Filing for Divorce in India: Step-by-Step Guide

Divorce is never an easy thing. It’s an important decision that affects your whole life, your family and your future. If you’re reading this, perhaps you’ve hit a rocky patch in your marriage and are wondering what will happen next. That’s why this guide takes you through everything you need to know about filing for divorce in India — starting from the initial step, working up toward your day in court.

Regardless of whether you’re 3 months, a year or twenty years into your marriage; whether you are Hindu, Muslim, Christian or belong to any other community; this article tells you what happens when couples part ways in easy language. We will explain the legal issues, the documents you need, the process at court and what to expect.

What to Know Before You Start

There are some basic things you should know before diving into divorce. Divorce laws are separate for every religion in India. Hindus, Buddhists, Jains and Sikhs are governed by Hindu Marriage Act 1955. Muslims follow their personal laws as per the Dissolution of Muslim Marriages Act, 1939. Christians are governed by the Indian Divorce Act of 1869. And if you had a civil marriage (registered under the Special Marriage Act, 1954), you’ll be governed by that law as well.

The main point: you cannot file for divorce immediately after getting married. You have to wait at least one year from the date of your marriage. This one year period is a requirement unless you are applying based on extreme cruelty or extreme hardship.

Types of Divorce Possible in India

Primarily, there are two ways to get a divorce in India:

Mutual Consent Divorce

This is when a husband and wife mutually decide to terminate their marriage peacefully. Parties must also be in agreement on such issues as child custody, division of property, and maintenance (commonly referred to as alimony). This kind of divorce is often fast and free of the stress that comes from fighting in court.

Contested Divorce

This occurs when one spouse desires a divorce and the other does not. Or, when both people want a divorce, but can’t agree on how to divvy up custody or money or property. Here, one person initiates a divorce and must convince a judge there are “grounds” — legal reasons (beyond just wanting to end the marriage) — for doing so.

Legal Grounds for Divorce Under Indian Law

Ground for Divorce	What It Means	Available To
Adultery	If your spouse has extra-marital sex with someone else	Both husband and wife
Cruelty	Any serious physical or mental harassment that makes living together unbearable	Both husband and wife
Desertion	If your spouse abandons you without any reason for at least 2 years continuously	Both husband and wife
Conversion	If your spouse converts his/her religion	Both husband and wife
Mental Disorder	If your spouse suffers from a severe mental illness which cannot be cured	Both husband and wife
Leprosy	If your spouse is suffering from a virulent form of leprosy	Both husband and wife
Venereal Disease	If your spouse has a communicable venereal disease	Both husband and wife

Grounds Available Only to Wives:

If the husband was alive and had another wife at the time of your marriage
If the husband is convicted for rape, sodomy or bestiality
In case the husband has failed to pay maintenance pursuant to a court order
If you were married before 15 and refused to accept the marriage before your 18th birthday

For more information on marriage laws in India, visit the Ministry of Law and Justice.

The Complete Process of Mutual Consent Divorce

We’ll break it down into individual steps for when both parties want to get a divorce:

Step 1: Discuss Everything and Agree to Everything

Talk to your spouse before you start filing any papers, sit down between the two of you and talk about:

Who will provide care for the children (if any)?
How frequently is the other parent going to see the kids?
What will be the amount of alimony or maintenance?
How will you split up your stuff, bank accounts, and assets?
Who will be responsible for the education and spending on children?

This helps avoid confusion later.

Step 2: Prepare a Joint Petition

You and your spouse will join in a single petition. By this document, the court is informed that:

You’ve been married for at least one year
You have separated from your spouse for at least one year
You have not been able to live together
You have both agreed to a divorce

This petition, constructed with all legal terminology just as it should be, will be written for you by your lawyer.

Step 3: Collect All Necessary Documents

The following things you have to put together:

Original or certified copy of a marriage certificate
Two proofs of address for both parties (Aadhaar card, passport, voter ID)
Evidence of time living apart (rent agreements, utility bills with separate addresses)
Passport-size photographs of both
Income proof (like salary slips, ITR or business income declaration)
Particulars of immovable property in possession of both parties

Step 4: Filing the Petition in Family Court

Bring your petition and papers to the family court that has jurisdiction over:

The place where BOTH of you last lived together, OR
Where the wife currently lives

You will have to pay a court filing fee, which is different state by state but tends to range from ₹200 to ₹1,000.

Step 5: First Motion Hearing

Once you have filed, the court will set a hearing date (usually 2-3 weeks later). You and your spouse have to go before the judge. The judge will:

Verify your identities
Inquire whether you are filing voluntarily without compulsion
Read your settlement agreement
Try to determine if reconciliation (getting back together) is feasible

Assuming everything is in order, the judge will record your statements. This is the “First Motion.”

Step 6: The Waiting Period (The Next 6 Months)

After the initial motion, Indian law says you need to wait between 6 months and a maximum of 18 months. This is a cooling-off time to allow you to have second thoughts. During this time:

You can have second thoughts and dismiss the divorce case
You can continue living separately
The case before the court is “pending”

But the Supreme Court in May 2024 gave the courts leeway to waive that six-month waiting period in cases where there’s no prospect of reconciliation.

Step 7: Second Motion Hearing

After the waiting period has been completed, you will both come back to court for the second motion. The judge will again ask:

Is the divorce still what you want?
Have you attempted to resolve things?
Are you both adhering to the terms of the settlement agreement?

If both agree, the divorce decree (the final order) will be entered by the judge.

Step 8: Collect Your Divorce Decree

You will get your divorce decree from the court 2-4 weeks following the second motion. This is your legal evidence that the marriage has been terminated. Make multiple certified copies — you will require these in future legal-related transactions.

Mutual Consent Divorce Full Time Frame: 6-8 months is average but 12-18 months is not at all unusual depending on court schedule.

The Complete Procedure for Contested Divorce

The process of applying for one if you and your spouse don’t agree is longer and more complicated:

Step 1: Hire a Good Lawyer

You must have an attorney when it comes to contested divorce. They will also represent you in court, create your case and defend your rights. You’ll want somebody who is experienced in family law.

Step 2: File the Divorce Petition

Your attorney will file a comprehensive petition which explains in detail:

Your marriage details
Why the marriage isn’t working (the grounds)
What you want (divorce, custody, alimony, property)
Evidence supporting your claims

Step 3: Court Serves Notice to Your Spouse

Once you file, the court will send your spouse a notice about the divorce petition. The husband or wife must respond within 30 days.

Step 4: Spouse Files a Reply

Your spouse can:

Contest the divorce and defend themselves
File a counter-case alleging that you are actually guilty
Agree with the divorce and negotiate

Step 5: Multiple Court Hearings

Both sides will present:

Evidence: Documents, photographs, text messages, emails and medical reports
Witnesses: Other individuals who can testify to what you say is true (relatives, neighbors, doctors)
Cross examination: The opposing side’s attorney will question your witnesses

This phase can last months to years, with hearings occurring every few weeks or months.

Step 6: Mediation Attempts

Some courts direct couples to mediation centers, where trained counselors attempt to guide you to:

Communicate better
Find middle ground
Settle matters peacefully

If mediation is successful, then it will become a mutual consent divorce. If not, the case proceeds in court.

Step 7: Final Arguments

Once all of the evidence has been presented, both attorneys offer final arguments that outline why their client should win.

Step 8: Court Judgment

The judge will weigh the evidence and make a decision. The decree will mention:

Whether to grant divorce or not
Child custody decisions
Alimony or maintenance amount
Property division

Step 9: Appeal Option

Either side can appeal the judgment to a higher court within 90 days.

Overall Duration for a Contested Divorce: Generally speaking, 2-5 years but can be as long as 7-10 years in complex cases.

For expert legal assistance with your divorce case, visit Zista Legalis.

Child Custody: Who Gets the Children?

This is frequently the most painful aspect of any divorce. In India, the courts here always keep the interest of what is best for a child. Here’s what happens:

For Children Under 5 Years:

Typically reside with the mother unless she is deemed unfit or not able to take care of them.

For Children Over 5 Years:

The court weighs:

The preference of the child (if they are old enough to voice it)
Which parent can give better education, health and emotional support
Each parent’s financial stability
The child’s current routine and connections

Types of Custody:

Physical Custody: Where the child resides
Legal Custody: The person who makes major decisions for the child’s education, health, and religion
Shared Custody: Both parents have duties
Visitation: When a parent does not have physical custody, they are often given visitation rights

The parent who does not take care of the children most of the time usually has to pay money each month (child support) to help provide for their child.

Alimony & Spousal Support: Understanding Maintenance

Alimony (also referred to as maintenance) is the money one spouse pays the other after a divorce. Here’s how it works:

Who Can Get Alimony?

Maintenance can be claimed by either spouse, although in most cases it’s awarded to wives — because they have lower earnings or forgo careers for family.

How Much Alimony?

There’s no fixed formula. Courts consider:

The income of both spouses
Wife’s age, education, and working status
The marital standard of living
Jointly owned property and assets
If wife has custody, children’s needs

Spousal support is generally 20%-40% of the net income of the husband.

Types of Alimony

Category	Period of Payment
Interim Maintenance	During divorce proceedings until final decree
Permanent Alimony	Post divorce till death or remarriage
One-time Settlement	Post-divorce, only one time

When Does Alimony Stop?

Alimony usually ends if:

The receiving spouse remarries
The spouse receiving this income has a new job and is making good money
Job or income loss of paying spouse
The receiving spouse dies

Important Information and Tips to Keep in Mind

Document Everything: Hang on to all messages, emails, photos and documents that support your case. These become important evidence.

Don’t Rush: Divorce is a big decision. Take time to think clearly. Consider counseling before filing.

Safeguard Your Money: Start your own bank account. Document complete list of all assets, investments and properties.

Think Of Your Children: Spare them the courtroom battles. Never disparage your spouse in the presence of children.

Keep Your Cool In Court: Judges like to see respectful conduct. Losing your cool can hurt your case.

Take Mediation Seriously: You could save yourself years of being in court and reduce everyone’s stress if you do.

It’s Not Worth It to Hide Assets: Courts can penalize people who hide money or property during divorce proceedings.

Seek Emotional Support: Talk to friends, family or a therapist. Divorce takes a mental toll, and asking for help is fine.

What Occurs After You Get Your Divorce?

You become single again the minute you receive your divorce decree. Here’s what you should do:

Update Your Documents: Update your marital status on passport, bank accounts, insurance policies and official documents.

Obey Court Orders: Don’t be late for your alimony payments, stick to visitation schedules, and comply with the property-settlement agreement.

Keep Copies Safe: Make multiple certified copies of your divorce decree and secure them. You’ll need them for remarriage or legal matters.

You Can Remarry: After divorce, you are not barred from marrying again. In most cases no waiting period is required.

Tax Considerations: Update your tax filing status. Alimony is reported as income and is deductible for tax purposes by the spouse who pays it (under old tax rules).

Frequently Asked Questions

Q1: My spouse doesn’t want a divorce, can I still get divorced?

Yes, you can file a contested divorce. You will need to get a court to find that there are valid grounds (for example, cruelty or desertion). It would take longer, but you can get divorced even without your spouse’s cooperation.

Q2: Can I divorce within a year of getting married?

Generally, no. The law says you must be married for at least a year, unless of course extreme cruelty, abandonment or other hardships are involved. The court can grant exceptions in rare cases.

Q3: Is it necessary for me to be there in person at the court?

Indeed, generally both spouses will have to attend court, at least on the first and second motion hearings. Your attorney can appear on your behalf at ordinary hearings, but you must be present for recording statements.

Q4: Can I dismiss a case after filing for divorce?

Yes. In mutual consent divorce one has the liberty to withdraw the petition for divorce any time between first and second motion. If you have a contested divorce, you can file an application to withdraw, but it must be approved by the court.

Q5: We live in a different city, or country, from one another. Can we still divorce?

You can still get a divorce. The court where you now live or you last lived together has jurisdiction. Your spouse can also participate through video conference or delegate a lawyer to act on their behalf.

Q6: If wife is earning and husband is not, can a husband ask for alimony?

Yes. If the wife is earning more or the husband is not able to support himself because of a physical disability or unemployment, then he may ask for maintenance from the wife.

Q7: How long do I have to live apart before filing for divorce?

For mutual consent, you need to be separated for one year. For contested divorce on the ground of desertion, the period of separation has to be more than two years. But you don’t need to live apart to file on other grounds like cruelty or adultery.

Q8: Can I go back to my maiden name after divorce?

Yes. You have the option to change your last name back to your maiden name or keep your married name, whichever you prefer. Once you have received the divorce decree, you can change your name on government documents by using this document as proof.

Q9: What if I can’t afford a lawyer?

You may go to Legal Aid Services in your district. The government offers free legal assistance to those who are unable to afford a lawyer. Approach your nearest District Legal Services Authority.

Q10: Can we divorce online or via email?

No. In India, a divorce needs to be physically filed in court. You need to submit papers in court and show up for hearings. But some hearings can currently be conducted by video conference, especially post-COVID.

Wrapping It All Up

Filing for divorce in India is a legal process which requires careful consideration and proper documentation. No matter whether you opt for mutual consent or contested divorce, knowing each step can guide you through the journey in a better way.

Divorce doesn’t define you, and it’s just a legal end to something that didn’t work out. Work towards a brighter future for you and your kids. Surround yourself with people who are supportive, take care of your mental health, and depend on the legal system to defend your rights.

If you are weighing your options for divorce, a seasoned family lawyer can advise you based on your individual circumstances. Each scenario is different, and professional advice helps you make the right decisions. Visit Zista Legalis for expert legal guidance tailored to your needs.

The next few days may be difficult, but try to take it one day at a time. Stay strong. This phase shall pass. The best chapter of your life is the one that’s yet to come, and you’re strong enough to write it well.