You can file for a divorce if your spouse has cheated on you, i.e. when they have had voluntary sexual intercourse with another person. This is also referred to as adultery.
To get a divorce, you will have to prove that voluntary sexual intercourse took place between your spouse and another person.
Till recently, cheating was a crime. It is no longer a crime. However, you can still file for divorce on the grounds that your spouse has cheated on you.
Under Muslim law, there are provisions for divorce due to non-payment of maintenance by the husband.
If your husband has failed to provide maintenance to you for a period of 2 years, then you can go to Court to ask for a divorce.
If your spouse has left you then you can file for a divorce. This is known as desertion.
Desertion can happen if your spouse has left you with immediate effect with an intention to never come back to stay with you as your spouse, without you agreeing to this arrangement.
This will only be understood by the Courts on a case by case basis. It is important to note that if your spouse has temporarily or in the heat of the moment left you, without actually intending to abandon you, this will not amount to desertion.
For example, if you had a fight with your husband and he leaves the house in anger then it does not mean that he has deserted you.
However, it is important that you have not created such a circumstance that any reasonable person would find so difficult to bear with that would have had to desert you. If you have created such a circumstance then the courts may not consider your case for desertion.
Apart from a single act of leaving you, desertion can happen over a period of time through a course of conduct or through repeated behavioural patterns.
If your spouse has slowly withdrawn from you and your social circles (for example: stopped all interaction with you and your family though he/she may live with you) and has stopped behaving as any spouse does in a marriage (for example: refusing to financially contribute to a household since and contribute in any other way to the household) it can be understood as desertion. In such a case the spouse doesn’t have to physically leave you. Depending on the circumstances of each case, the Court can consider the desertion to begin when such behaviour started.
The Court will look at all the facts and circumstances to understand each specific case to decide on granting a divorce.
In order to claim desertion as a reason for divorce:
For example, Karan left his wife, Vijji, in January 2016, but changed his mind and came back to be with his wife in July 2017. Vijji cannot go to Court to file for a divorce for this reason as the two year period was not continuous.
Under Muslim law, there are provisions for divorce due to incarceration of husband. If your husband has been convicted of a crime and is sent to jail for 7 years or more, then you can go to Court to file for a divorce.
Such decree for divorce may be granted only if the husband’s sentence has become final.
If you are in a Hindu marriage, the mental illness of your spouse can be a ground for divorce.
You can file for divorce if:
It is important to note that a few strong instances indicating a short temper and somewhat erratic behaviour on the part of your spouse may not amount to or be indicative of a mental disorder.
Divorce can only happen if your spouse’s mental disorder would lead to the behaviour of such a kind that you cannot reasonably be expected to live with him or her.
You can even ask the Court to direct your spouse to undergo a medical examination to ascertain that he or she is suffering from an unsound mind to prove your case.
Under Muslim law, you can file for divorce if your husband does not perform marital obligations. If your husband, without any reason, decides not to perform his marital obligations for more than 3 years then you can go to Court to file for divorce.
Marital obligations include:
You can file for divorce if your spouse has undergone conversion to another religion and has ceased to be a Hindu.
It is very important to note that since your spouse has converted to another religion it does not automatically end your marriage to them. You must still file for divorce.
Even if your spouse has converted to another religion the divorce proceedings will happen under the Hindu law and not the religion your spouse converted to. This is because your marriage to your spouse happened under Hindu law.
Till the divorce has been finalized by the Court your marriage will continue to exist with your spouse. Your spouse cannot marry before this and such marriage will not be a valid marriage in law.
If your spouse marries again without getting a divorce from you then you can charge them with the offence of bigamy which is punishable with up to 7 years jail time and a fine.
Under Muslim law, you can file for divorce if you find out that your husband is impotent or even if you knew throughout your marriage that your husband was impotent. In this situation your husband can do either of the following:
The proof that your divorce has happened is the Court’s final order known as ‘decree of divorce’. This is in the form of an order, which is a document that enforces your divorce.
A decree of divorce is final when either of the two happens:
Please consult a lawyer for more information on this.
There are provisions on cruel behavior under the Muslim marriage law. Cruelty is any conduct or behavior which causes harassment in the mind of the spouse. Under the Muslim law, cruelty is specifically understood as when your husband:
In all family law cases, Courts encourage an attempt for reconciliation between the spouses.
After reconciliation happens, either:
There are three kinds of reconciliation methods in India:
Mediation
Conciliation
Counsellor in Family Courts
The Iddat period after divorce in a Muslim marriage is a period of time where the wife is not allowed to marry anyone else or have sexual intercourse with anyone. Only women have to follow the Iddat period under the Muslim Law.
If you have been divorced by your husband then the Iddat period is:
Your husband can always change his mind during the iddat period and take back his talaq, after which, you will be a married couple again.
If you want to remarry, you have to wait for 90 days from the date of the Court’s final order, so that your spouse has time to ‘appeal’ against the Court’s decision.
Under the law, you can remarry right after getting the decree of divorce when:
Please consult a lawyer for this.
During a Muslim marriage ceremony, a sum of money or property will be decided to be paid to you by your husband, known as mehr or dower. Traditionally mehr is understood as an amount reserved for the wife for when she needs it the most, that is either after divorce or death of the husband.
Even if no specific amount is fixed at the time of the marriage, legally you have a right to mehr. It can either be paid in full at the time of marriage or in parts, i.e. half at the time of marriage and the rest upon divorce or death of your husband.
Once your divorce is final, and your iddat period has been completed, if you haven’t received your mehr amount from your husband then your husband has to give it to you.
You can get a specific amount of money based on a Court order from your spouse. This can happen only if you do not have any sufficient means of income to sustain yourself or your children. This amount is called maintenance or alimony.
The Hindu divorce law on maintenance is gender-neutral. This means that an application for temporary or permanent maintenance can be filed either by the husband or wife.
During the course of the divorce proceedings, if you do not have independent income to support yourself and/or your children or to pay the necessary legal costs of the case, you can apply to the Court to direct your spouse to pay you a sum of money as maintenance. The Court will set a reasonable amount, which has to be paid monthly, as temporary maintenance after considering the income and paying capacity of the other spouse.
Along with your divorce case, you can make an application to the Court for permanent maintenance to be paid by your spouse either monthly, periodically or in lump sum.
The Court can order such amount to be paid as maintenance keeping in mind the lifestyle that you enjoyed in your matrimonial home and considering the income and paying capacity of your spouse.
This amount can even be modified at a later date if either of your circumstances have changed. For instance, an increase in educational expenses for children, an increase in salary or standard of living of the paying spouse, etc. could result in an increase in the maintenance amount.
If you are getting maintenance monthly or periodically, then you will get it only till you remarry. It can even be revoked if you do not remain chaste (in case of a wife) or have sexual relations with another woman (in case of a husband).
It is important to note that permanent alimony cannot be granted to you if the main petition requesting a divorce, judicial separation, etc. under Hindu law has been dismissed or withdrawn.
Under Muslim Marriage law, maintenance is paid by your husband to you and your children after the divorce has taken place. You do not have to pay maintenance to your husband as under Muslim law, only a man has to pay and take care of the woman after the divorce.
You can go to the Court to ask your husband to pay you maintenance. Courts determine the sum of maintenance based on the financial capacities of the husband.
Maintenance for Wife
In Muslim law, you have a right to get maintenance from your husband till:
You cannot get maintenance from your husband if he has died. However, you have options of getting maintenance from:
Along with your maintenance, you are entitled to get the mehr amount mentioned in your nikahnama. This mehr is given either on divorce or on death of your husband.
Apart from divorce, which has a certain finality to it, you and your spouse can even opt for a decree of judicial separation to better understand if you want a divorce.
Through this measure, the Court orders that you have been officially separated temporarily.
Judicial Separation does not have the same legal effect as divorce. This is because your marriage continues to exist. You cannot remarry legally during judicial separation.
You can apply for a decree of judicial separation for the same reasons as that of divorce. But it will not have the same effect as it does for a divorce. You will continue to be a married couple that lives separately.
After the order for judicial separation has been passed, you and your spouse can exercise one of the two following options:
Option I: Cancelling the Order of Judicial Separation You can approach the Court to cancel this order. You are able to reconcile with your spouse and get back together and live as a married couple after cancelling this order.
Option II: Get a Divorce After one year of receiving the order for judicial separation, if you and your spouse believe that there is no possibility of reconciliation you can file for divorce.
During this period you are entitled to alimony from your spouse. Please read this for more information. Further, the Courts will decide on the question of custody of children.
If your husband wants to remarry you after a divorce then also you have to observe a period of iddat, which is different from the iddat time period if your husband dies. In a situation where your husband wants to marry you again after divorcing you, then he has to wait till the following happens:
You can only file a divorce case if you have a reason recognized by Hindu law. These reasons can vary from ill-treatment by your spouse to your spouse suffering from a mental disorder.
In India, the law provides for specific reasons under which you can file for a divorce.
For Men
For Women
Iddat
If you are pregnant during this iddat period, then after your child has been born your iddat period will begin.
A decree of nullity is a judicial decree determining in effect that the marriage in question never existed. It is different from a divorce which acknowledges that there was a marriage and it is ending. The decree of nullity declares that the marriage is and has always been null and void as there are many conditions under which marriage in India can be considered as an invalid marriage. A party has to present a petition before Court against the other party, setting in detail the reason for the annulment.
These are the conditions for annulment of a marriage:
If these conditions are met, a marriage can be annulled.
Under Muslim personal laws, marriages in violation of rules are known as Batil marriages. Those marriages which are in violation of conditions of affinity, fosterage, etc. are examples of Batil marriages (for example, marrying your mother’s sister). Batil is another way of saying that your marriage is void. A marriage can be annulled if it is void and it means that the marriage is not legally binding.
In certain circumstances, your marriage may be considered as Fasid or irregular. The prohibitions are temporary or a result of accidental circumstances – it is generally possible to rectify irregular marriages (for example, a marriage with no witnesses).
To end a marriage through annulment, a petition must be presented to the District Court which has jurisdiction. The Court should have judicial authority over the area:
The petition should have all the facts and reliefs required and should only be submitted after it has been made certain that everything written in it is true. The Court has a duty to make sure that the proceedings go smoothly, and attempt to make sure that there is a chance of reconciliation between the parties. This means that the spouses have to try to resume their marital relationship. An appeal can also be filed after the Court passes a decree or order, and this will be enforced and has to be obeyed.
Family & Marriage
Money & Property
Crimes & Violence
Police & Courts
Labour & Employment
Health & Environment
Citizen Rights & Constitution
Government & Elections
Media & Intellectual Property
Videos
Guides
Sample Forms
Statewise Information
General
Children
Women
LGBTQI+
Employees
Persons with Disabilities
Scheduled Castes & Tribes
Senior Citizens
Informal Workers