Frequently Asked Questions on Divorce in India

Questions on Divorces in India

1. What are the grounds for divorce?

As per Section 13 of the Hindu Marriage Act, 1955 there are following eight grounds of divorce and any of the spouse either husband or wife can file a divorce petition on following grounds:

Grounds for Divorces in India

i) Adultery – when other spouse had voluntary sexual intercourse with any other person

ii) Cruelty – when other spouse inflicts mental and physical cruelty on the petitioner

iii) Desertion – when other party has left the petitioner and not living with him/her without any reasonable reason for a continuous period of not less than two years

iv) Conversion to another religion – When the other party converts to any other religion

v) Insanity – other party has been of unsound mind which cannot be cured or suffering from mental disorder

vi) Venereal Disease - Suffering from venereal disease (sexually transmitted disease) in a communicable form

vii)Renunciation - renounces the world by entering any religious order such as becoming sanyasi etc.

viii) Presumption of death – when the other party has not heard of as being alive for a period of seven years or more.

2. Where can I file my divorce case?

Petition for Divorce under Hindu Marriage Act can be filed at the Family Court of a district where:

i) the marriage was solemnized, or

ii) the other party/spouse is residing, or

iii) both the husband and wife last resided together,

There are two special circumstances where the petition can be filed where the petitioner is residing viz:

i) if the petitioner is wife, or

ii) if the other party is not living in India

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3. What is the minimum time period after marriage is required to file divorce case?

One cannot file petition for divorce before completion of a period of one year after marriage. However, if an application is made before the court stating that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the other party then the court may allow a petition before competition of one year from date of marriage.

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4. How long does a divorce take in India?

The Hindu Marriage Act prescribes that if practicable then divorce proceeding under the Act to be completed within six months from the date of notice issued to opposite party. However, the current workload on courts and lengthy and hectic procedure makes it impractical to complete proceedings under within six months. Therefore, proceedings in case of divorce by mutual consent may complete within 6 months while that of contested divorce can take 1-2 year.

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5. Can court force husband to stay with wife?

This depends on surrounding circumstances. If husband has left the company of his wife without reasonable excuse, then the court can grant decree of restitution of conjugal rights and order the husband to live with his wife. However, if the husband can show the reasonable reasons to court, then no such decree can be passed.

It is pertinent to note that the court cannot ‘force’ the husband to resume cohabitation with the wife. The decree for restitution of conjugal rights is a direction and if the husband does not obey such order, then there is not much consequence against him. If the husband still refuses to resume cohabitation for one year after passing of decree of restitution of conjugal rights, the wife may seek divorce on this ground alone.

6. Can court force wife to stay with husband?

This depends on surrounding circumstances. If wife has left the company of her husband without reasonable excuse, then the court can grant decree of restitution of conjugal rights and may order the wife to live with her husband. However, if the wife can show the reasonable reasons to court, then no such decree can be passed.

It is pertinent to note that the court cannot ‘force’ the wife to resume cohabitation with the husband. The decree for restitution of conjugal rights is a direction and if the wife does not obey such order, then there is not much consequence against her. If the wife still refuses to resume cohabitation for one year after passing of decree of restitution of conjugal rights, then the husband may seek divorce on this ground alone.

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7. Can a wife or husband stay separately from their spouse without divorce in India?

When any person does not want to live and cohabit with his or her spouse and also confuse to get decree of divorce from the court then in such case such person can file petition for judicial separation under Section 10 of Hindu Marriage Act. When court pass such decree of judicial separation in favour of one person then he/she does not need to live and cohabit with his/her spouse and can live separately without getting a divorce.

8. What is the minimum separation period of divorce in India?

The minimum period of separation to be spend before filing a petition for divorce in India depends on the type of divorce and the grounds for divorce.

• If a party is seeking a contested divorce on grounds of adultery, cruelty, conversion to another religion, insanity, venereal disease, and renunciation then there is no minimum period of separation to be spend before filing a petition for divorce.

• If a party is seeking a divorce on ground of desertion, then it needs to show before the court that the other party is living separately without reasonable excuse for more than two years.

• If the husband and wife are filing a joint petition for divorce by mutual consent, then they must spend a time of atleast one year living separately from each other.

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9. Whether wife has to pay to husband after divorce?

Yes. Wife may be asked by the court to pay to husband after divorce. As per Section 25 of the Hindu Marriage Act either wife or the husband can apply before the court for permanent alimony and maintenance. The court while calculating the amount of alimony shall take the monthly salary and property of wife into consideration.

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10. Can a husband refuse to pay alimony?

A husband cannot directly say NO to pay alimony, however, he can contest his wife's claim to alimony on certain grounds such as the wife has been involved in adultery, wife’s monthly income or her property is more than the husband and sufficient enough to provide her financial support and maintain her standard of living, the wife is settled with another partner etc.

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11. How much wife get after divorce in India? Or

How much husband has to pay after divorce?

There is no fixed number or formula to assess how much wife gets after divorce. While calculating the quantum of alimony the court takes into account factors such as social status and standard of living of both the parties, income and assets of both the parties, financial responsibilities of the husband, age of the wife and husband, education and health expenses of child, duration for which the couple has been married, conduct of both the parties.

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