Quick answerIn India, divorce is granted by a family court under the personal law that governs the marriage. Hindus, Sikhs, Jains and Buddhists file under the Hindu Marriage Act, 1955: mutual consent divorce under section 13B after living separately for at least a year, or contested divorce under section 13 on grounds such as cruelty, adultery or desertion for two years. The six-month cooling-off period in mutual divorce can be waived by the court in suitable cases. Marriages under the Special Marriage Act, and Muslim, Christian and Parsi marriages, follow their own laws.
- Main laws
- Hindu Marriage Act 1955, Special Marriage Act 1954
- Mutual consent
- 1 year separation, s.13B
- Forum
- Family Court
- Cooling-off
- 6 months, waivable
Mutual consent divorce under section 13B
Mutual consent is the quickest and least damaging route when both spouses agree to part and can settle the terms. The requirements under section 13B of the Hindu Marriage Act are:
- The spouses have been living separately for one year or more. Living separately means not living as husband and wife, even if under the same roof.
- They have not been able to live together and have mutually agreed that the marriage should be dissolved.
- A joint petition (the first motion) is filed in the family court, with statements recorded before the judge.
- The second motion is made not earlier than six months and not later than 18 months after the first, and the court then passes the decree if consent continues.
The settlement terms are the heart of the case: permanent alimony or a full and final amount, return of jewellery and articles, custody and visitation, and withdrawal of any pending cases. These are recorded in a written settlement and in the statements before the court.
In Amardeep Singh v. Harveen Kaur (2017) the Supreme Court held that the six-month waiting period is directory, not mandatory. The family court may waive it where the parties have already been separated for over 18 months by the date of the first motion, mediation and reconciliation efforts have failed, and all issues including alimony and custody are settled. Either party may withdraw consent before the decree, which is why the settlement must be carefully structured.
Contested divorce: grounds under section 13
If one spouse does not agree, the other must prove a ground recognised by law. Under section 13(1) of the Hindu Marriage Act either spouse can seek divorce on the ground that the other:
| Ground | What must be shown |
|---|
| Cruelty | Physical or mental conduct making it unreasonable to expect the spouse to live with the other; judged on the whole married life |
| Adultery | Voluntary sexual intercourse with another person after the marriage |
| Desertion | Leaving without reasonable cause and without consent for a continuous period of at least two years before the petition |
| Conversion | Ceasing to be a Hindu by converting to another religion |
| Mental disorder | Incurable unsoundness of mind or a mental disorder of such a kind that the spouse cannot reasonably be expected to live with the other |
| Venereal disease | Suffering from venereal disease in a communicable form |
| Renunciation or presumed death | Entering a religious order, or not heard of as alive for seven years |
Either spouse can also seek divorce under section 13(1A) where cohabitation has not resumed for one year after a decree of judicial separation or restitution of conjugal rights. A wife has additional grounds under section 13(2). A petition cannot ordinarily be filed within one year of marriage (section 14), unless the court allows it for exceptional hardship or depravity.
Contested cases involve pleadings, mandatory attempts at mediation, evidence and cross-examination, and commonly take several years. Many convert into mutual consent once interim issues are resolved.
Irretrievable breakdown and Article 142
Irretrievable breakdown of marriage is not a ground available to family courts under the Hindu Marriage Act. However, in Shilpa Sailesh v. Varun Sreenivasan (2023), a Constitution Bench held that the Supreme Court may dissolve a marriage that has irretrievably broken down using its power under Article 142 of the Constitution, and may dispense with the procedure and waiting period under section 13B, after considering factors such as the length of separation, attempts at reconciliation, pending litigation and the arrangements for the spouse and children. This is a discretionary power used in exceptional cases; it is not a right and it is not available in the family court or High Court.
Divorce under other personal laws
- Special Marriage Act, 1954: applies to civil and inter-faith marriages registered under it. Section 27 lists grounds similar to the Hindu Marriage Act, and section 28 provides mutual consent divorce after one year of separation with a similar six-month interval.
- Muslim law: a husband may divorce by talaq in the recognised forms, but instant triple talaq is void and an offence under the Muslim Women (Protection of Rights on Marriage) Act, 2019. A wife may seek divorce through khula, mubarat (mutual) or a court decree under the Dissolution of Muslim Marriages Act, 1939.
- Christian law: the Divorce Act, 1869 provides grounds in section 10, and mutual consent divorce under section 10A after two years of separation.
- Parsi law: the Parsi Marriage and Divorce Act, 1936, with cases heard by special Parsi matrimonial courts.
The family court with jurisdiction is usually where the marriage was solemnised, where the respondent lives, where the couple last lived together or, for a wife, where she now lives.
Children, maintenance and alimony
Custody: the welfare of the child is the paramount consideration, under section 26 of the Hindu Marriage Act, the Hindu Minority and Guardianship Act, 1956 and the Guardians and Wards Act, 1890. Courts can grant sole or joint custody and fix visitation, and orders can be varied as children grow.
Maintenance during the case: either spouse without sufficient income can claim maintenance and litigation expenses under section 24. A wife, children and parents can also claim maintenance under section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (old section 125 CrPC), and under the Protection of Women from Domestic Violence Act; see our domestic violence page.
Permanent alimony: under section 25, decided on the income and property of both spouses, their conduct and needs. Following Rajnesh v. Neha (2020), both parties file affidavits disclosing assets and liabilities, and amounts already paid under other laws are taken into account to avoid double payment. There is no fixed formula; a one-time settlement is common in mutual consent cases.
How long a divorce takes and what it costs
A mutual consent divorce generally takes about six to eight months, or less if the cooling-off period is waived. Contested divorce depends on the court and the conduct of the parties and can run for several years, with appeals beyond that. Court fees in family courts are small; professional fees depend on whether the case is mutual or contested, the number of connected cases and whether custody or property is disputed. We give a written stage-wise quote after the first consultation.
If you married abroad or one spouse lives outside India, the case can still proceed in India, with appearance through video conferencing in many family courts.
Documents you need
Bring copies, not originals, to the first meeting. We will tell you which originals the court needs.
- Marriage certificate or proof of marriage such as wedding photographs and invitation card
- Aadhaar or other ID and address proof of both spouses
- Proof of separation date, such as a rent agreement or correspondence
- Income proof: salary slips, ITRs, bank statements
- Details of assets, liabilities, jewellery and articles
- Birth certificates and school details of children
- Copies of any pending cases: maintenance, domestic violence or criminal complaints
- Draft settlement terms, if agreed
How we handle it for you
Confidential consultation
We understand the facts and explain your options under the law that governs your marriage.
Choose the route
We advise whether mutual consent is achievable or a contested petition is needed.
Settlement or pleadings
We draft the settlement agreement and joint petition, or the contested petition with evidence.
Court and mediation
We appear for the motions, mediation and hearings, and apply for waiver of the cooling-off period where it fits.
Decree and follow-through
We obtain the certified decree and see that settlement terms such as payments and case withdrawals are completed.
Why clients choose ProudLegal
Advocates who appear in courtYour matter is drafted and argued by enrolled advocates, not call-centre staff.
Company and tax filings in-houseCompany secretaries and tax professionals handle registrations and returns.
Fees agreed in writingYou receive a written fee quote before any work begins.
Updates on WhatsApp and emailEvery hearing date, filing and document is shared as it happens.
Please note: this page explains the law and procedure in general terms as on 30 October 2026. Fees, limits and timelines change, and the facts of each case matter, so take advice on your own papers before acting.
Frequently asked questions
How long does a mutual consent divorce take in India?
Usually six to eight months from the first motion. If the court waives the six-month cooling-off period under Amardeep Singh, it can be quicker.
Can the six-month cooling-off period be waived?
Yes. The family court can waive it where the spouses have been separated for more than 18 months, reconciliation has failed and all issues are settled.
Can I get a divorce if my spouse does not agree?
Yes, by filing a contested petition and proving a legal ground such as cruelty, adultery or desertion for two years.
Is irretrievable breakdown a ground for divorce?
Not before family courts. The Supreme Court can dissolve such a marriage under Article 142, as held in Shilpa Sailesh (2023), in exceptional cases.
Can a divorce petition be filed within one year of marriage?
Ordinarily no under section 14 of the Hindu Marriage Act, unless the court permits it for exceptional hardship. Mutual consent also needs one year of separation.
Who gets custody of children after divorce?
The court decides on the welfare of the child. Custody can be with one parent with visitation for the other, or shared.
Is alimony fixed at a percentage of income?
No fixed percentage applies. The court considers both parties' income, assets, needs and conduct, and the disclosure affidavits required since Rajnesh v. Neha.
Do both spouses have to appear in court?
Statements of both are recorded in mutual consent cases. Many family courts allow appearance by video conferencing where a spouse is outside the city or country.
