How do I file for divorce in India?

1Mutual-consent divorce — the faster route

If both spouses agree to part ways, mutual consent (Section 13B HMA) is the simplest path:

• You must have been married at least one year and have been living separately (commonly cited as a year)
• Both spouses jointly file a petition, settling alimony, asset division and child custody between them
• There's a 'first motion', a cooling-off period, then a 'second motion' that leads to the divorce decree

2Contested divorce — when one spouse files

If one spouse doesn't agree, the other must file on a statutory ground and prove it. Under the Hindu Marriage Act, the grounds include:

• Cruelty (physical or mental)
• Desertion for a continuous period of two years or more
• Adultery
• Conversion to another religion, or an incurable mental disorder
• A spouse not being heard of as alive for seven years

3What gets decided alongside the divorce

A divorce isn't just about ending the marriage — these related issues are settled too:

• Alimony/maintenance — interim (during the case) and permanent (Sections 24 and 25 HMA)
• Child custody and visitation — decided on the child's best interests
• Division of assets and return of belongings (including streedhan)

4Different laws for different communities

India doesn't have one divorce law — it depends on the marriage:

• Hindus, Sikhs, Jains, Buddhists: Hindu Marriage Act 1955
• Muslims: Muslim personal law (and the Dissolution of Muslim Marriages Act)
• Christians: Indian Divorce Act 1869
• Inter-faith or civil marriages: Special Marriage Act 1954

5The six-month wait can be waived

A mutual-consent divorce requires two motions with a gap of six months between them, and that gap is widely believed to be mandatory. It is not.

In Amardeep Singh v Harveen Kaur (2017) the Supreme Court held the period is directory rather than mandatory, and can be waived where the parties have already lived separately for more than the statutory period, all issues including alimony and custody are genuinely settled, mediation has failed, and the waiting period would only prolong their agony.

The waiver is applied for by motion before the family court itself, which can decide it — the parties do not have to approach the High Court or the Supreme Court.

6Where to file, and what to do if it is the wrong place

A petition may generally be filed where the marriage was solemnised, where the couple last resided together, or where the respondent resides — and, in a petition by the wife, where she is currently residing.

That last limb matters, because it removes the need for a wife who has returned to her parents' home to litigate in the city she left.

Where proceedings are filed in a place that makes attendance genuinely impracticable, a transfer petition lies to the Supreme Court to move the case to the other spouse's city. In practice these are frequently allowed where the wife is the applicant, and video-conferencing directions are now common as an alternative.

7Irretrievable breakdown is not a ground you can plead

Irretrievable breakdown of marriage is not among the grounds in the Hindu Marriage Act or the other personal laws. A petition simply asserting that the marriage is over will not succeed on that basis.

The Supreme Court can dissolve a marriage on that footing using its powers under Article 142 of the Constitution to do complete justice, and in Shilpa Sailesh v Varun Sreenivasan (2023) a Constitution Bench confirmed it may do so directly, without the parties going through the six-month waiting period.

But that is the Supreme Court's own jurisdiction. A family court cannot grant a divorce on irretrievable breakdown, so a petition there must still be framed on one of the statutory grounds — cruelty, desertion, adultery, conversion, mental disorder or the others.

8Interim relief while the case runs

A contested divorce can take years, and neither spouse has to fund that period unaided.

Section 24 of the Hindu Marriage Act, and the equivalent provisions in the other personal laws, allow either spouse to apply for maintenance during the proceedings and for the expenses of the litigation itself. It is available to a husband as well as a wife where he has no independent income sufficient for his support.

Interim custody and visitation can be settled the same way, without waiting for the final decree. Applications for interim relief are meant to be decided quickly, and Rajnesh v Neha directed that they ordinarily be disposed of within sixty days of notice to the other side.