How to File for Divorce in India: A Step-by-Step Guide

To file for divorce in India you present a petition in the family court that has jurisdiction, set out a legally recognised ground, pay the court fee, and attend the hearings. A mutual consent petition is filed jointly by both spouses and is usually decided in months. A contested petition is filed by one spouse on a statutory ground and is decided after evidence and cross examination, which is why it takes years. Under the Hindu Marriage Act, 1955 the two routes are section 13B and section 13 respectively.

Part of the family and divorce law practice at S Jain & Attorneys, Bangalore.

Divorce in India is governed by the personal law that applied to your marriage. For Hindus, Buddhists, Jains and Sikhs the controlling statute is the Hindu Marriage Act, 1955, with procedure supplied by the Code of Civil Procedure, 1908 and the Family Courts Act, 1984. Christians, Muslims, Parsis and couples married under the Special Marriage Act are governed by different statutes, set out below. This guide walks through the grounds, the jurisdiction rules, the two procedures step by step, the documents, the interim money and custody orders, and a realistic view of timeline, cost and appeal.

Which law governs your divorce

Settle this first, because the grounds, the separation period and even whether there is a cooling off period all differ.

Two points on the Muslim law row, because they are frequently misunderstood. Instant triple talaq was held invalid by the Supreme Court in Shayara Bano v. Union of India (22 August 2017), and the Muslim Women (Protection of Rights on Marriage) Act, 2019 now makes the pronouncement of talaq in that form void and an offence. The Dissolution of Muslim Marriages Act, 1939 remains the route by which a woman married under Muslim law seeks a decree from the court.

The rest of this guide focuses on the Hindu Marriage Act, which covers the largest share of Indian marriages, and flags where the position differs elsewhere.

Mutual consent or contested: the first decision

If both spouses want to separate and can agree on money and children, mutual consent is faster, cheaper and far less damaging. Our detailed walkthrough of the mutual consent divorce process covers the drafting. If your spouse will not agree, a contested petition under section 13 may be the only path.

Key takeaway. Consent in a section 13B petition has to be alive at both motions. A joint petition filed today does not bind anyone. If your spouse withdraws consent before the second motion, the petition fails and you are back to a contested case. That is why the settlement terms, and the performance of them, should be structured to match the two motions rather than left to goodwill.

Grounds for divorce under the Hindu Marriage Act

A contested divorce must rest on a ground recognised by law. Under section 13(1), either spouse may seek divorce on the ground that the other party:

• Adultery, section 13(1)(i), has had voluntary sexual intercourse with any person other than his or her spouse after the marriage.
• Cruelty, section 13(1)(ia), has treated the petitioner with cruelty. This covers mental as well as physical cruelty and is the ground on which most contested petitions are actually run.
• Desertion, section 13(1)(ib), has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. The Explanation defines desertion as desertion without reasonable cause and without the consent or against the wish of the petitioner, and it includes wilful neglect.
• Conversion, section 13(1)(ii), has ceased to be a Hindu by conversion to another religion.
• Unsoundness of mind or mental disorder, section 13(1)(iii), of a kind and extent that the petitioner cannot reasonably be expected to live with the respondent.
• Venereal disease in a communicable form, section 13(1)(v).
• Renunciation of the world, section 13(1)(vi), by entering a religious order.
• Presumption of death, section 13(1)(vii), not heard of as being alive for seven years or more by those who would naturally have heard.

A currency point worth knowing: leprosy used to be a ground under section 13(1)(iv), and it was removed by the Personal Laws (Amendment) Act, 2019 with effect from 1 March 2019. Older guides still list it.

Section 13(1A) adds two further grounds available to either party: no resumption of cohabitation for one year or more after a decree of judicial separation, and no restitution of conjugal rights for one year or more after a decree for restitution. Section 13(2) gives a wife additional grounds, including that the husband has since the marriage been guilty of rape, sodomy or bestiality; that a maintenance order was passed in her favour and cohabitation has not resumed for a year since; and that her marriage was solemnised before she attained fifteen and she repudiated it after fifteen but before eighteen. Section 13A allows the court, in most cases, to grant judicial separation instead of divorce where that is the just outcome. For how courts treat each ground, read our guide on contested divorce grounds in India.

Common mistake. Pleading every ground in the petition in the hope that one sticks. It has the opposite effect. A petition that alleges cruelty, desertion and adultery together invites the court to test all three, hands the other side three lines of cross examination, and dilutes the one allegation you can actually prove. Plead the ground you can establish, with dates and particulars, and leave the rest out.

Threshold rules before you can file

Section 14 of the Hindu Marriage Act says no court can entertain a divorce petition unless one year has elapsed since the date of the marriage. The proviso allows an earlier petition with the leave of the court where the case is one of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent, on an application under rules made by the High Court. The Special Marriage Act contains a comparable one year restriction in section 29.

For a joint petition under section 13B(1) there is a separate requirement: the parties must have been living separately for one year or more, must not have been able to live together, and must have mutually agreed that the marriage should be dissolved. Living separately is about the marital relationship having ended, not necessarily about two addresses, but the pleading has to be specific about when and how the separation began.

Where to file: jurisdiction

Section 19 of the Hindu Marriage Act allows the petition to be presented to the district court within whose ordinary original civil jurisdiction:

• the marriage was solemnised; or
• the respondent resides at the time the petition is presented; or
• the parties last resided together; or
• where the wife is the petitioner, where she is residing on the date of presentation; or
• the petitioner is residing, where the respondent is at that time residing outside India or has not been heard of as alive for seven years or more.

Where a Family Court has been established for the area, section 7 of the Family Courts Act, 1984 gives it the jurisdiction of a district court in matrimonial matters, and section 8 excludes the ordinary district court from exercising it. So in Bengaluru and other cities with Family Courts, that is where the petition goes.

Before the petition can be filed at all, four rules decide the timing and the forum.

The mutual consent procedure, step by step

1. Take advice and settle the terms first. Alimony or a one time settlement, who keeps what, custody and visitation, school fees, and the withdrawal of any pending cases. A section 13B petition with unresolved terms simply stalls at the second motion.
2. Draft the joint petition. It must plead the date of marriage, that the parties have been living separately for one year or more, that they cannot live together, and that they have mutually agreed to dissolve the marriage. Annex the settlement.
3. File in the family court with jurisdiction under section 19, with the court fee and the annexures.
4. First motion. Both spouses appear and their statements are recorded on oath. The court records the joint petition.
5. Counselling or mediation. Section 9 of the Family Courts Act requires the court to endeavour in the first instance to assist and persuade the parties towards a settlement, and section 23(2) of the Hindu Marriage Act imposes a comparable duty of reconciliation.
6. The statutory gap. Section 13B(2) allows the second motion not earlier than six months and not later than eighteen months from the date the petition was presented. If a waiver is sought, the application can be filed one week after the first motion.
7. Second motion. Both spouses reappear and confirm consent. If either has withdrawn consent, the petition cannot proceed under section 13B.
8. Decree. The court, on being satisfied that the marriage was solemnised and that the averments are true, passes a decree declaring the marriage dissolved with effect from the date of the decree.
9. Perform the settlement and collect the certified copy of the decree. You will need it for name changes, bank and insurance records, passport and any later remarriage.

Waiving the six month wait

In Amardeep Singh v. Harveen Kaur (12 September 2017) the Supreme Court held that the period in section 13B(2) is directory and not mandatory, so the court dealing with the matter may waive it. The Court set out what that court should consider before doing so:

• the six month period under section 13B(2), in addition to the one year of separation under section 13B(1), is already over before the first motion itself;
• all efforts at mediation and conciliation, including under Order XXXIIA Rule 3 of the Code of Civil Procedure, section 23(2) of the Hindu Marriage Act and section 9 of the Family Courts Act, have failed and there is no likelihood of success;
• the parties have genuinely settled their differences including alimony, custody of a child and any other pending issues; and
• the waiting period will only prolong their agony.

The Court added that the waiver application can be filed one week after the first motion, giving reasons, and that if the conditions are satisfied the waiver is in the discretion of the court concerned. It also said proceedings can use video conferencing, and that genuine representation through close relations such as parents or siblings can be permitted where a party cannot appear in person for a just and valid reason.

A separate and often confused point. In Shilpa Sailesh v. Varun Sreenivasan (1 May 2023) a Constitution Bench held that the Supreme Court, exercising its power under Article 142(1) of the Constitution, can dissolve a marriage by mutual consent without being bound by the procedural requirement of the second motion, and can also dissolve a marriage on the ground of irretrievable breakdown even where one spouse opposes. That is a power of the Supreme Court doing complete justice. Irretrievable breakdown is still not a ground on which a family court can grant divorce under section 13, so do not plan a trial court strategy around it.

The contested procedure, step by step

1. Petition drafted and filed under section 13, pleading the ground with dates, incidents and particulars, verified as required by section 20 and stating that there is no collusion.
2. Summons issued and served on the respondent. Substituted service becomes necessary where the respondent avoids service, and this alone can consume months.
3. Written statement filed by the respondent, often with a counter claim, together with any application for interim maintenance under section 24 or for custody and interim arrangements under section 26.
4. Interim applications heard. The proviso to section 24 says an application for expenses and monthly maintenance during the proceeding should, as far as possible, be disposed of within sixty days of service, and the proviso to section 26 sets the same sixty day target for interim maintenance and education of minor children.
5. Mediation or counselling under section 9 of the Family Courts Act and section 23(2) of the Hindu Marriage Act.
6. Issues framed by the court from the pleadings.
7. Evidence. Affidavits of examination in chief, documents exhibited, cross examination of the petitioner, the respondent and any witnesses.
8. Final arguments, followed by judgment and decree. Under section 21B the trial is to be continued from day to day so far as practicable, and the endeavour is to conclude it within six months from service of notice on the respondent. Dockets rarely permit that, but the provision is worth citing when the other side seeks repeated adjournments.
9. Appeal, if any, and then execution of the money and custody parts of the decree.

Documents you will need

• Marriage certificate or other proof of the marriage, including wedding invitation and photographs where there is no certificate.
• Identity and address proof of both spouses.
• Passport size photographs.
• Proof of the period of separation for a section 13B petition, such as separate rent agreements, utility bills or employer records.
• Income proof of both spouses: salary slips, Form 16, income tax returns for the last three years, and bank statements. These decide maintenance and alimony.
• Details and proof of assets and liabilities, including property documents, loan statements and investment records.
• For a contested petition, the evidence supporting the ground pleaded, for example medical records, police complaints, messages preserved with their metadata, and the names of witnesses.
• Details of any parallel proceedings, such as an application under the Protection of Women from Domestic Violence Act, 2005, a maintenance case under section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, or a criminal complaint, because a settlement has to deal with all of them.

Keep originals safe and give your advocate clean copies. Missing or mismatched documents are a common cause of delay. Section 21C of the Hindu Marriage Act is useful here: no document is inadmissible in a trial under the Act merely because it is not duly stamped or registered.

Money and children while the case is running

A divorce petition is rarely the only proceeding. The interim orders are often what people actually live on for the next few years.

• Maintenance pendente lite, section 24. Where either the wife or the husband has no independent income sufficient for support and for the necessary expenses of the proceeding, the court may order the other to pay the expenses of the proceeding and a reasonable monthly sum during it, having regard to both incomes. The section is gender neutral.
• Permanent alimony and maintenance, section 25. At the time of the decree or at any time after it, on the application of either spouse, the court may order a gross sum or a monthly or periodical sum for a term not exceeding the life of the applicant, having regard to income, property, conduct of the parties and other circumstances, and may secure it by a charge on the respondent's immovable property. An order can be varied, modified or rescinded if circumstances change.
• Custody, section 26. The court may pass interim orders and make provisions in the decree about the custody, maintenance and education of minor children, consistently with their wishes where possible, and may revisit those orders later. Where children are involved this becomes the central and most sensitive issue, and our guide on custody of the girl child in India goes into it further.
• Maintenance under the criminal code. The old section 125 of the Criminal Procedure Code is now section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and a first class Magistrate can order a monthly allowance for a wife, children or parents unable to maintain themselves. India recodified its criminal laws in 2023, so the Indian Penal Code is now the Bharatiya Nyaya Sanhita, 2023 and the Criminal Procedure Code is the BNSS. The Hindu Marriage Act and the Code of Civil Procedure are civil statutes and were not replaced, so divorce grounds and procedure still run under them.
• Domestic violence. An application under the Protection of Women from Domestic Violence Act, 2005 can carry residence, protection and monetary reliefs and often runs alongside the divorce.

Divorce timeline: how long does it take

What it costs

There are two buckets. Court fees are modest and are fixed by State schedules, usually in the range of a few hundred to a couple of thousand rupees, plus process and copying charges. The larger and far more variable component is the advocate's professional fee, which depends on whether the matter is mutual or contested, how complex the alimony, custody and property questions are, the number of hearings, and the seniority of counsel. A mutual consent matter with agreed terms costs a fraction of a multi year contested trial. Ask any advocate for a written fee estimate that says what is covered, what is charged per appearance, and what happens if the matter converts from mutual to contested.

Appeals, and when you can remarry

Section 28(1) of the Hindu Marriage Act makes decrees appealable as decrees of the court in its original civil jurisdiction, and section 28(4) fixes the appeal period at ninety days from the date of the decree or order. Section 19 of the Family Courts Act provides an appeal from every judgment or order of a Family Court, other than an interlocutory order, to the High Court on both facts and law, to be preferred within thirty days. Because the two provisions sit together, treat thirty days as the working outer limit and take advice immediately rather than assuming the longer period applies.

Two related rules matter in practice. Section 19(2) of the Family Courts Act says no appeal lies from a decree or order passed with the consent of the parties, which is one reason a mutual consent decree is comparatively final. And under section 15 of the Hindu Marriage Act, a divorced person may marry again when there is no right of appeal, or the time for appealing has expired without an appeal, or an appeal has been presented and dismissed.

Deadline warning. The clock on an appeal runs from the date of the decree, not from the date you collect a copy or from the date you decide you are unhappy with it. If you intend to challenge a decree or a maintenance order, apply for the certified copy the same week and instruct counsel immediately.

What we tell clients

Three things, and they are rarely what people expect. First, the fight is almost never about the divorce, it is about money and children. Couples who spend the first month negotiating the settlement and then file a joint petition finish in under a year. Couples who file first and negotiate later spend three years arguing and usually settle on terms close to what was available at the start. Second, the paperwork that decides your case is financial. Judges assess maintenance on income tax returns, salary slips, bank statements and lifestyle evidence, so the party who arrives with three years of clean documents is in a materially better position than the party who arrives with assertions. Third, be careful about the parallel proceedings. A settlement that resolves the divorce but leaves a domestic violence application, a maintenance case under section 144 BNSS and a criminal complaint running is not a settlement, and the party who signed it will be back in court within the year. Where matters go wrong, the two commonest causes we see are consent that quietly collapses between the first and second motion because a settlement instalment was not paid on time, and a contested petition drafted as a list of grievances rather than a pleading with dates, incidents and particulars capable of being proved. One more practical point: section 22 requires these proceedings to be conducted in camera, and there are real limits on publishing anything about them, which is worth remembering before anyone posts about the case.

You can read the full text of the Hindu Marriage Act, 1955 on the Government of India's official portal, India Code. To understand your options end to end, see our family and divorce law page.

Frequently Asked Questions

This article is for general informational purposes only and does not constitute legal advice. Laws change and every situation is different; please consult a qualified advocate about your specific matter.

Related guides and where to get help

If this is a live problem rather than background reading, our family and divorce law practice handles these matters from Bengaluru, including for clients who cannot attend court in person. These guides go deeper on the neighbouring questions:

• How to File a RERA Complaint in India: A Step-by-Step Guide
• How to File a Consumer Complaint in India: A Step-by-Step Guide
• Divorce Under Christian Law in India: A Clear Guide