Contested Divorce in India

A contested divorce is one where one spouse asks the court to end the marriage and the other does not agree, or the spouses cannot agree on the terms. This page is a general overview under the Hindu Marriage Act, 1955. It is not advice on any particular case.

Grounds for divorce

Section 13(1) of the Hindu Marriage Act lets either spouse seek divorce on these grounds, among others:

• Adultery.
• Cruelty, which can be physical or mental.
• Desertion for a continuous period of at least two years.
• Conversion of the other spouse to another religion.
• A mental disorder of a kind and extent that the petitioner cannot reasonably be expected to live with the other spouse.
• A communicable form of venereal disease.
• Renunciation of the world by entering a religious order.
• The other spouse not having been heard of as alive for seven years or more.

A wife has some additional grounds under section 13(2). Irretrievable breakdown of the marriage is not by itself a ground under the Act. The Supreme Court has, in some cases, used its powers under Article 142 of the Constitution to dissolve a marriage that had broken down beyond repair.

One-year bar

Section 14 says that a divorce petition cannot ordinarily be presented within one year of the marriage, unless the court allows it in a case of exceptional hardship or depravity.

How a case moves

1. A petition is filed in the Family Court that has jurisdiction.
2. The court issues a summons to the other spouse, who files a reply.
3. The Family Courts Act, 1984 requires the court to try to bring about a settlement, and it often refers the parties to counselling or mediation.
4. If there is no settlement, both sides lead evidence and argue.
5. The court passes a decree if a ground is proved.

An appeal against the decree lies to the High Court, and the Hindu Marriage Act sets 30 days for filing it.

Maintenance

While the case is pending, and when it ends, the court can order one spouse to pay maintenance to the other under sections 24 and 25 of the Act. See maintenance and alimony.

Related topics

If both spouses agree to part, see mutual consent divorce. For children, see child custody. For separation without ending the marriage, see legal separation.

Frequently asked questions

How long does a contested divorce take?

There is no fixed period. It depends on the court’s schedule, on whether the parties settle, and on the evidence and any appeal.

Can I file for divorce within a year of marriage?

Section 14 of the Hindu Marriage Act ordinarily bars a petition within one year of the marriage. The court may allow one in a case of exceptional hardship to the petitioner or exceptional depravity by the other spouse.

Does the other spouse have to agree?

No. In a contested divorce, one spouse asks the court to dissolve the marriage on a ground in the Act and has to prove it. If both spouses agree, the route is mutual consent divorce.

Is adultery still a ground for divorce?

Yes. In 2018 the Supreme Court struck down section 497 of the Indian Penal Code, so adultery is no longer a criminal offence. It remains a ground for divorce under section 13(1) of the Hindu Marriage Act.

Can the court order maintenance while the case is pending?

Yes. Section 24 of the Hindu Marriage Act allows interim maintenance and the expenses of the proceedings to be awarded to a spouse who has no independent income sufficient for support.