A divorce can be sought by mutual consent or on a ground in the personal law that applies. For Hindus the grounds are in section 13 of the Hindu Marriage Act, 1955 and mutual consent is covered by section 13B, which requires two motions. A spouse, a child and a parent can claim maintenance. Custody of a child is decided on the welfare of the child.
Family matters are governed by the personal law of the parties, which depends on religion and the form of marriage. The main Acts are the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, the Parsi Marriage and Divorce Act, 1936, the Indian Divorce Act, 1869 and the Dissolution of Muslim Marriages Act, 1939. Matters are heard by the Family Court under the Family Courts Act, 1984.
Disputes in a family are often sensitive, and many are settled by agreement. Work includes advice on options, drafting of petitions and settlement terms, and appearance in court.
Jurisdiction and the law that applies
The law depends on the personal law and on where the petition is filed. Under section 19 of the Hindu Marriage Act, 1955 a petition can be filed in the court where the marriage was solemnised, where the parties last resided together, or in certain cases where the petitioner resides. The correct Family Court is identified from these facts before filing.
Divorce by mutual consent
Section 13B of the Hindu Marriage Act, 1955 allows spouses to divorce by mutual consent when they have lived apart for one year or more and have agreed that the marriage should end. The procedure has two motions:
- First motion: a joint petition is filed and the statements of the parties are recorded
- Second motion: the parties return, ordinarily after six months and within eighteen months of the first motion, and the court grants the decree if they still consent
- The six month period is not mandatory in every case. In Amardeep Singh v. Harveen Kaur, the Supreme Court held that a court can waive it where the conditions it set out are met
- A petition is ordinarily accompanied by a settlement on maintenance, custody and property
Contested divorce
A spouse who does not agree to a divorce can be sued on a ground in section 13 of the Hindu Marriage Act, 1955, such as cruelty, desertion for two years or more, adultery, conversion, unsoundness of mind, a communicable disease or renunciation of the world. A petition is not entertained within one year of the marriage unless the court gives leave under section 14 for exceptional hardship or depravity. Other matters in the Act include restitution of conjugal rights under section 9 and judicial separation under section 10.
Maintenance
Maintenance can be sought for a spouse, children and parents in several ways:
- Interim and permanent maintenance under sections 24 and 25 of the Hindu Marriage Act, 1955
- Maintenance of wives, children and parents under section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which replaced section 125 of the Code of Criminal Procedure, 1973
- Maintenance of a wife, widowed daughter-in-law and parents under the Hindu Adoptions and Maintenance Act, 1956
- Monetary relief under the Protection of Women from Domestic Violence Act, 2005
- In Rajnesh v. Neha, the Supreme Court directed that both parties file an affidavit of assets and liabilities in a maintenance case
Child custody and guardianship
A court decides custody and guardianship on the welfare of the child, as section 17 of the Guardians and Wards Act, 1890 and the case law provide. Section 6 of the Hindu Minority and Guardianship Act, 1956 names the natural guardians. Orders can cover custody, visitation and access, and the residence and education of the child. Orders can be varied if the circumstances change.
Domestic violence proceedings
An aggrieved woman can apply to the magistrate under section 12 of the Protection of Women from Domestic Violence Act, 2005. The Act provides for:
- Protection orders under section 18
- Residence orders under section 19, which protect the right to live in the shared household
- Monetary relief under section 20
- Custody orders under section 21 and compensation under section 22
- Interim and ex parte orders under section 23
Succession and inheritance
Succession matters cover wills, probate, letters of administration and succession certificates under the Indian Succession Act, 1925, and the devolution of property of a Hindu under the Hindu Succession Act, 1956. Section 6 of the 1956 Act, as amended in 2005, makes a daughter a coparcener by birth, and the Supreme Court explained the effect in Vineeta Sharma v. Rakesh Sharma.
Other family matters
Other matters include adoption, guardianship, restitution of conjugal rights, nullity of marriage and recovery of stridhan and articles of the marriage.
How a matter is run
- What has happenedThe history of the marriage or the family dispute is heard.
- The documentsThe marriage certificate, income records, property papers, earlier orders and any notices are collected.
- The positionThe applicable law, the forum and the options, including settlement, are explained.
- Filing and appearancePetitions and applications are drafted and filed, and the matter is argued or the settlement is recorded.
Laws and forums
Laws that usually apply
- Hindu Marriage Act, 1955, including sections 9 to 14, 13B, 19, 24 and 25
- Special Marriage Act, 1954
- Parsi Marriage and Divorce Act, 1936
- Indian Divorce Act, 1869
- Dissolution of Muslim Marriages Act, 1939
- Family Courts Act, 1984
- Bharatiya Nagarik Suraksha Sanhita, 2023, section 144
- Hindu Adoptions and Maintenance Act, 1956
- Protection of Women from Domestic Violence Act, 2005
- Guardians and Wards Act, 1890
- Hindu Minority and Guardianship Act, 1956
- Hindu Succession Act, 1956
- Indian Succession Act, 1925
Courts and forums
- Family Court
- Magistrate courts, for domestic violence and maintenance applications
- Civil courts and the City Civil Court, for succession matters
- Bombay High Court, in appeals and writ petitions
Related guides
Frequently asked questions
What is the difference between a mutual consent divorce and a contested divorce?
In a mutual consent divorce both spouses agree to end the marriage and to the terms on maintenance, custody and property, and the court grants the decree on two motions. In a contested divorce one spouse files on a ground in the law and the other can oppose, so there is a trial.
How long does a divorce take in Mumbai?
A mutual consent divorce takes at least as long as the period between the two motions, which the court can shorten in a suitable case. A contested divorce takes longer because of pleadings, evidence and arguments, and the time depends on the court and the case.
Can a wife claim maintenance if she is earning?
Yes. Her income is one of the factors the court weighs. The court looks at the income and needs of both spouses, their standard of living and other liabilities. The affidavit of assets filed under the directions in Rajnesh v. Neha records these details.
How is child custody decided?
A court decides on the welfare of the child. It considers the age and wishes of the child where suitable, the care each parent can give, the child's schooling and stability, and other facts. Visitation and access are usually fixed for the parent who does not have custody.
Where is a family matter filed for Mumbai and Navi Mumbai?
The court is decided by the law that applies. For a Hindu marriage, section 19 of the Hindu Marriage Act, 1955 lists the courts where a petition can be filed. A magistrate court hears an application under the Domestic Violence Act or for maintenance under section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
Can a divorce petition be filed within one year of marriage?
Not ordinarily. Section 14 of the Hindu Marriage Act, 1955 bars a petition within one year of the marriage unless the court grants leave for exceptional hardship to the petitioner or exceptional depravity of the respondent.
What can be asked for under the Domestic Violence Act?
An aggrieved woman can ask for a protection order, a residence order, monetary relief, custody of children and compensation under sections 18 to 22, and interim orders under section 23.
Related practice areas
General information only. This page is for information. It is not legal advice, an advertisement or a solicitation, and it makes no claim about results. The law changes, and the position in a case depends on its facts. A professional relationship begins only when the advocate agrees to act in a matter.