There are two routes. In a mutual consent divorce, both spouses jointly petition the Family Court after living separately for at least a year, and after a waiting period, ordinarily six months, the court grants the decree if consent continues. In a contested divorce, one spouse files a petition on a ground recognised by law, and the court decides it after evidence.
Which law applies?
It depends on the parties' religion and how the marriage was solemnised. Hindus, Buddhists, Jains and Sikhs are generally governed by the Hindu Marriage Act, 1955. Marriages under the Special Marriage Act, 1954 follow that Act. Separate laws apply to Christian, Parsi and Muslim marriages.
Mutual consent divorce
- A joint petition is filed stating that the spouses have lived separately for a year or more and have agreed to divorce
- Terms on alimony, custody and property are usually recorded
- The second motion is ordinarily made after six months, which the court may waive in appropriate cases
- The court grants the decree if both spouses confirm their consent
Contested divorce
Grounds under the Hindu Marriage Act include cruelty, desertion for at least two years, adultery, conversion and certain forms of mental disorder. The petitioner must prove the ground with evidence, and the case can take considerably longer.
Connected issues
Maintenance, alimony, custody and the return of streedhan are often decided alongside or in connected proceedings. Courts generally require both spouses to disclose their assets and income.
Mediation
Family Courts usually refer the parties to counselling or mediation. Many disputes are settled there and then converted into a mutual consent divorce.
Jurisdiction
This article describes central Indian law as it generally applies in Gujarat. Procedure, forms and court practice can differ between States and between courts, and the law changes. Check the current position for your matter.