How to Get a Divorce in India 2026 — Procedure Under Hindu Marriage Act and Special Marriage Act

Advocate Akhil Singh divorce proceduremutual consent divorcecontested divorceHindu Marriage ActSpecial Marriage ActSection 13Bfamily courtalimonymaintenancecruelty divorcelucknowuttar-pradeshindia

This article is for educational and legal awareness purposes only. It does not constitute legal advice or solicitation. Please consult a qualified advocate for advice on specific legal matters.

Introduction

Divorce in India is governed by personal laws depending on the parties’ religion, as well as the secular Special Marriage Act, 1954 (SMA). For Hindus, Buddhists, Jains, and Sikhs, the Hindu Marriage Act, 1955 (HMA) applies. This article covers the grounds for divorce, the procedure for both mutual consent and contested divorces, jurisdiction, maintenance, and key Supreme Court rulings.

Grounds for Divorce Under the Hindu Marriage Act, 1955

Section 13(1) — Grounds Available to Either Spouse

Either the husband or the wife may file a petition for divorce on the following grounds:

  1. Adultery (Section 13(1)(i)) — Voluntary sexual intercourse with any person other than the spouse after solemnisation of the marriage.
  2. Cruelty (Section 13(1)(ia)) — Mental or physical cruelty of such a nature that it would be unreasonable to expect the petitioner to live with the respondent. Cruelty is assessed cumulatively — isolated incidents may not suffice, but the overall pattern of conduct is considered.
  3. Desertion (Section 13(1)(ib)) — Continuous desertion for a period of not less than two years immediately preceding the presentation of the petition. Desertion requires both the fact of separation and the intention to permanently forsake the other spouse.
  4. Conversion (Section 13(1)(ii)) — The respondent has ceased to be a Hindu by converting to another religion.
  5. Mental Disorder (Section 13(1)(iii)) — The respondent has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
  6. Venereal Disease (Section 13(1)(v)) — The respondent is suffering from a venereal disease in a communicable form.
  7. Renunciation (Section 13(1)(vi)) — The respondent has renounced the world by entering any religious order.
  8. Presumption of Death (Section 13(1)(vii)) — The respondent has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard.

Note: Leprosy was removed as a ground for divorce by the Personal Laws (Amendment) Act, 2019, recognising that the disease is curable and its inclusion was discriminatory.

Section 13(2) — Additional Grounds for Wife

A wife may also present a petition for divorce on the following grounds:

  • Bigamy — The husband married another wife before the commencement of the HMA, and that wife was alive at the time of the petitioner’s marriage.
  • Sexual Offences — The husband has been guilty of rape, sodomy, or bestiality since solemnisation of the marriage.
  • Maintenance Decree — A decree or order of maintenance has been passed against the husband under Section 125 of the Code of Criminal Procedure (now Section 144 BNSS), and cohabitation has not been resumed for one year or more after such order.

Mutual Consent Divorce — Section 13B HMA

Pre-Conditions

Both parties must establish that:

  • They have been living separately for one year or more.
  • They have not been able to live together.
  • They have mutually agreed that the marriage should be dissolved.

Procedure

  1. Joint Petition — Both spouses jointly file a divorce petition before the Family Court having jurisdiction, along with supporting affidavits, the marriage certificate, identity proof, and a settlement agreement covering alimony, child custody, and property division.
  2. First Motion Hearing — The court records statements of both parties confirming their mutual consent. The court may refer the parties to mediation or counselling.
  3. Cooling-Off Period — A mandatory waiting period of six months follows after the first motion, but not exceeding eighteen months from the date of filing (Section 13B(2)).
  4. Second Motion Hearing — Both parties appear again and confirm that their consent remains alive and subsisting. If either party has withdrawn consent before the second motion, the petition fails.
  5. Decree of Divorce — The court, after satisfying itself that the conditions are met, passes a decree of divorce.

Waiver of Cooling-Off Period — Amardeep Singh v. Harveen Kaur (2017)

The Supreme Court held that the six-month cooling-off period under Section 13B(2) is directory, not mandatory, and courts have the discretion to waive it. All four conditions must be met:

  1. The statutory one-year separation period plus the six-month cooling-off period have already elapsed before the waiver application (i.e., at least 18 months of separation).
  2. All attempts at mediation and conciliation have definitively failed.
  3. All ancillary matters (alimony, child custody, property) have been conclusively settled.
  4. The waiting period would only prolong the parties’ agony.

Timeline

  • Standard: 6 to 12 months from filing to decree.
  • With waiver: As short as 1 to 3 months if all conditions are met and the court agrees.

Contested Divorce — Section 13 HMA

Procedure

  1. Filing the Petition — The petitioning spouse files a divorce petition before the Family Court, setting out the facts, the ground(s) for divorce, and the relief sought, supported by an affidavit and documentary evidence.
  2. Issuance of Notice — The court issues notice to the respondent by registered post, process server, or by publication (if the respondent’s whereabouts are unknown).
  3. Written Statement — The respondent files a written statement either denying the allegations, presenting their version, or raising counter-claims.
  4. Mandatory Mediation — Under Section 9 of the Family Courts Act, 1984 and Order XXXII-A of the Code of Civil Procedure, the court refers the parties to mediation or counselling before proceeding further. If reconciliation succeeds, the petition is withdrawn.
  5. Framing of Issues — The court identifies the points in dispute based on the pleadings of both parties.
  6. Evidence — The petitioner leads evidence first (examination-in-chief typically by affidavit in Family Courts, followed by cross-examination), followed by the respondent’s evidence. Documentary evidence includes WhatsApp messages, emails, medical records, FIR copies, and financial records.
  7. Final Arguments — Both sides present written and oral submissions summarising evidence and legal submissions.
  8. Judgment and Decree — The court passes a decree of divorce or dismisses the petition. The decree may also address child custody, maintenance, and property.

Timeline

Contested divorces in India typically take 2 to 5 years in Family Courts, depending on complexity and case pendency. In UP, including Lucknow, the average contested divorce may take 3 to 5 years. Appeals to the High Court and Supreme Court can extend the timeline further.

Divorce Under the Special Marriage Act, 1954

Section 27 — Grounds for Divorce

Couples married under the Special Marriage Act may seek divorce under Section 27 on grounds that largely mirror the HMA, with certain differences:

  • Adultery, Desertion (2 years), Cruelty, Mental Disorder, Venereal Disease, and Presumption of Death — Available to either spouse, similar to HMA.
  • Imprisonment (Section 27(1)(c)) — The respondent has been sentenced to imprisonment for seven years or more for a criminal offence. This ground is available under the SMA but not under the HMA.
  • Conversion and Renunciation — Not available as specific grounds under the SMA (unlike the HMA).

Section 28 — Mutual Consent Divorce

The procedure mirrors Section 13B of the HMA — joint petition, one-year separation requirement, six-month cooling-off period, and second motion confirmation. The Amardeep Singh waiver ruling applies to Section 28 SMA petitions as well.

Jurisdiction — Where to File

Under Section 19 of the HMA, a divorce petition must be filed before the District/Family Court within the local limits of whose jurisdiction:

  • The marriage was solemnised, or
  • The respondent ordinarily resides at the time of filing, or
  • The parties last resided together, or
  • The wife ordinarily resides at the time of filing (if the wife is the petitioner — added by the 2003 amendment).

In Lucknow, divorce petitions are heard by the Principal Judge, Family Court, Lucknow. Appeals lie to the Allahabad High Court (Lucknow Bench).

Maintenance and Alimony

Section 24 HMA — Interim Maintenance (Pendente Lite)

Either spouse may apply for maintenance during the pendency of any proceeding under the HMA if they have no independent income sufficient to support themselves and meet the expenses of the proceedings.

Section 25 HMA — Permanent Alimony

At the time of passing any decree or at any time thereafter, the court may order the other spouse to pay:

  • A gross lump sum, or
  • A monthly or periodical sum for a term not exceeding the applicant’s lifetime.

The order may be modified or rescinded if circumstances change (such as the applicant’s remarriage).

Factors Considered by Courts

The Supreme Court in Rajnesh v. Neha (2020) issued comprehensive guidelines on maintenance:

  • Income and property of both spouses (full financial disclosure by affidavit is mandatory).
  • Standard of living enjoyed during the marriage.
  • Age, health, and earning capacity of the applicant.
  • Social and financial status of both parties.
  • Custody arrangements and number of dependents.
  • The applicant’s own income and assets.
  • Maintenance is rehabilitative, not punitive.
  • A spouse should not be required to pay maintenance in multiple concurrent proceedings under different statutes — a single comprehensive order should cover all.

Key Supreme Court Decisions

The Supreme Court granted divorce on the ground of cruelty after the parties (married 1975, separated 1994) had spent decades in litigation. The Court observed that “a marriage that is dead for all purposes cannot be revived by a judicial verdict” and recommended that Parliament add irretrievable breakdown as a statutory ground. Permanent alimony of Rs 25 lakh was awarded.

Shilpa Sailesh v. Varun Sreenivasan (2023) — 2023 INSC 468

A five-judge Constitutional Bench held that the Supreme Court may directly grant divorce on the ground of irretrievable breakdown of marriage under Article 142 of the Constitution, even though it is not a statutory ground under the HMA. Key holdings:

  • The Supreme Court can exercise this power even if one party opposes the divorce.
  • This power is exclusive to the Supreme Court — High Courts do not possess Article 142 powers.
  • Factors to assess include: duration and date of last cohabitation, nature of allegations, cumulative impact of litigation, and period of separation (six years or more is a significant indicator).
  • The power must be exercised with safeguards — the court must ensure “complete justice” to both parties.

Rinku Baheti v. Sandesh Sharda (2024) — 2024 INSC 1014

Clarifying the Shilpa Sailesh ruling, the Supreme Court held that irretrievable breakdown should not be deployed to grant divorce where one party is solely responsible for the breakdown and stands to benefit from it. The court must ensure fairness to both parties.

Amardeep Singh v. Harveen Kaur (2017)

The six-month cooling-off period under Section 13B(2) is directory, not mandatory. Courts may waive it subject to the four conditions discussed above under mutual consent divorce.

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Disclaimer: The information provided on this website is for general legal awareness and educational purposes only. It does not constitute legal advice, advertisement, or solicitation. No reader should act or refrain from acting based on this information without seeking professional legal counsel. Advocate Akhil Singh and this website are not liable for any actions taken based on the content provided herein.

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