Divorce & Maintenance: All that you want to know

A BLOG BY

GAURAV RAJ BHAGAT
ADVOCATE
HIGH COURT M.P

What is Divorce

Divorce, also known as dissolution of marriage, is the process of terminating a marriage or marital union.

Divorce usually entails the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country or state. 

What does Indian Divorce Act ( talks about Divorce) 

Divorce is the legal dissolution of the marital union between a man and a woman. According to this act, the separation is granted by the court of law after receiving a petition from either wife or husband or it can also be applied mutually.

Divorce is followed by granting alimony, child custody, and child visitation, distribution of property and distribution of debts. Before opting for a divorce, the couple should be aware of the fact about the divorce procedure in the country.

What does The Indian Divorce Act deals with

The Indian Divorce Act was drafted into the Indian legal system in the year 1869. In India divorce rules and procedure varies according to the community of the couple. Divorce among Hindus, Buddhists, Sikhs and Jains are governed by the Hindu Marriage Act, 1955, Muslims by the Dissolution of Muslim Marriages Act, 1939, Parsis by the Parsi Marriage and Divorce Act, 1936 and the civil and inter-community marriages by the Special Marriage Act, 1956.

The State of Jammu and Kashmir is excluded under the ambit of this divorce Act, though residents domiciled in other states but residing in Jammu and Kashmir would qualify for these rules and provisions.

Types of Divorce Petitions

Indian Couple can get a divorce with mutual consent (no-fault divorce or mutual divorce), or either spouse may file for divorce without the consent of the other (fault divorce) as per Indian divorce act.

What is divorce by mutual consent?

Under Section 13-B of the Hindu Marriage Act, 1955, the parties can seek divorce by mutual consent by filing a petition before the court. Mutual consent means that both the parties agree for peaceful separation.

Mutual Consent Divorce is a simple way of coming out of the marriage and dissolve it legally. Important requirement is the mutual consent of the husband & wife.

There are two aspects on which Husband & Wife have to reach to consensus.

One is the alimony or maintenance issues. As per Law there is no minimum or maximum limit of maintenance. It could be any figure or no figure.

Next important consideration is the Child Custody. This can also be worked out effectively between the parties. Child Custody in Mutual Consent Divorce can be shared or joint or exclusive depending upon the understanding of the spouses.

Reasons for Divorce

 (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) is living in adultery; or

(ii) has ceased to be a Hindu by conversion to another religion; or

(iii) has been incurably of unsound mind for a continuous period of not less than three years immediately preceding the presentation of the petition; or

(iv) has, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or

(v) had, for a period of not less than three years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or

(vi) has renounced the world by entering any religious order; or

(vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; or

(viii) has not resumed cohabitation for a space of two years or upwards after the passing of a decree for judicial separation against that party; or

(ix) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree.

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,-

(i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner:

Provided that in either case the other wife is alive at the time of the presentation of the petition; or

(ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.

When can the divorce by mutual consent be filed?

The parties intending to dissolve marriage are required to wait for at least one year from the date of marriage.

They have to show that they have been living separately for a period of one year or more before the presentation of the petition for divorce and that during this period of separation they have not been able to live together as husband and wife.

Where to file the divorce petition?

In the family court of the city / district where both the partners lived together for the last time, which was their matrimonial home.

How to file divorce petition by mutual consent? What happens in the court?

The divorce petition is in the form of affidavit, which is to be submitted to the family court. After the filing of the petition and recording the statement of both the parties, the court generally adjourns the matter for a period of 6 months.

After six months the parties have to present themselves again in the court for making a second motion confirming the mutual consent filed earlier. It is only after this second motion that a decree of the divorce is granted by the court.

Can any one party withdraw the mutual consent petition after filing in the court? What will happen by that?

During this period of 6 months when the petition is pending in the court, any of the partner is fully entitled to withdraw the mutual consent by filing an application before the court stating that he/she does not wish to seek divorce by mutual consent.

In such circumstances, the court grants no divorce decree.

What can the other partner do under such circumstances?

There is no option available to the other party to such circumstances except to file a normal petition for divorce under the provisions of the Section 13 of the Hindu Marriage Act, 1950.

In such a situation divorce can be granted only on certain specified grounds like cruelty; desertion; voluntary sexual inter-course with another person; the other spouse being of unsound mind; conversion of religion by the other spouse; Leprosy; venereal disease; a spouse having renounced the world or being missing for a period of more than 7 years.

Documents Required to File Divorce

The following documents have to be furnished for filing a divorce in India according to the Indian Divorce Act:

• Address proof of husband
• Address proof of wife
• Marriage certificate
• Four passport size photographs of the marriage
• Evidence for proving spouses are living separately since more than a year
• Evidence of the failed attempts of reconciliation
• Income Tax statement for the last two years
• Details of the profession and present remuneration
• Information relating to family background

Details of property and other assets owned by the petitioner

Procedure for Filing a Divorce

The procedure is regulated for filing a divorce in India is generally regulated by the provision of Code of Civil Procedure, 1908. The procedure for seeking a divorce is initiated by filing a petition which is followed by affidavits from both the partners in the district court.

The petition must state the following details

• Name of the parties
• Status and domicile of the parties
• Date and place of marriage
• A principal permanent place where the parties cohabit
• Place where the parties last resided together
• Names of the children of the marriage( if any) with the date of birth
• The ground of seeking divorce or separation
• The facts and details by which the petitioner seeks the relief
• That the parties are not deceiving the court by collaborating

• The averments made are verified after six months couple has to re-appear in the front of court after filing a second motion petition for mutual consent divorce.
• After hearing from both the husband and wife, if the judge is satisfied that all essential grounds are filing the recruitments and meeting the needs of divorce, the couple grants a mutual divorce decree.
• Custody of child, alimony to wife and litigation expenses will be considered on issuing a decree for divorce.                                                                                                                 Dismissal of petition                                                                              
• In case the court, on the evidence in relation to any such petition, is satisfied that the petitioner’s case has not been proved, or is not satisfied that the alleged adultery has been committed, or find that the petitioner has, during the marriage, been accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of,
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• or that the petition is presented or prosecuted in collusion with either of the respondents, then, and in any of the said cases the court shall dismiss the petition.
  When a petition is dismissed by a District Court under this section, the petitioner may, nevertheless, present a similar petition to the High Court.
  In case the court, on the evidence in relation to any such petition, is satisfied that the petitioner’s case has not been proved, or is not satisfied that the alleged adultery has been committed, or find that the petitioner has, during the marriage, been accessory to, or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of,
  or that the petition is presented or prosecuted in collusion with either of the respondents, then, and in any of the said cases the court shall dismiss the petition.
  When a petition is dismissed by a District Court under this section, the petitioner may, nevertheless, present a similar petition to the High Court.
                                                                                          Divorce in India under the Hindu Marriage Act, 1955 can be sought in two situations:
  

  
  1.  With mutual consent of both the parties and final settlement.
  2.  Without mutual consent where one of the parties seeks a divorce.
  Section 13 of the Hindu Marriage Act explains the situations under which a person can seek contested divorce when the other party is not ready for a divorce with mutual consent.
  1. Adultery: Having sexual intercourse outside marriage is termed as adultery and is a valid ground for divorce without mutual consent.
  2. Cruelty: Any kind of physical or mental injury that causes fear or belief of fear of death, or health. It is important to note that the mental cruelty is also a valid ground for divorce normally judged as subsequent acts and not a single act. The case of Neelu Kohli vs. Naveen Kohli, AIR 2004 falls into this category. However, the court ruled out the divorce petition in the case of S Hanumanta Rao vs. Ramani, AIR 1999 as a single instance cannot be proven as mental cruelty.
  3. Conversion: If one of the spouses converts to another religion, it forms a valid ground for contested divorce.
  4. Desertion: If any of the spouses has deserted the other for a period of a minimum of two years, the victim can file for the divorce.
  5. Mental disorder: If the spouse contesting for the divorce can prove insanity or mental disorder on the part of the other party, can form a ground for divorce. The case of B.N. Panduranga Shet vs. S.N. Vijayalaxmi, AIR 2003 is a testimony to this ground.
  6. Leprosy: The virulent and incurable form of leprosy of the partner can form a valid ground for divorce.
  7. Venereal diseases: A serious and sexually transmittable disease like aids which is categorized as venereal disease forms a ground for divorce without mutual consent.
  8. Renunciation: If a partner is embracing a religious order by renouncing all the worldly affairs, the other partner can file for divorce.
  9. Missing/Has not been heard from: If a partner has been absent from marriage for at least seven years, has not been heard from and there is no evidence of their being alive, the other partner can file for divorce.
  10. No resumption of cohabitation: After filing for divorce when the court orders for the couples to continue living jointly if the couple fails to cohabitate, it becomes a ground for divorce.
  Basis any of the above grounds, a partner can file for divorce without mutual consent in a family court with the help of a competent lawyer.
  Section 13B, however, deals with divorces with mutual consent which, after competition of the compulsory reconciliation period of six months, take about six to seven months.
  Section 13 (2) Of The Hindu Marriage Act
  A wife has rights or specific grounds on the basis of which she can file for divorce without mutual consent as laid down by the Section 13 (2) of the Hindu Marriage Act.
  1. If a husband is marrying another woman while the first wife is alive at the time of the second marriage and the second marriage is celebrated in the same fashion as that of the first marriage, which makes the second marriage void. The wife, in this case, can apply for divorce. This offense is also punishable under Section 494 of the Indian Penal Code.
  2. If the husband is proven to be guilty of rape, sodomy or bestiality which means savagely cruel behaviour towards the wife, the wife can seek a divorce without mutual consent.
  3. Section 5 of the Hindu Marriage Act also states that a wife can seek a divorce without mutual consent if the marriage was solemnised before her attaining the age of 15 which she abandoned before attaining the age of 18.                                                                                                                          Supreme Court sets alimony benchmark: 25% of ex-husband’s net salary

The Supreme Court has set a benchmark   for maintenance to be paid by a husband to his estranged wife, stating that 25% of his net salary might constitute a “just and proper” amount as alimony.




A bench of Justices R Banumathi and M M Santanagoudar made the observation while directing a resident of West Bengal’s Hoogly, earning Rs 95,527 a month, to set aside Rs 20,000 as maintenance for his former wife and their son, turning down the man’s plea that the amount was excessive. The court said the amount of maintenance or permanent alimony must be sufficient to ensure that a woman lived with dignity after separating from her husband.                                                              
Maintenance u/Section 125 of CrPC- Wife can Maintain Petition at any Place she is Residing

To file maintenance case you need to submit marriage certificate and photos of your marriage as proofs, these are essential requirements to file a case under section 125 Crpc. you can file case in the family court or judicial magistrate were you reside.

you can file a maintenance case either under section125cr.p.c or under domestic violence act. 

If you have salary slip of the spouse, it is beneficial(though not mandatory)

To file a maintenance case, you should have the following
a) Marriage certificate

b) Residential address of both the spouse

c) Office/place of work of the spouse

d) Average annual salary/ income of the spouse

e) If you have IT returns of spouse it is all the more beneficial(but not mandatory)                                                                                                                                                                               

Property Settlements

According to the Indian Divorce Act, if a person is married – irrespective of the fact that a divorce petition has been filed, that person has the right to occupy the property. In case that person is looking after children, the case is much stronger, while the property may be granted to one or the other spouse in the divorce settlement.  Both wife and husband have the right to remain on the property until the decree from the court.                                 

Factors that influence the amount of alimony

The alimony amount depends upon the length of marriage in a contested divorce, Divorce after a decade of marriage entitles the spouse to life-long alimony. The other important factors that need to be considered are given here:

Age of the person who is entitled to receive the alimony
The economic condition or the earnings potential of the person who is entitled to pay alimony
The health of spouse, the failing health or a medical condition of one of the spouses who is going to receive the alimony may act in favour of him or her. They can claim larger alimony by their failing health
The spouse who retains custody of a child would be entitled to either pay lesser alimony or be entitled to a greater amount while the child is a minor                                                       

Computing amount of alimony

The alimony claim of either spouse (though, in the vast majority of cases, it is the wife) depends on whether the husband has sufficient means. While deciding that the alimony is to be paid, the courts will take into account the earning potential of the husband, his ability to regenerate his fortune (the property is given to the wife) and his liabilities.     

Separated Wife

In case of a judicial separation under Indian Divorce Act, the wife will whilst so separated, be considered as an unmarried woman for contract, and wrongs and injuries, and suing and being sued in any civil proceedings; and her husband will not be liable in respect of any contract, act or costs entered or incurred by her during the separation.

The property held by the separated wife can be disposed of by her in all respects as an unmarried woman               

The separated wife will be considered as unmarried concerning the property of every description which she acquires

In every case of a Judicial separation under this Indian Divorce Act, the wife will be considered as unmarried from the date of the decree, and while the separation continues

Judicial Separation

Judicial Separation is the legal separation between the husband and the wife, granted by the court on a petition from either the husband or the wife or both. In judicial separation, the marital tie between the wife and husband continues to exist, and neither of them enjoys the freedom to be re-married.

The husband or wife can obtain a decree of judicial separation; on the ground of adultery or cruelty or desertion without reasonable excuse for two years, or more and such decree will have the effect of divorce under the Indian Divorce Act.

Application for Judicial separation

• The petition for judicial separation can be applied on the ground of adultery or cruelty or desertion without reasonable excuse for two years or more.

• Either husband or wife can make application for judicial separation on any one of the grounds as stated above by petition to the District Court or the High Court; and the court, on being satisfied with the truth of the statements made in such petition will grant judicial decree separation accordingly.                                                   

Dismissal of petition

The court will dismiss the petition for any of the following cases:

In case of evidence for any petition is not satisfied by the court or the petitioner’s case has not been proved.

If the court is not satisfied that the alleged adultery has been committed,   find that the petitioner has, during the marriage, been accessory to,  or conniving at, the going through of the said form of marriage, or the adultery of the other party to the marriage, or has condoned the adultery complained of,

If the petition is prosecuted in collusion with either of the respondents and any of the said cases, the court will dismiss the petition.

When the District Court dismisses a petition under this act, the petitioner can present a similar petition to the High Court.

Decree for Dissolving the Marriage

In case the court is satisfied, and the evidence of a case of the petitioner has been proved, the court will pronounce a decree declaring such marriage to be dissolved. According to this act, the Court will not be bound to pronounce such decree for the following cases:
If it finds that the petitioner has been guilty of adultery
If the petitioner has been guilty of unreasonable delay in presenting or prosecuting such petition,
In case of cruelty towards the other party to the marriage
In case of having deserted or willfully separated himself or herself from the other party before the adultery complained and without reasonable excuse,
In case of such willful neglect or misconduct towards the other party as has conducted to the adultery

Petition for Decree of Nullity


Any husband or wife can present a petition to the District Court or the High Court, praying that his or her marriage may be declared as null and void. Decree of Nullity will be made on any of the following
The respondent was essential at the time of the marriage and at the time of the institution of the suit
The couples are within the prohibited degrees of consanguinity or affinity
In case of either party was a lunatic or idiot at the time of the marriage
In case the former husband or wife of either party was living at the time of the solemnization, and the marriage with such former husband or wife was then in force.
Nothing in this section will affect the jurisdiction of the High Court to make decrees of nullity of marriage on the ground that the consent of either party was obtained by force or fraud.                                                                

Petition by Husband

Any husband can present a petition to the District Court or the High Court, praying that his marriage needs to be dissolved on the ground that his wife has been guilty of adultery since the solemnization of marriage.

Petition by Wife

Any wife can present a petition to the District Court or the High Court for dissolution of marriage. The wife can file such petition under any of the following circumstance:

If her husband has exchanged his profession for the profession of some other religion

If the husband went through a form of marriage with another woman

If her husband has been guilty of incestuous adultery since the solemnization of marriage

In case of bigamy with adultery

In case of marriage with another woman with adultery

In case of rape, sodomy or bestiality

In case of adultery coupled with such cruelty as without adultery would have entitled her to a divorce 

In the case of adultery coupled with desertion, without reasonable excuse, for two years or more