Contested Divorce Under the Hindu Marriage Act: Grounds, Procedure and Time

When a contested divorce is needed

Where both spouses agree, divorce by mutual consent under Section 13B of the Hindu Marriage Act, 1955 is usually quicker. Where one spouse does not agree, the other must file a petition under Section 13 on one of the grounds the Act recognises and prove it with evidence.

Grounds available to either spouse

• Cruelty, physical or mental
• Desertion for a continuous period of at least two years before the petition
• Conversion to another religion
• Incurable unsoundness of mind, or a mental disorder of such a kind that the petitioner cannot reasonably be expected to live with the respondent
• Renunciation of the world by entering a religious order
• Not being heard of as alive for seven years or more
• No resumption of cohabitation for one year or more after a decree of judicial separation, or no restitution of conjugal rights for one year or more after such a decree

Additional grounds for the wife

Section 13(2) gives a wife further grounds, including that the husband was found guilty of rape or certain sexual offences, that cohabitation did not resume for a year after an order of maintenance in her favour, and that her marriage was solemnised before she turned fifteen and she repudiated it after that age but before eighteen.

Where the petition is filed

Under Section 19, the petition may be filed in the Family Court where the marriage was solemnised, where the respondent resides, where the parties last resided together, or where the wife resides if she is the petitioner. In East Champaran this is the Family Court at Motihari.

How the case moves

After notice, the respondent files a reply. The Family Court must first attempt reconciliation, and the matter is usually referred to mediation. If that fails, issues are framed and evidence is recorded. Interim maintenance under Section 24 and custody of children are decided alongside. A contested case typically takes considerably longer than a mutual-consent divorce, depending on the court's docket and the conduct of the parties.

Irretrievable breakdown

Irretrievable breakdown of marriage is not a ground under the Act. In Shilpa Sailesh v. Varun Sreenivasan (2023), a Constitution Bench held that the Supreme Court may dissolve a marriage on that basis under Article 142 of the Constitution, but that power belongs to the Supreme Court alone.