Divorce, in legal terms, is the formal termination of the marital relationship through a court of law. In India, the procedure for obtaining a divorce varies based on the personal law applicable to the parties, depending on their religion or the law under which the marriage was solemnized. This article provides a comprehensive yet simplified overview of the divorce procedure in India, covering key provisions under Hindu, Muslim, Christian, and Parsi personal laws, along with the Special Marriage Act, which governs civil and interfaith marriages.
1. Divorce Under Hindu Law (Hindu Marriage Act, 1955)
Applicable to Hindus, Buddhists, Jains, and Sikhs, the Hindu Marriage Act lays down two broad categories for divorce:
A. Divorce by Mutual Consent (Section 13B)
- Both spouses must agree to dissolve the marriage.
- They must have lived separately for at least one year before filing.
- A joint petition is filed before the Family Court.
- A six-month cooling-off period is provided, which may be waived by the court if there is no possibility of reconciliation (as held by the Supreme Court).
B. Contested Divorce (Section 13)
One spouse files for divorce against the wishes of the other.
Statutory grounds include:
- Cruelty – Physical or mental harm or abuse.
- Adultery – Voluntary sexual relations outside the marriage (still a valid civil ground, though decriminalized).
- Desertion – Continuous abandonment for at least two years.
- Conversion – Renunciation of Hinduism by adopting another religion.
- Mental disorder – Unsound mind or incurable mental illness.
- Leprosy – Incurable and contagious (now rare due to medical advancements).
- Venereal disease – Communicable sexually transmitted disease.
- Renunciation of the world – Becoming a sanyasi or religious recluse.
- Presumed death – Not heard from for seven years or more.
2. Divorce Under Muslim Law
Muslim divorces may be governed by personal law, Quranic principles, and statutes such as the Dissolution of Muslim Marriages Act, 1939. The law recognizes both extra-judicial divorce and judicial divorce.
A. Extra-Judicial Forms
i. Talaq (by husband)
Traditionally, the husband could unilaterally pronounce divorce. However, instant triple talaq has been declared unconstitutional and is now illegal under the Muslim Women (Protection of Rights on Marriage) Act, 2019.
ii. Khula (by wife)
A wife may seek a divorce by offering to return her mehr or other consideration, subject to the husband’s consent.
iii. Mubarat (by mutual agreement)
Both spouses mutually agree to terminate the marriage.
B. Judicial Divorce (by wife) – Under the Dissolution of Muslim Marriages Act, 1939
A Muslim woman may approach the court on grounds such as:
- Husband’s absence for 4 years.
- Non-payment of maintenance for 2 years.
- Imprisonment of the husband for 7 years or more.
- Husband’s cruelty or abuse.
- Husband’s mental illness, impotence, or serious disease.
3. Divorce Under Christian Law (Indian Divorce Act, 1869)
This law governs divorce among Indian Christians. It was amended in 2001 to allow mutual consent divorce.
A. Divorce by Mutual Consent (Section 10A)
- Requires one year of separation.
- Both spouses must file a joint petition in the District Court.
B. Contested Divorce (Section 10)
A Christian spouse may seek divorce on one or more of the following grounds:
- Adultery
- Cruelty
- Desertion (for a minimum of 2 years)
- Mental disorder
- Conversion to another religion
- Venereal disease or leprosy
- Non-contact for 7 years
- Sexual offenses like rape or sodomy (in case of divorce by wife)
4. Divorce Under Parsi Law (Parsi Marriage and Divorce Act, 1936)
Parsis are governed by a unique legal system. Divorce matters are adjudicated by Parsi Matrimonial Courts, which include community delegates.
A. Mutual Consent Divorce
- Both spouses jointly file a petition.
- The court verifies the voluntary nature of the consent.
B. Contested Divorce (Section 32)
Either party may seek divorce on grounds such as:
- Adultery
- Cruelty
- Desertion (minimum of 2 years)
- Mental illness or unsound mind
- Infectious disease
- Non-consummation of marriage
- Presumed death (7 years of no contact)
5. Divorce Under the Special Marriage Act, 1954
This secular law applies to:
- Inter-religious marriages.
- Civil marriages solemnized through registration.
A. Mutual Divorce (Section 28)
- Requires one year of separation.
- A joint petition is filed in the district court.
B. Contested Divorce (Section 27)
Permissible on the following grounds:
- Adultery
- Cruelty
- Desertion (for two years or more)
- Mental illness
- Infectious disease
- Imprisonment for seven years or more
- Presumed death (no contact for 7 years)
General Divorce Procedure in India (Step-by-Step Overview)
Regardless of the law applicable, the core process of divorce generally involves:
- Legal Consultation – The spouse(s) consult a family lawyer to understand legal options.
- Filing of Petition – A divorce petition is filed—either jointly (mutual) or by one party (contested).
- Notice and Response – The court issues notice to the other spouse to file a reply.
- Mediation and Counseling – Courts often refer the matter for reconciliation attempts.
- Trial (if contested) – Evidence is presented, and witnesses may be examined.
- Cooling-off Period (Mutual Consent Only) – Usually 6 months, though this can be waived at the court’s discretion.
- Final Decree of Divorce – If satisfied, the court issues a decree dissolving the marriage.
Conclusion
The divorce procedure in India is diverse, reflecting the country’s pluralistic legal system. one can check divorce process in Pune and Mutual Divorce process in Pune in our blog. While personal laws govern the substantive aspects of divorce, all cases must be adjudicated through courts. Whether pursuing mutual consent or a contested divorce, parties are advised to proceed under competent legal guidance to ensure compliance with statutory requirements and protection of rights.