Hindu Marriage Act, s.13B
How does mutual consent divorce work?
If both spouses agree to end the marriage, they file one joint petition before the family court or district court with jurisdiction.
- Separation first. The couple must have lived separately for at least one year before filing.
- Two motions. The first motion is recorded, then the law sets a six-month waiting period before the second.
- The wait can be waived. In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held the court may waive the six months where settlement is complete and reunion is not possible.
- Settle everything in writing. Alimony, custody, visitation and return of jewellery should be in the settlement terms before the first motion.
Book a consultation on mutual divorce
Hindu Marriage Act, s.13(1)
On what grounds can I file a contested divorce?
Where one spouse does not agree, the other must prove a ground recognised by law. Common grounds include:
- Cruelty, physical or mental.
- Desertion for a continuous period of at least two years.
- Adultery, conversion to another religion, or certain serious mental disorders.
Contested cases take considerably longer than mutual ones, and evidence decides them. Keep messages, medical records and police complaints safely.
Book a consultation on contested divorce
Hindu Marriage Act, s.19
Which court should the case be filed in?
The marriage does not have to have taken place in Nadia for the case to be filed here. A divorce petition can be filed where:
- the marriage was solemnised,
- the other spouse currently lives,
- the couple last lived together, or
- the wife is now living, if she is the one filing.
Choosing the right court early saves travel and adjournments later. A case filed in the wrong place can also be transferred on application.
BNSS s.144 (former CrPC s.125) · HMA s.24, 25
What can I claim as maintenance?
A spouse unable to maintain themselves, and children, can claim monthly maintenance. Interim maintenance can be sought while the main case is pending.
- Income is disclosed on affidavit. Since Rajnesh v. Neha (2020), both sides must file a sworn statement of assets and liabilities.
- The amount depends on facts. Courts consider both incomes, standard of living, responsibilities and children’s needs.
- Orders can be enforced. Non-payment can lead to recovery proceedings.
Book a consultation on maintenance
Guardians & Wards Act, 1890 · HMGA 1956
Who gets custody of the children?
The court’s test is the welfare of the child, not the rights of either parent. Neither father nor mother has an automatic claim.
- Young children under five usually stay with the mother, unless that harms the child.
- Older children’s wishes may be heard by the judge.
- Visitation is normally granted to the other parent, and custody orders can be revisited as circumstances change.
Book a consultation on custody
Protection of Women from Domestic Violence Act, 2005
What relief is available for domestic violence?
Domestic violence under the Act covers physical, sexual, verbal, emotional and economic abuse. An application goes to the Magistrate, directly or through a Protection Officer. The court can order:
- Protection orders stopping further violence or contact.
- Residence orders so the woman is not thrown out of the shared household.
- Monetary relief for expenses and losses, and compensation.
- Temporary custody of children.
Book a consultation on domestic violence
BNS s.85, 86 (former IPC s.498A)
A cruelty or dowry case has been filed against me. What now?
Do not ignore a notice or summons, and do not contact the complainant to pressure them.
- Arrest is not automatic. In Arnesh Kumar v. State of Bihar (2014), the Supreme Court directed police to follow a checklist before arresting in offences punishable up to seven years, including this one.
- Anticipatory bail can be sought from the Sessions Court or High Court where arrest is feared.
- Quashing by the High Court is possible in some cases, including after a genuine settlement between the parties.
Book a consultation on a cruelty case
