What the law says
Which statute applies depends on the law under which the marriage was solemnised. A Hindu marriage is governed by the Hindu Marriage Act, 1955, where Section 13 sets out the grounds for divorce and Section 13B provides for divorce by mutual consent. A marriage registered under the Special Marriage Act, 1954 is governed by that Act. For Christians the Indian Divorce Act, 1869 applies, and for Muslim women the Dissolution of Muslim Marriages Act, 1939 sets out the grounds on which a decree may be sought.
Maintenance can be claimed on more than one footing. Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, which carries forward what was Section 125 of the Code of Criminal Procedure, allows a wife, child or parent unable to maintain themselves to apply for a monthly allowance. Under the Hindu Marriage Act, Section 24 provides maintenance while the case is pending and Section 25 provides permanent alimony. The Protection of Women from Domestic Violence Act, 2005 allows monetary relief under Section 20 alongside protection, residence and custody orders under Sections 18, 19 and 21.
Custody and guardianship are decided under the Guardians and Wards Act, 1890 read with the Hindu Minority and Guardianship Act, 1956. The controlling principle is the welfare of the child, which Section 13 of the 1890 Act places above the claim of either parent. Courts treat the child's own preference as relevant, with weight increasing with the age and understanding of the child.
How the proceeding runs
A petition is filed before the Family Court having jurisdiction, ordinarily where the parties last resided together or where the respondent resides. Section 9 of the Family Courts Act, 1984 requires the court to make an effort at settlement before proceeding, which in practice means a counselling reference at an early stage.
If the matter is contested it proceeds to evidence, with each side examined and cross examined, followed by arguments and judgment. A petition for divorce by mutual consent under Section 13B runs differently. It is moved jointly, and a second motion follows after a gap that the section sets at not less than six months and not more than eighteen. The Supreme Court held in Amardeep Singh v. Harveen Kaur (2017) that the six month period is directory and can be waived where the separation is long standing and the settlement is genuine.
An appeal against a Family Court decree lies to the High Court under Section 19 of the Family Courts Act, and the period for filing is thirty days from the date of the judgment.
What to bring to the first meeting
Tick these off as you gather them. The list stays ticked on this device, and the page prints cleanly if you would rather carry it on paper.
Where these matters are heard
Petitions for divorce, maintenance, custody and return of property are filed before the Family Court. Applications under the Protection of Women from Domestic Violence Act, 2005 are filed before the Judicial First Class Magistrate, and applications for maintenance under Section 144 of the Bharatiya Nagarik Suraksha Sanhita before the Magistrate having jurisdiction.
VERIFY WITH ADVOCATE — the correct Family Court and its numbering for matters arising at Thiruvananthapuram, Neyyattinkara, Nedumangad and Kattakada, and which Magistrate courts take domestic violence applications in each.
Common questions
How long does a mutual consent divorce take?+
Section 13B of the Hindu Marriage Act, 1955 requires a gap of not less than six months between the first and second motion, extending to eighteen months. In Amardeep Singh v. Harveen Kaur (2017) the Supreme Court held that this waiting period is directory rather than mandatory and may be waived where the parties have already lived apart for a long period and the settlement is genuine. Whether a waiver is available on a given set of facts is for the court to decide.
Can maintenance be claimed while the case is still going on?+
Yes. Section 24 of the Hindu Marriage Act, 1955 provides for maintenance and the expenses of the proceeding while it is pending, and Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 allows an interim order. The Supreme Court laid down a uniform format for disclosing income and assets in maintenance cases in Rajnesh v. Neha (2020), and affidavits in that format are ordinarily required.
Who gets custody of the children?+
There is no automatic rule in favour of either parent. Section 13 of the Guardians and Wards Act, 1890 makes the welfare of the child the paramount consideration, and the court looks at the age of the child, schooling, stability and, where the child is old enough to form an intelligent preference, the child's own wishes. Custody orders are not final in the way a decree is, and can be revisited if circumstances change.
Does a domestic violence case have to be filed along with a divorce?+
No. Proceedings under the Protection of Women from Domestic Violence Act, 2005 are independent. They can be filed whether or not a matrimonial case is pending, and the reliefs under Sections 18 to 22, covering protection, residence, monetary relief, custody and compensation, can be sought together in one application under Section 12.