Divorce in India

The article analyses the divorce laws in India, including religious personal laws, and their validity and recognition. Each religion has its own set of laws relating to marriage and divorce. However, couples can also be governed by the Special Marriage Act that can dicdate such divorce proceedings.

Tue May 03 2022 | Family Law | Comments (0)


Divorce in India is governed under different laws for different religions i.e. Hindu, Sikh, Muslims, Christians etc. The laws formulate the grounds, process and rules of granting a divorce that is acceptable in the eyes of law. Divorce can be filed under two categories namely:  

Divorce by Mutual Consent: This form of divorce is simpler, time-saving and fast, provided all the conditions of a mutually  consented divorce are fulfilled. The utmost requirement here is the mutual consent of both husband and wife to file for divorce. The best way for both the parties is to see all the possibilities mutually and settle issues pertaining to maintenance, child custody, financial arrangements etc.  

Contested divorce: If any of the two parties in marriage intends to dissolve their marriage, then aggrieved party or contesting party has to seek the relevant grounds of divorce in their respective religious law in order to file the case in the court of apt jurisdiction. Here, the parties have to present the evidences and documents to support their case as per the procedure mentioned in the respective Acts. Once it is proved successfully, divorce will be granted by drawing the decree.  

Grounds for divorce under different religions:   Person of Hindu, Sikh and Jain religions are governed by Hindu Marriage Act, Christians are governed under Indian Divorce Act-1869 and the Indian Christian Marriage Act, 1872, Muslims are regulated by Personnel Law of Divorce, Dissolution of Marriage Act, 1939 and The Muslim Women (Protection of Rights on Divorce Act, 1986. Above all, there is a secular law that is open for all the people irrespective of their religion, i.e. Special Marriage Act, 1954. Let us  take a look at the grounds of divorce for following religions under their religious Acts:-   


  In accordance to Hindu Marriage Act, any solemnized marriage can be terminated by a divorce decree, by either of the two spouses filing a  petition on following said grounds:-


There are two categories under Muslim Law:-Extra Judicial Divorce and Judicial Divorce. 

Judicial Divorce: As per Dissolution of Muslim Marriage Act, the woman married under Muslim Law is entitled to acquire a divorce decree on following grounds:-    

Extra judicial divorce: In Islamic law, the husband can dissolve the marriage at will on the ground of irretrievable breakdown in marriage . It is differently known as Talaq, Ila and Zihar. 

  1. Special marriage act:

This Act clearly provides the grounds of divorce as under:- 

  1. Both the parties can start the procedure by filing the petition in the court of appropriate jurisdiction along with affidavits from both the spouses. It is known as first motion petition, which comprises of a joint statement from both the parties stating that they cannot stay together and the irreconcilable reasons behind their intentions. 
  2. In general, the second motion can be filed after the reconciliation period of 6 months only, but this can be waived off by the Supreme Court on serious circumstances of the situation. 
  3. After  6 months elapse, the second motion is to be filed by the parties and they are required to appear in person before the court for respective hearings of the case. 
  4. Once the judge is satisfied that all relevant grounds for the divorce are met, the mutual consent divorce is passed. 
  5. The petition must cover all the significant issues i.e. child custody, alimony, financial arrangement etc. and both the parties should have mutually agreed on the same. 
  6. If either of the party withdraws the petition within 18 months of filing the first motion petition and he/she refuses to consent for the divorce petition, then court will not have the right to pass the decree.

Procedure for filing divorce by contest 

  1. If either of two parties to marriage wish to seek divorce from his/her partner on any of the grounds mentioned in the act and the other party contest it, then the party must hire a lawyer to present his/her case. 
  2. A formally drafted petition stating his/her grounds of divorce along with the photocopies of documents like income tax statements for preceding 2-3 years, details of his profession and current salary income, information about his family background, property and asset details owned by petitioner. 
  3. The petitioner will sign a ‘vakalatnama’ which authorize the lawyer to represent him in court. 
  4. After filing the petition in the court, a notice and copy of petition will be sent to estranged spouse. It will notify the spouse to appear in the court on a specified date. 
  5. The court will hear both the parties, consider the validity of the evidences in support of the petition and thereby, pass his judgment/decree  being duly satisfied. The court will also decide on child custody, alimony and  maintenance etc. and accordingly, pass the judicial order which is binding on both the parties, unless any of the two parties go for appeal in higher courts.

2) Muslim: Divorce by Mutual agreement (Khula & Mubarat):It is basically an act of parties where no court intervention is needed.

Judicial Divorce where wife seeks for divorce 

Christians & other person of different religion: Procedure under Special Marriage Act 

It is important to see that the parties filing divorce should not deceive the court and the statements mentioned in the petition should be verified by petitioner and a third party.

Judicial Separation Judicial Separation is a provision under the Indian marriage laws, wherein both the husband and the wife get an opportunity to introspect about giving a chance to their marriage, before going ahead  with the divorce proceedings. Under a decree of Judicial Separation, both the parties live separately for a period of time getting adequate space, independence and time to think about continuing their marriage or not.  During this phase, both the parties still carry the same legal status of being husband and wife and yet at the same time live separately. .

Grounds for Judicial Separation: The following grounds on which Judicial Separation can be granted: 

Difference between Judicial Separation and Divorce Although the procedure of dealing defended and undefended proceedings for both judicial separation and divorce are similar, yet there are certain differences between them.  Explore them as follows: 

What are the exceptions or special cases? NRI Divorce: If a marriage involves one or both NRIs , then our legal system does not provide exhaustive laws for marriage or  divorce. If partners file for divorce by mutual consent and have got married as per Hindu Marriage Act, then divorce can be sought  as per the procedure laid in the Act. But, if both parties to the proceeding are residents of a foreign country, then they can file a mutual consent divorce under the legal provisions of that foreign country only, which would be recognized by the Indian legal system as valid. .If it is not by mutual consent, then the divorce laws specified for NRI in respective Acts are to be  Interpreted on a case-to-case basis.

Ex-parte Order in Divorce petition: If any of the two parties or their respective lawyers fails to appear in all the proceedings, then the court will pass the notice regarding ex-parte proceedings, but if the party or the lawyer does not  appear in the said proceeding, then ex-parte decree is passed. The appeal of this decree has to be made in the trial court  and then to a higher courts, if necessary.

Appeal process 

The importance of appeal limitation is that it allows the divorced couple to remarry without the fear of challenge to a family court decree .Divorce is legally a painful process. Divorce by mutual consent in all the religious acts in India is the simplest way to dissolve the marriage as it takes lesser time. But  under divorce through contest, the period varies from 2 years to more.

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