When a marriage is in trouble, people often face two crises at once: an emotional one and a legal one. Knowing the basics of your rights can reduce fear and help you make calmer decisions.
Which law applies?
In India, marriage and divorce are governed by personal laws. Hindus, Buddhists, Jains and Sikhs are covered by the Hindu Marriage Act, 1955; Muslims, Christians and Parsis have their own laws; and civil or inter-faith marriages registered under the Special Marriage Act, 1954 follow that Act. The right route depends on how and under which law you married.
Two routes to divorce
- Divorce by mutual consent. Both spouses agree. Under the Hindu Marriage Act (Section 13B), the couple must have lived separately for at least a year. There are two motions in court, usually six months apart, though courts can waive this waiting period in suitable cases.
- Contested divorce. One spouse asks the court for divorce on grounds set out in law, such as cruelty, desertion or certain other grounds. These cases take longer and need evidence.
Maintenance
A spouse who cannot maintain themselves, children and dependent parents can ask for maintenance. Interim maintenance can be ordered while a case is going on. Claims can be made under personal law, under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (which replaced Section 125 of the old Criminal Procedure Code), and under the Protection of Women from Domestic Violence Act, 2005.
Child custody
In every custody decision the court's guiding principle is the welfare of the child, above the wishes of either parent. Courts look at the child's age, emotional bonds, schooling, stability and, for older children, their own preference. Custody of a very young child is usually given to the mother, and the other parent is normally given visitation. Joint parenting arrangements are increasingly common.
Why mediation helps
Family courts are required to try to settle disputes, and many cases are referred to mediation. Mediation is confidential, quicker and less hostile than a trial, and it lets parents agree on arrangements that suit their children. Agreements reached in mediation can be recorded by the court.
The emotional side
Separation brings grief, anger and anxiety, for adults and children alike. Looking after your mental health is not a distraction from the legal process; it helps you make better decisions in it. Children cope best when parents keep conflict away from them and reassure them that the separation is not their fault.
If you are facing violence at home, help is available: call 181 (women's helpline) or 112.
This article is general information, not a substitute for individual psychological, medical or legal advice. To talk about your own situation, book a consultation or call +91 94618 23463. In an emergency, call 112.