Hindu Divorce


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All You Need to Know About Divorce Under Hindu Law

The Hindu Marriage Act (HMA).

Anyone who is married under the Hindu Marriage Act. See Hindu Marriage for who can marry under the Hindu Marriage Act.

  1. Contested Divorce (one of the spouses wants a divorce and the other spouse refuses)
  2. Divorce by Mutual Consent (both spouses want a divorce)

    If it is a contested divorce, you have to file it under any of the grounds give below. Unfortunately, there is no provision for divorce when one spouse wants a divorce but none of the grounds below exists (known as no-fault divorce). If only one spouse wants a divorce, it has to be filed under some ground.

A Hindu woman can divorce her husband on any of the following grounds (Section 13, HMA):

  1. Adultery: When her husband voluntarily had sexual intercourse with any person other than her.
  2. Cruelty: When the husband or any of his relatives mentally or physically harass the wife. For more details, see below.
  3. Desertion: When the husband leaves his wife. Desertion should be for a continuous period of 2 years immediately before the wife’s petition for divorce. That is, if the husband deserted the wife in January 2020, she can file the petition only after January 2022.
  4. Mental instability: When the husband is so mentally unstable that it is impossible and not reasonable to expect the wife to live with him. For example- schizophrenia, psychopathic disorder, etc.
  5. Physical Diseases: When the husband is suffering from an STD (sexually transmitted disease) or leprosy.
  6. Absconding or missing:When the husband is not heard of being alive for a minimum period of seven years from the people who most likely will have knowledge if the husband had been alive.
  7. Conversion to another religion: When the husband converts to another religion and ceases to be a Hindu.
  8. Abandonment of religion:When the husband formally declares his abandonment of any kind of religion or order to the world, i.e. the husband becomes a sanyasi.
  9. No cohabitation: The husband and wife are not living together for 1 year after the court has passed a decree of separation ( Judicial Separation) or restitution of conjugal rights ( Restitution of Conjugal Rights). For Example: If the court passes a decree in January 2018, the couple has lived separately till January 2019.
  10. **Conviction for offence: When, after marriage, the husband has been convicted as guilty for any of these offences- rape or beastality.
  11. **Child marriage: When the wife was below 15 years of age during the marriage.
  12. **Failure to pay maintenance: When the court has ordered the husband to pay maintenance to his wife, and the husband refuses to do so. For more details on maintenance, see Maintenance and Alimony.

Note: The grounds marked with ** are available exclusively to the wife.

The husband can file a divorce against his wife on the same grounds as listed above. However, the grounds marked with ** are available only to the wife. These are conviction for an offence, child marriage and failure to pay maintenance.

Divorce by Mutual Consent

Divorce by mutual consent is when both the husband and wife agree to get divorced mutually. They do not need to make any allegations against the other spouse. It is important that both the spouses also agree on the terms of the divorce such as maintenance, child custody, etc.

If both husband and wife want a divorce, they can file for divorce by mutual consent, by following the conditions below.

  1. There are certain requirements to file a divorce by mutual consent
    • The couple should not be living together for a year,
    • The couple must be willing to dissolve the marriage mutually.
  2. The parties are given a time of 6 – 18 months from the date of filing the divorce petition to withdraw the petition. That is, if a divorce petition is filed on 1st January 2020, the couple has an opportunity to take the petition back anytime between 1 st July 2020 to 1st July 2021. This time is given for the parties to reconsider the divorce.
  3. After the period of 18 months, if the parties do not withdraw their petition for divorce by mutual consent, the court will grant the divorce.
  4. In a recent judgement, the Supreme Court held that the waiting period of a minimum of 6 months can be relaxed in exceptional situations. (Amardeep Singh v Harveen Kaur)
  5. Remember: This period of 6-18 months is in addition to the one-year waiting period to file a divorce

Procedure to File for a Divorce

You must file your divorce petition in the District Court which has jurisdiction over the place where:

  1. Your marriage took place, or
  2. Where you last lived together with your husband, or
  3. If you have been living separately in India, in the place where your husband is residing
  4. If your husband is living outside India, then you can file for the petition in the place where you are staying after separation.

Any spouse can file for a divorce only after 1 year of marriage, irrespective of the type of divorce- whether contested or mutual. The court will allow for filing a divorce before 1 year only in exceptional, circumstances where either spouse if suffering extreme hardships, based on the facts and circumstances of the case. (Section 14, HMA)

Either spouse can file for a divorce, in case of a contested divorce. In case of divorce by mutual consent, both spouses need to file the petition together.

If it is a divorce with mutual consent, it may take around 6 months-1 year. If it is a contested divorce, it may take around 2-3 years. The exact time will depend on the number of issues involved. For example, what allegations are made, how hard the other party is opposing the divorce, custody, maintenance and alimony, etc. The more the issues, the longer it will take. However, during the pendency, the court may grant you interim (temporary) orders(glossary) for matters such as custody( Hindu Custody) and maintenance( Maintenance and Alimony).

Remember- In a case of divorce, the court has the power to grant judicial separation instead of divorce (See Judicial Separation). The court will do this if it believes that there is scope to revive the marriage, or if one of the spouses asks for separation instead of divorce and the court finds it reasonable. The parties can always opt for divorce after judicial separation.

Divorce Due to Cruelty

There is no definition of cruelty under the Hindu Marriage Act. Cruelty has been defined under Section 498A, Indian Penal Code ( Cruelty). Cruelty under criminal law has a more specific and serious definition. However, when it comes to cruelty under divorce law, the courts interpret the meaning on a case to case basis, depending on the facts and circumstances (ranging from physical violence to ‘my partner is quarrelling with me too much’ to ‘my wife does not take care of my parents’).

Cruelty can be physical or mental. You can understand what constitutes cruelty under other laws, here- Domestic Violence and Cruelty.

Remember: In case of cruelty, apart from divorce, you can also file a criminal case (See Cruelty) and a case for domestic violence (See Domestic Violence).

Yes, even if the husband’s relatives are treating the wife with cruelty, she can file for a divorce under cruelty. The courts interpret what cruelty is on a case to case basis.

Remember: In case of cruelty, apart from divorce, you can also file a criminal case (See Cruelty) and a case for domestic violence (See Domestic Violence) against your husband and the relatives who treat you with cruelty.

Yes, under the Hindu Marriage Act, both spouses can file for divorce against the other spouse on grounds of cruelty. So even your husband can allege cruelty against you and file for divorce.

Practical tip: Usually, when you file for a divorce, it is common for the husband to make allegations of cruelty such as, ‘she would not take care of the house’ or ‘she would not cook food.’ You don’t need to worry about all this, as courts know how to identify the truth. Also, not taking care of the house or not cooking does not amount to cruelty, as it is not the woman’s duty alone to do so, especially if she is also working outside the house.

Further Information
  1. A couple has an opportunity to get a divorce by mutual consent where both the spouses agree to divorce (For details on divorce by mutual consent, see above).
  2. But if your husband does not agree to get a divorce by mutual consent, then you can file for a contested divorce on any of the grounds given above.
  1. Your remedies: If the husband leaves his wife without any reason or information, the wife has the following options:
    • She can either ask for restitution of conjugal rights if she wants the husband to come back and live with her (see Restitution of Conjugal Rights) or
    • She can ask for judicial separation on the ground of desertion if she wants to live separately but does not want a divorce (see Separation).
    • She can file for a divorce from her husband on the ground of desertion (see grounds for divorce above).
  2. When can you file petitions for the above-
    • For restitution of conjugal rights, the law does not prescribe any waiting period. However, you should file after a reasonable period, like 6 months, otherwise the court may not accept your petition and ask you to wait it out.
    • You can file a petition for separation or divorce on the ground of desertion only after your husband has deserted you for a continuous period of 2 years. That is, if the husband deserted the wife in January 2020, she can file for the petition only after January 2022.
  3. Where can you file the petitions?- In the District Court which has jurisdiction (for details, see above).

Please note: This information has been made available to you for your benefit on an ‘as is’ basis, and is only for your information. It does not constitute legal advice and cannot substitute professional legal advice. Our disclaimer policy can be viewed here ( disclaimer policy)

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