Procedure for Filing for Divorce

The procedure for seeking a divorce by mutual consent in India, is initiated by filing of a petition, supported by affidavits and annexure's sworn by both the spouses mutually/ jointly, in the district court having jurisdiction over the matter. However, such a divorce may be filed by the couple only after they have lived apart for at least a year. A petition supported with affidavits for divorce should be presented by the both the spouses, this is known as the First Motion Petition for Mutual Consent Divorce, this should contain a joint statement by both the parties to the Petition that due to their irreconcilable differences, they are no longer stay together and should be granted a divorce by the court. After six months thereafter, the Second Motion Petition for Mutual Consent Divorce ought to be filed by the couple and when they are required to reappear in the court to confirm to the earlier motion. A gap of six months commonly referred to as the cooling off period, is given between the two motions, so as to offer the estranged couple an opportunity and adequate time to reconsider their decision of dissolving their marriage. However after the expiry of such period, if the second motion is filed by the couple and the judge is satisfied that all the necessary grounds and requirements for the divorce have been met, a mutual divorce decree may be granted by the Court. If either party withdraws the divorce petition within 18 months of the filing of the First Motion Petition, the court will initiate an enquiry and if such party continues to refuse his/ her consent to the divorce petition, the court shall no longer have the right to grant a divorce decree on such petition. But if the divorce petition is not withdrawn within the stipulated 18 months, the court will pass a divorce decree on the basis of mutual consent between both parties. Nevertheless, not all estranged couples mutually agree on the desirability, grounds or the conditions for seeking such divorce mutually. In such cases, one party files for divorce in the court, but the other contests it. Typically, some of the grounds on which either spouse may file for a divorce in India are:

Infliction of physical and/or mental cruelty/ torture;
Adultery or any other sexual relationship outside marriage;
Willful desertion or abandonment for a continuous period of two years in India;
Insanity or suffering from incurable disease; and
Sexual impotency or inability to perform sexual intercourse.