Divorce in India is governed by the personal law that applies to the marriage, not by one general statute. That determines the grounds available, the procedure, and in some cases the forum. Before anything else can usefully be discussed, it has to be established which law applies.
For women: rights, maintenance, custody and stridhan explained, with a woman advocate in Malad. See Divorce for women in Mumbai.
| Marriage governed by | Principal statute |
|---|---|
| Hindu, Buddhist, Jain or Sikh | Hindu Marriage Act, 1955 |
| Muslim | Muslim personal law, with the Dissolution of Muslim Marriages Act, 1939 and the Muslim Women (Protection of Rights on Marriage) Act, 2019 |
| Christian | Indian Divorce Act, 1869 |
| Parsi | Parsi Marriage and Divorce Act, 1936 |
| Registered under the Special Marriage Act | Special Marriage Act, 1954 |
Mutual consent
Where both parties agree, divorce by mutual consent is the shortest and least damaging route. Broadly, the parties must have been living separately for the period the applicable statute requires, must not have been able to live together, and must have agreed to dissolve the marriage.
The procedure runs in two stages: a joint petition and a first motion, then a statutory waiting period, then a second motion at which the court satisfies itself that consent continues and is free. The waiting period exists so that consent is not given in the heat of a bad week, and in appropriate cases courts have power to shorten it.
What decides whether a mutual consent petition is quick or slow is rarely the court. It is whether the terms have actually been settled: maintenance or a one-time settlement, custody and access to children, return of articles including stridhan, and what happens to any jointly held property. A petition filed before those are agreed tends to become a contested matter in all but name.
Contested divorce
Where one party does not agree, a petition is filed on a ground available under the applicable law. Grounds commonly relied on include cruelty, desertion, adultery, conversion, unsoundness of mind and certain other circumstances, and their precise content differs between statutes. A contested petition involves pleadings, evidence and cross-examination, and it takes considerably longer than a consent petition.
Very often other proceedings run alongside — maintenance, an application under the Domestic Violence Act, custody, or a criminal complaint. These should be planned as one strategy rather than filed piecemeal, because what is said in one proceeding is read in the others.
Talaq, khula and the 2019 Act
For Muslim marriages the position is frequently misunderstood, and the misunderstanding runs in both directions.
Talaq-e-biddat — instant triple talaq — has been held void and is an offence under the Muslim Women (Protection of Rights on Marriage) Act, 2019. Pronouncing it does not dissolve the marriage. A woman whose husband has purported to divorce her that way remains married, and her rights to residence and maintenance continue.
Khula is dissolution at the wife’s instance, and a suit under the Dissolution of Muslim Marriages Act, 1939 allows a Muslim woman to obtain a decree on specified grounds including cruelty, failure to maintain, and the whereabouts of the husband being unknown for a prescribed period.
Women who come after an instant talaq usually believe the marriage is over and that nothing can be done. Neither is correct, and the first consultation is often spent establishing that.
Maintenance, custody and property
- Maintenance may be claimed under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 — which replaced Section 125 CrPC — under the applicable personal law, and as monetary relief under the DV Act. The routes overlap and amounts awarded in one are taken into account in another.
- Custody is decided on the welfare of the child, not on the wishes or the fault of the parents, and interim arrangements for custody and access are usually made early.
- Stridhan — what a woman received before, at and after marriage — remains hers, and its return can be sought separately from any question of maintenance.
Where matters are heard
Matrimonial proceedings from the Mumbai suburbs are ordinarily before the Family Court at Bandra, while maintenance and DV applications may lie before the Magistrate depending on the relief sought.
What to bring
- Marriage certificate, or the nikahnama, and photographs of the ceremony if registration is in question
- Identity and address proof for both parties, so far as available
- Details of children — ages, schooling, who they live with
- Whatever is known about the other party’s income and assets
- Anything already filed or received — notices, complaints, previous orders
- A list of articles and jewellery given at the time of marriage, if their return is in issue
A first consultation in a matrimonial matter is usually spent establishing what the realistic routes are, how long each takes, and what each involves by way of disclosure — not on filing anything. People frequently arrive believing there is only one option available to them, and there usually is not.
Common questions
How long does a mutual consent divorce take?
It runs in two stages — a joint petition and first motion, a statutory waiting period, then a second motion — and courts have power to shorten the waiting period in appropriate cases. What usually decides the timeline is not the court but whether maintenance, custody, stridhan and property have actually been settled before filing.
Is instant triple talaq valid?
No. Talaq-e-biddat has been held void and is an offence under the Muslim Women (Protection of Rights on Marriage) Act, 2019. Pronouncing it does not dissolve the marriage, and a woman in that position remains married with her rights to residence and maintenance intact.
How can a Muslim woman obtain a divorce?
By khula, or by a suit under the Dissolution of Muslim Marriages Act, 1939, which allows a decree on specified grounds including cruelty, failure to maintain, and the husband’s whereabouts being unknown for a prescribed period.
Which court hears divorce matters in the Mumbai suburbs?
Matrimonial proceedings are ordinarily before the Family Court at Bandra. Maintenance and Domestic Violence Act applications may lie before the Magistrate, depending on the relief sought.
Can I claim maintenance while the divorce is pending?
Yes. Interim maintenance is available, and maintenance may be claimed under Section 144 of the BNSS, under the applicable personal law, and as monetary relief under the Domestic Violence Act. These overlap, so they should be planned together rather than filed at random.
Who gets custody of the children?
Custody is decided on the welfare of the child, not on the fault or the wishes of the parents. Interim arrangements for custody and access are usually made early in the proceedings.
What is stridhan and can I get it back?
Stridhan is what a woman received before, at and after her marriage — jewellery, gifts, articles. It remains her property, and its return can be sought separately from any claim to maintenance.
See also: A wife’s rights in divorce: home, maintenance, children and stridhan.
See also: Marriage registration in Mumbai.
See also: Khula and divorce for Muslim women.
Discussing a matter
Consultations are at chambers at 704 Classic Building, Gate No. 8, Malwani MHADA, Malad (West), Mumbai 400095, by appointment. Telephone or send a message on WhatsApp to +91 99301 50560, or use the contact page.
This page describes procedure in general terms. It is not legal advice, and what applies in a particular matter depends on its own facts and on the law as it stands at the time.
Related guides
- A Husband’s Rights in Divorce in Mumbai
- NRI Husband Abroad: When Your Wife Misused Your Money or Property
- Husband Having an Affair? A Wife’s Legal Options
- Husband Married Again Without Divorce: Bigamy and the First Wife’s Rights
- Getting Back Your Stridhan and Jewellery
- Child Custody in Mumbai: How the Family Court Decides
- Mutual Consent Divorce: The Basic Process
- Maintenance Under Section 144 BNSS: Who May Claim and How
This page describes general procedure and is published for information only, in keeping with Rule 36 of the Bar Council of India Rules. It is not legal advice and does not solicit work. What applies to a particular matter depends on its own facts.