

Is alimony mandatory in mutual divorce? ›

Once you have decided to file for divorce by mutual consent, then you can agree to all the terms & conditions. You need not pay any alimony/maintenance unless your wife wants it.

Can I get divorce without any reason? ›

If any of the spouse intends to dissolve their marriage, then the aggrieved can seek the relevant grounds of divorce according to their religion and personal laws. There are specific grounds on which divorce can be granted because court cannot simply grant divorce without seeking any reason.

Is 1 year separation mandatory for mutual divorce? ›

For filing divorce case one separation period is not mandatory but one year is mandatory if both you want to file mutual divorce petition. If you alone want to file divorce petition 1 year separation is not mandatory, you can claim permanent alimony and maintenance for you and your child.

How alimony is calculated India? ›

If alimony is paid on a monthly basis, the Supreme Court of India has established a benchmark sum of 25% of the husband's net monthly income as the sum that should be awarded to the wife. There is no fixed sum for a one-time settlement, but it is usually between one-fifth and one-third of the husband's net worth.

Can Indian court reject divorce? ›

If under any circumstance, the consent has been forced or fraudulently obtained through duress, etc., the judge can deny the divorce petition. Improper Filing: The Indian Courts follow an exhaustive procedural code while dealing with civil cases such as adoption, matrimonial and other familial issues.

What if wife is not giving divorce? ›

If she is not ready for a mutual consent divorce and its even not possible for you to continue anymore, then you can file a petition for Divorce in the Court and you will have to contest the same in the Court. There are two ways of getting a divorce in the Hindu Marriage Act.

What is no fault divorce in India? ›

It means that one spouse no longer needs to prove the other guilty of adultery, "unreasonable behaviour" or desertion, according to AFP report. In absence of such grounds, the couple is forced to live apart for two years before a divorce is granted, or five years if one partner objected to the proceedings.

Is there any automatic divorce in India? ›

there is no procedure for automatic divorce in Indian Law, you may file a domestic violence case against them before magistrate court and claim protection, right to residence, maintenance, child custody and compensation under section 18,19,20,21 & 22 of Protection of Women From Domestic violence act-2005.

Is divorce easy in India? ›

With the latest Supreme Court order, it is time to rejoice for couples seeking a divorce through mutual consent. India is not a very divorce-friendly country both culturally and legally. The divorce rate in India is very low – about 13 in 1,000 marriages, against 500 in 1,000 marriages in the UK.

Can a person marry without divorce in India? ›

No. You cannot get married without getting a divorce order from the court. It is an offence under the Indian penal code to get married while one has got a spouse living. No matter even if the spouse agrees for that.

Is 6 months mandatory for mutual divorce? ›

In cases of divorce by mutual consent, Section 13B(2) of the Hindu Marriage Act, 1955 prescribes a 6 month 'cool off' or waiting period after the filing of the divorce petition before the matter proceeds, in order to give the couple one last chance at reconciliation.

Is 6 months necessary for divorce? ›

The concept of divorce by mutual consent was introduced by way of amendment in the year 1976. Section 13B (2) of the Hindu Marriage Act, 1955 (the Act) contains a bar to divorce being granted before six months elapsing after filing of the divorce petition by mutual consent.

How easy is a mutual divorce? ›

It is a decision taken by mutual consent, and hence, the process is a lot smoother than divorce by other means. As per the Hindu Marriage Act, 1955, both spouses have the right to file for the dissolution of their marriage. Furthermore, the Act also allows both parties to file for a mutual consent divorce together.

What are the documents required for mutual divorce in India? ›

Documents Required for Divorce with mutual consent

Address Proof - Husband and Wife. Four Photographs of Marriage. Income tax Statement of last 3 years. Details of profession and Income (Salary slips, appointment letter)

Is second marriage easy in India? ›

Yes and no. There are people who are very happy with their second marriage and others who land up filing for a divorce again. However Indian society has changed in its views on divorce and remarriage. Formerly second marriages were considered taboo and people who get a divorce were thought of in a very poor way.

Why do people remarry after divorce? ›

But, if you happen to fall in love with someone again, societal judgements and emotional pain can prevent you from finding happiness once again. However, marrying a second time can not only be refreshing but will also provide you with the physical and emotional support your previous marriage failed to do.

Who loses more in a divorce? ›

Marriage is connected to a longer lifespan for both men and women. While both genders see a rise in deaths following divorce, the rate for men is 1,773 per 100,000, compared to 1,096 for women.

Can a working wife get alimony? ›

Even though your spouse has a full-time job, they are still entitled to ask for spousal support. They can ask for support once a legal separation or divorce is filed with the court. If the judge deems it necessary, he or she can order you to pay spousal support even while your divorce is pending.

How much money wife gets after divorce? ›

If the alimony is being paid on a monthly basis, the Supreme Court of India has set 25% of the husband's net monthly salary as the benchmark amount that should be granted to the wife. There is no such benchmark for one-time settlement, but usually, the amount ranges between 1/5th to 1/3rd of the husband's net worth.

What happens if husband is not ready for divorce? ›

You can file a petition under section 13 of Hindu marriage act on court, on the ground of cruelty. And you have to plead and prove the cruelty, and you can obtain decree of divorce, even though your husband is not ready. Yes you can go for divorce at this stage even if your husband or in laws dont agree for the same.

Can you get a divorce without going to court? ›

It is possible to get divorced without going to court, as long as your partner agrees to the divorce and the reasons why. However, it is still possible that you will need to go to court to decide what happens to money, property and children.

Can a man remarry without divorce? ›

No, it is illegal. Under Section 494 of the Indian Penal Code, if a person marries a second time, without a divorce, while their spouse is alive, the marriage is considered bigamy, which is a punishable offense.

Is it better to separate or divorce? ›

If you don't see any financial benefit from a legal separation and are certain you want to end your marriage, it might be best to go straight to a divorce. Otherwise, you'll spend time and money getting a legal separation only to have to go through the process all over again to get a divorce.

In which case alimony is not granted? ›

Alimony is generally not granted to the seeking spouse if he or she is already receiving support during the time of divorce. Although the rewarding of alimony can be revised in such events based on the arguments for claiming the support.

Can a working woman claim alimony in India? ›

In the case of working women, if the court is assured that the wife's earnings are comparatively lower than her husband's, she is also eligible to claim alimony from her husband. The amount is paid to maintain a basic standard of living like her husband.

How many years of separation is equal to divorce in India? ›

When the couples agree to a divorce, the courts will consider a divorce with mutual consent as per. Section 10A of Indian Divorce Act, 1869, requires the couple to be separated for at least two years, the couple only needs to provide that they have not been living as husband and wife during this period.

What are the 7 grounds of divorce? ›

These grounds are such as desertion, adultery, cruelty, venereal disease, leprosy, insanity, and conversion. Under sub-clause (2) of section 13 of the Act, there are available four ground on which the wife alone can file a divorce petition.

What is the most common reason for divorce? ›

According to various studies, the three most common causes of divorce are conflict, arguing, irretrievable breakdown in the relationship, lack of commitment, infidelity, and lack of physical intimacy. The least common reasons are lack of shared interests and incompatibility between partners.

What is the bail amount for 498a? ›

On compliance of afore-noted consent directions, in the event of arrest, petitioners would be released on bail by the I.O. on their furnishing a personal bond in the sum of Rs. 10,000/- each with one surety each in the like amount to the satisfaction of I.O.

What is mental harassment by husband? ›

Mental harassment against the husband by the wife and in-laws can take the form of the following: constant belittling regarding physical appearances or employment status, subjection to anger and rage, or. having an extra-marital affair or an adulterous relationship.

What are the rights of wife? ›

Right to live with dignity and self-respect: A wife has the right to live her life with dignity and to have the same lifestyle that of her husband and in-laws have. She also has right to live free from any mental or physical torture. Right to child maintenance: Husband and wife must provide for their minor child.

Is it possible to get divorce within a month in India? ›

No, as per different divorce laws in India, to apply for a mutual consent divorce, the couple must have lived separately for at least one year. Therefore, couples cannot file a petition for mutual divorce within 6 months of getting married.

How many days it takes for mutual divorce in India? ›

It takes 6 months and two motions. In first motion the lawyer will file a petition signed by both parties in court. Court will accept it. After this a second motion is filed after 6 months and divorce is final.

Can I get divorce without going to court in India? ›

No it is not possible for you to take divorce legally without going to court. If both parties are ready than go for Mutual Consent Divorce in which case you will have to appear in court only 4 times on different dates. If your marriage is legally solemnized than only way for legal divorce is through Court.

How can I speed up my divorce case in India? ›

Please approach high court seeking direction to family court to dispose off the case at earliest. Also you can file application under Section 21b of Hindu marriage act seeking for speedy disposal of case. Since you are a woman the divorce proceedings. Will be in your favour.

Is one sided divorce possible? ›

If the wife is not ready for mutual divorce you can go for one sided divorce on cruelity basis. It will be filed under section 13 l i(a)of HMA. Also there are various other basis in HMA that you can opt for filing of one sided divorce.

What is first motion in divorce? ›

The filling of petition for divorce by mutual consent has been divided into two motions: The First motion: The filing of divorce petition by both the husband and the wife is legally known as the "The First Motion Petition for Divorce by Mutual Consent".

Can I marry after filing divorce? ›

Absolutely NOT. Till the time your Divorce proceedings are pending in Court, whether its Contested or Mutual Consent Divorce, you cannot legally marry another person. As a matter of fact, you cannot marry again till the expiry of 6 months from the date of Divorce.

Is 1 year separation mandatory for mutual divorce? ›

For filing divorce case one separation period is not mandatory but one year is mandatory if both you want to file mutual divorce petition. If you alone want to file divorce petition 1 year separation is not mandatory, you can claim permanent alimony and maintenance for you and your child.

Can working wife claim alimony? ›

A working woman is eligible to get alimony depending on her income and living conditions. So, even if the woman is working and there is a substantial difference between her and her husband's net worth, she will still be granted alimony to provide for the same living standards as her husband's.

How long does a one sided divorce take? ›

Advocate Lovkesh Gupta

In India u can get one sided divorce from ur husband but not in 15 days rather it take time minimum 6 months.

What can wife claim in divorce? ›

For example, under the Hindu Marriage Act, 1955, both the husband and wife are legally entitled to claim permanent alimony and maintenance. However, if the couple marries under the Special Marriage Act, 1954, only the wife is entitled to claim permanent alimony and maintenance.

Is 6 months necessary for divorce? ›

The concept of divorce by mutual consent was introduced by way of amendment in the year 1976. Section 13B (2) of the Hindu Marriage Act, 1955 (the Act) contains a bar to divorce being granted before six months elapsing after filing of the divorce petition by mutual consent.

Is 6 months mandatory for mutual divorce? ›

In cases of divorce by mutual consent, Section 13B(2) of the Hindu Marriage Act, 1955 prescribes a 6 month 'cool off' or waiting period after the filing of the divorce petition before the matter proceeds, in order to give the couple one last chance at reconciliation.

Is taking divorce easy in India? ›

With the latest Supreme Court order, it is time to rejoice for couples seeking a divorce through mutual consent. India is not a very divorce-friendly country both culturally and legally. The divorce rate in India is very low – about 13 in 1,000 marriages, against 500 in 1,000 marriages in the UK.

What happens if spouse does not respond to divorce papers in India? ›

State and local rules may vary, but generally, if your spouse failed to respond to your divorce petition within 30 days, you may file a request to enter a default along with a proposed judgment. It may also be allowed when a spouse can't be located for service. The court will set a hearing date and ask that you appear.

What are the stages in divorce case? ›

The procedure of divorce is divided into six stages which are - filing of the petition, service of summons, response, trial, interim orders, and final order.

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