How to Apply for Divorce in India? Step-by-Step Process

Divorce - a word that is considered sinful to even speak about in the society we live in. Even today where the ideology and perceptions of people are ‘modernizing’, divorce is still considered a taboo. Many people choose to suffer in their so-called marriages by holding onto the last thread of hope.  

Divorce tears people apart inside. The endless legal forms and complicated procedures just make a heartbreaking situation even more difficult to manage.

To deal with this hassle, we have simplified the extra-long complex process into easy steps.  

Let’s dive deep into knowing about the procedure to file divorce in India! 

What is Divorce? 

Divorce is the formal termination of marriage between a husband and wife through legal means.

Procedure to File Divorce  

Mutual Consent 

The procedure for divorce filed by Mutual Consent under Hindu Marriage Act,1955, Indian Divorce Act,1869, Parsi Marriage and Divorce Act,1936, Muslim Law and Special Marriage Act, 1954 are same.  

Step 1: Draft a petition stating the reason for divorce and both parties should agree with it. 

Step 2: File the petition in family court jointly with respective lawyers.  

Step 3: After examining the petitions along with the documents, the court will then pass the order for recording the oath of statement.  

Step 4: Six months of reconciliation time is given to both parties. Although, the Hon’ble Supreme Court has held that the six months cooling period could be waived off in case there is mutual settlement of differences between both parties. The court thought that the cooling period will only prolong their sufferings, in such cases the cooling period could be waived off.  

Step 5: If neither of the parties have reconciled after six months of cooling period then they are supposed to appear for the final hearing in the court. (Parties must appear within 18 months from the date of divorce petition filing, for second motion) 

Step 6: At the final hearing, the court passes divorce decree, dissolving the marriage effectively.  

Contested Divorce 

The procedure for divorce filed under Contested interest for Hindu Marriage Act,1955, Indian Divorce Act,1869, Parsi marriage and divorce act,1936, Muslim Law and Special Marriage Act, 1954 depends upon the grounds mentioned under these laws. 

Step 1: Draft a petition stating the grounds for divorce. The petition will be filed in the family court along with relevant documents supporting the case, vakalatnama and affidavits. 

Step 2: The court will then scrutinize the petition by acknowledging the facts and grounds of the contesting party. 

Step 3: After scrutinizing the petition, the court will then send a copy of the petition and the notice to the opposition party. The opposition party will then appear in court in the next hearing with their lawyers and address the allegations made against them. 

Step 4: The court will try to persuade the parties to reconcile. The court may suggest the parties for mediation. If the mediation process fails to provide an amicable solution, then the court will move ahead with divorce proceedings. 

Step 5: The court will then frame the issues and record the evidence. The court will ask both parties to present the evidence and be prepared for cross-examination. The court can also ask the parties to bring the supporting witnesses. 

Step 6: On a particular date, the lawyers of both sides will be required to present their final arguments.  

Step 7: After final arguments, the court will pass the decree of divorce. 

For understanding more about the divorce procedure, use digilawyer.ai! 

Divorce Under Hindu Marriage Act 

1. Mutual Divorce 

Under Hindu Marriage Act, Mutual Divorce is when both husband-and-wife mutually agree for divorce, peacefully. There are only two major requirements for mutual divorce, one is mutual consent, and the other one is living separately for at least a year. 

Documents for Mutual Divorce 

1. Residence proof of both  
2. Marriage Certificate 
3. Wedding photographs of husband and wife 
4. Proof of failed mediation and reconciliation 
5. Evidence to show that the husband and wife are living separately for a year. 
6. Details of possessions and present incomes 
7. Family Background details 
8. Income tax statements of both 
9. Details of property and assets owned by each spouse

2. Contested Divorce 

Contested Divorce under Hindu Marriage Act refers to when the divorce petition is filed by one spouse. 

Grounds for Obtaining Contested Divorce 

1. Cruelty: Contested divorce can be obtained if the spouse is willfully hurting their partner, putting them in a dangerous position which can cause damage to their body and mind. 
2. Desertion: When a spouse willfully abandons their partner for more than 2 years without any intention of coming back, it is known as desertion. 
3. Conversion: If either of the spouse ceases to be Hindu, then it could be a ground of divorce under Hindu Marriage Act. 
4. Unsound mind of spouse: If a spouse is of unsound mind, then another one can file for divorce. 
5. Renunciation of World: If either of the spouses has renounced the world and entered the holy orders, it can be a ground for divorce. 

Documents Required for Contested Divorce 

1. Residence proof of both  
2. Marriage Certificate 
3. Wedding photographs of husband and wife 
4. Evidence supporting the grounds of Divorce 
5. Professional details of both the parties 

Divorce Under Muslim Law 

Muslims are divided into two sects that are Shia and Sunnis. They also have four main schools of Muslim that are Hanafi, Maliki, Hanabali and Shafi. They all have different marriage and divorce laws.  

Under the Muslim Personal Laws, marriages are considered as a contractual relationship to legalize sexual intercourse and procreation. 

There are two ways a Muslim marriage can be dissolved. 

1. By divorce  
2. Upon the death of a spouse 

There are four ways to dissolve a marriage through divorce: 

1. By Husband 

(A) Talaq 

Talaq can be given by a Muslim husband to his wife to dissolve their marriage. It is further classified into two more categories: 

(i) Talaq-ul-Sunnat: This type of divorce is recognized by Shias and Sunnis as a valid form of Divorce. This provides chances of reconciliation and compromises between husband and wife. 

This has two more classification: 

Ahsan: In Ahsan, the husband pronounces single talaq followed by Iddat. 

Hasan: In Hasan, the husband pronounces talaq consecutively for three Iddat period and opportunities of reconciliation is there between each pronouncement.  

(ii) Talaq-ul-Biddat: This form of divorce is not the approved form of divorce and does not consider a proper way to give divorce. This is also known as Triple Talaq.  

If the parties want to marry each other again, female will have to perform ‘nikah halala’. ‘Nikah Halala’ means the female will have to marry someone else and then divorce him to get remarried.  

Note: This type of talaq is not legal in India. 

Shayara Bano v. Union of India is landmark judgement by Supreme Court. This was the remarkable moment for the Indian Constitution and gender justice in India. Supreme Court declared the practice of Triple Talaq unconstitutional. The court established an important legal precedent to reform personal laws, provide religious freedom or gender equality.  

(B) Ila 

The power of divorce is given to husband to pronounce divorce. In this the husband states that he will not enter any sexual intercourse with his wife, and he will follow the vow of continence for four months.  

After the pronouncement of divorce, the wife is supposed to observe an Iddat period of four months. 

If husband and wife indulge in any sexual activity, then the divorce will be revoked. Only after the completion of Iddat period is divorce said to be irrevocable.  

(C) Zihar 

In this form of divorce, the husband compares his wife with any female that is under the umbrella of prohibited relations that is mother, sister or any other female. To use this method of divorce the husband should be an adult and be of a sound mind. 

2. By Wife 

Talaq-e-tafweez 

A husband of sound mind and who is an adult, delegates the right to divorce his wife. It is a form of agreement made before or after the marriage takes place. The wife can seek divorce if the husband does not fulfill the conditions written in the agreement.  

3. By Mutual Consent  

(A) Khula 

The wife offers the husband for divorce; the husband considers it. It requires consent from both husband and wife but the will for divorce is of wife. Like other divorces, Iddat is observed. 

(B) Mubarat 

In Mubarat, divorce takes place with the consent of both husband and wife. Any of them can offer divorce, the other one has to accept the offer. 

4. By Judicial decree under Dissolution of Muslim Marriage Act, 1939 

(A) Lian 

In Lian, if the husband falsely charges the wife of adultery, then the wife has the authority to sue the husband and seek divorce.  

(B) Faskh 

In Faskh, if the husband and wife are incompatible with each other, they can seek divorce.  

Documents Required for Divorce Under Muslim Personal Laws 

1. Nikahnama 
2. Address proof of both husband wife 
3. Income tax return of two years 
4. Details of Assets owned 
5. Evidence of allegation 

Visit digilawyer.ai to know more about Muslim personal law! 

Divorce Under Christian law 

According to section 10A of Indian Divorce Act, 1869, there are 2 ways to file a Christian Divorce in India: 

1. Mutual Divorce 

If the husband and wife agree that they are not able to live peacefully together and they have been living separately for more than two years they can mutually file for divorce in District Court.  

Also Read: How to File Mutual Divorce? 

2. Contested Divorce 

Either the husband or wife can file for the divorce under the following grounds: 

• Ceased to be a Christian 
• Either one of them is of unsound mind for at least two years 
• Suffering from incurable leprosy for at least two years 
• No whereabouts of husband for seven years 
• Willfully not consummating the marriage  
• Abandoned for at least two years 
• Husband is accused of rape, sodomy or bestially 
• Failing to comply for two years or more the restitution of conjugal rights decree 

Documents Required for Divorce Under Christian law 

1. Marriage Certificate 
2. Address Proof of husband and wife 
3. Income tax return of previous two years 
4. Details and documentation of assets owned 
5. Current employment status and salary 

Divorce Under Parsi law 

According to Parsi Marriage and Divorce Act, 1936, the marriage can be nullified, dissolved or divorces on several grounds. 

Section 30: Suit for Nullity 

This sections states that the marriage can be considered as null and void if any circumstances arise where the marriage cannot be consummated due to some natural causes. 

Section 31: Suit for Dissolution 

If the husband or wife has not been seen or heard from their respective spouse for more than seven years, then their marriage can be dissolved. 

Section 32: Grounds for Divorce 

This section deals with the grounds of filing for divorce. 

• When one party is refusing to consummate the marriage within one year of being married.  
• When one party was of unsound mind at the time of wedding and the partner was unaware of the mental illness, provided that the divorce should be filed within 3 years from the date of marriage.  
• When the wife at the time of marriage was pregnant with another person’s child which the husband was unaware of. This petition can only be filed within 2 years from the date of marriage and marital intercourse had not taken place. 
• When either of the spouse has committed adultery, fornication, bigamy, rape, unnatural acts or willfully treating another spouse with cruelty then the divorce can be filed from the date the plaintiff knowing the facts .
• If either of the spouse has been granted imprisonment of seven years or more and he/she have already been to prison for one year, then divorce can be filed. 
• The spouse has deserted another one for at least 2 years. 
• The spouse is ceased to be a Parsi. 

Section 32B 

Under this section, the divorce shall be filed by mutual consent: 

• Divorce should be mutually agreed upon by both parties 
• Should be living separately for one year  

Documents Requirements Under Parsi Law  

1. Photographs 
2. Address Proof of both parties 
3. Marriage Certificate 
4. Income tax return 
5. Financial statements 
6. Details of movable and immovable properties of both parties 

Divorce Under Special Marriage Act,1954 

A person can file for divorce under section 27 of the Special Marriage Act, 1954 in the District Court if he/she has been married under the special marriage act fulfilling all the requirements.  

The petition can be filed by either husband or wife on grounds of: 

1. Either of the spouses have voluntary sexual intercourse with other people after solemnizing the marriage. 
2. If any of them is subjected to cruelty 
3. The spouse must be deserted for a continuous period of two years or more without any explanation. 
4. If either of the spouses are of unsound mind for the period of two or more years. 
5. If the spouse is suffering from venereal disease or leprosy. 
6. If both husband and wife are living separately for at least one year. 

To know more about the special marriage act,1954, you can visit digilawyer.ai! 

Important Aspects of Divorce 

Maintenance/Alimony 

Maintenance or Alimony is the amount paid to the husband/wife by his/her spouse. It is for financial assistance. It can vary in case of different religions. 

This money can be paid one time or at different intervals to help the spouse that cannot meet their daily expenses. 

On grounds of Adultery, maintenance by husband is denied. 

Child Custody 

During the process of Divorce, the topic that is most discussed is Child Custody. It is a very sensitive topic to deal with. If the court orders something that is not beneficial for the children, then the children will have to suffer.  

Thus, the court takes several factors into account while making this decision such as child welfare, financial condition, safe environment and so on. 

Division of Property 

Division of property is a complex topic in the divorce process. There are multiple factors to be considered for dividing the property between husband and wife such as contribution of finances, needs of children, length of marriage, etc. 

Conclusion 

Divorce is a tough journey, often clouded by societal judgments and emotional struggles. However, it’s important to see it not as a failure but as a courageous step toward reclaiming your peace and happiness. 

Understanding the legal process, whether for a mutual or contested divorce, can provide clarity and reduce stress. Being informed about your rights, required documents, and procedural steps empowers you to face this transition with confidence. 

The important aspects of divorce are crucial to discuss at the time of divorce otherwise it can lead to disputes later.  

Digilawyer.ai can help you with understanding more deeply about applying divorce and the grounds for divorce.