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The short answer
If both spouses agree and have lived apart for at least a year, they can file a joint petition for divorce by mutual consent under Section 13B of the Hindu Marriage Act; the decree follows a second motion after six months, which the court may waive. Otherwise, one spouse must prove a ground such as cruelty or desertion. Cases are heard by the Family Court, and maintenance can be claimed under the HMA and Section 144 BNSS.
Which law applies
Divorce in India depends on the personal law under which the marriage took place.
- Hindus, Buddhists, Jains and Sikhs: the Hindu Marriage Act, 1955 (HMA). Most of this guide describes it.
- Marriages under the Special Marriage Act, 1954 (including many inter-faith marriages): Sections 27 and 28 of that Act.
- Christians: the Indian Divorce Act, 1869.
- Muslims: Muslim personal law, with the Dissolution of Muslim Marriages Act, 1939 for divorce sought by the wife through court.
- Parsis: the Parsi Marriage and Divorce Act, 1936.
Divorce by mutual consent (Section 13B HMA)
Where both spouses agree, they can file a joint petition. The requirements are:
- Living separately for at least one year before filing. "Living separately" can include living under the same roof but not as husband and wife.
- Agreement that they have not been able to live together and that the marriage should be dissolved.
- First motion: the joint petition is filed and both spouses' statements are recorded.
- Second motion: after a period of six months, and within 18 months of the first motion, both appear again and confirm consent. The court then passes the decree.
Either spouse can withdraw consent before the decree. The petition usually sets out the agreed terms on alimony, return of articles, custody and visitation of children, and the withdrawal of other cases between the parties.
Waiver of the six-month period
In Amardeep Singh v. Harveen Kaur (2017), the Supreme Court held that the six-month period is directory, not mandatory. The court hearing the case may waive it if:
- the statutory periods of one year's separation and six months after the first motion together have already been covered by separation before the first motion (that is, the parties have been apart for at least 18 months);
- attempts at mediation or conciliation have failed;
- the parties have genuinely settled all their differences, including alimony and child custody; and
- waiting would only prolong their difficulty.
An application for waiver can be made a week after the first motion. In Shilpa Sailesh v. Varun Sreenivasan (2023), a Constitution Bench held that the Supreme Court itself can, under Article 142, dissolve a marriage that has irretrievably broken down; that power belongs to the Supreme Court only, and family courts still apply the grounds in the Act.
Contested divorce: the grounds
Where one spouse does not agree, the other must prove a ground under Section 13(1) HMA, which include that the other spouse:
- had voluntary sexual intercourse with another person after the marriage;
- treated the petitioner with cruelty, physical or mental;
- deserted the petitioner for a continuous period of at least two years before the petition;
- ceased to be a Hindu by converting to another religion;
- has been incurably of unsound mind, or suffering from a mental disorder of such a kind that the petitioner cannot reasonably be expected to live with them;
- has been suffering from venereal disease in a communicable form;
- has renounced the world by entering a religious order; or
- has not been heard of as being alive for seven years or more.
Either spouse can also seek divorce where cohabitation has not resumed for one year or more after a decree of judicial separation, or restitution of conjugal rights has not taken place for one year or more after such a decree (Section 13(1A)). A wife has some additional grounds under Section 13(2). Leprosy was removed as a ground by the Personal Laws (Amendment) Act, 2019.
Generally, no divorce petition can be filed within one year of the marriage, unless the court permits it on the ground of exceptional hardship or depravity (Section 14).
Where to file in Odisha
Under Section 19 HMA, the petition can be filed in the court within whose local limits the marriage was solemnised, the respondent resides, the parties last resided together, or, where the wife is the petitioner, where she resides on the date of filing. Where a Family Court has been set up under the Family Courts Act, 1984, it has jurisdiction for that area. Family Courts function in Bhubaneswar, Cuttack and many other district headquarters in Odisha; elsewhere, the District Judge's court or a court designated for the purpose hears matrimonial cases. See courts for addresses.
Family Courts are required to attempt settlement first, and matters are commonly referred to counselling or to the mediation centre attached to the court. Proceedings are generally held in private.
Maintenance
Several provisions can apply, and amounts received under one are taken into account under another.
- Section 144 of the BNSS, 2023 (which replaced Section 125 CrPC from 1 July 2024): a wife, children and parents who are unable to maintain themselves can claim monthly maintenance from a person with sufficient means who neglects or refuses to maintain them. Interim maintenance can be ordered while the application is pending. The Supreme Court held in Mohd. Abdul Samad v. State of Telangana (2024) that a divorced Muslim woman can also claim under this provision.
- Section 24 HMA: maintenance and litigation expenses for either spouse while the case is pending.
- Section 25 HMA: permanent alimony at or after the decree, for either spouse.
- Hindu Adoptions and Maintenance Act, 1956 and the Protection of Women from Domestic Violence Act, 2005 also provide for maintenance and other relief.
In Rajnesh v. Neha (2020), the Supreme Court required both parties in maintenance cases to file affidavits disclosing their assets and liabilities, and directed that maintenance be payable from the date of the application. The Orissa High Court has also directed family courts in Odisha to dispose of maintenance cases quickly, in a small number of sittings.
How to file a maintenance case on its own, including interim maintenance, is explained in maintenance cases in Odisha; protection orders and the right to residence are covered in the Domestic Violence Act in Odisha.
Children
Custody and visitation are decided on the welfare of the child, which is the paramount consideration. Parents may agree on arrangements in a mutual consent petition, but the court can examine whether they are in the child's interest. Child support is separate from the spouse's maintenance.
Guardianship petitions and visiting arrangements are explained in child custody in Odisha.
Other personal laws, briefly
- Special Marriage Act, 1954: mutual consent divorce under Section 28 after one year of separation, with a similar six-month period; contested grounds under Section 27.
- Indian Divorce Act, 1869: contested divorce under Section 10, and mutual consent under Section 10A after at least two years of living separately.
- Muslim law: divorce can be by the husband (talaq), by the wife where delegated or by khula, or by mutual agreement (mubarat). Instant triple talaq is void and an offence under the Muslim Women (Protection of Rights on Marriage) Act, 2019. A wife can seek divorce through court on the grounds in the 1939 Act.
Documents usually needed
- Proof of marriage: marriage certificate, wedding invitation or photographs
- Address and identity proof of both spouses
- Proof of the period of separation, for mutual consent
- Income and asset details, for maintenance and alimony
- Any settlement terms in writing, and details of other pending cases between the parties
Women are eligible for free legal services under the Legal Services Authorities Act, 1987, regardless of income; see free legal aid in Odisha. Where a criminal case has been registered in connection with the marriage, see what happens after an FIR. Matrimonial work is described under family and succession.
Odia terms used in this guide
| Odia | Transliteration | Meaning |
|---|---|---|
| ଛାଡପତ୍ର | chhadapatra | divorce |
| ଖୋରପୋଷ | khorapos | maintenance |
Frequently asked questions
How long does mutual consent divorce take in Odisha?
The law requires a six-month period between the first and second motion, so it usually takes at least six to seven months from filing. The court may waive the six months in suitable cases under Amardeep Singh v. Harveen Kaur (2017).
Can the six-month waiting period for mutual divorce be waived?
Yes, at the court's discretion, where the parties have already been separated for at least 18 months, mediation has failed, and they have settled all issues including alimony and custody.
Where do I file for divorce in Bhubaneswar or Cuttack?
In the Family Court for the area where the marriage took place, where the other spouse lives, where you last lived together, or, if the wife is filing, where she lives.
Can I file for divorce within one year of marriage?
Generally not under the Hindu Marriage Act. Section 14 allows an earlier petition only with the court's permission on grounds of exceptional hardship or depravity. A mutual consent petition also needs one year of separation.
Which section now replaces Section 125 CrPC for maintenance?
Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023, in force since 1 July 2024. A wife, children and parents unable to maintain themselves can claim monthly maintenance under it.
What are the grounds for contested divorce?
Under Section 13(1) HMA they include adultery, cruelty, desertion for two years, conversion, serious mental disorder, communicable venereal disease, renunciation of the world, and not being heard of for seven years.
Official sources
- Hindu Marriage Act, 1955 and Family Courts Act, 1984 (India Code)
- Bharatiya Nagarik Suraksha Sanhita, 2023 (India Code)
- Supreme Court of India: Amardeep Singh (2017), Rajnesh v. Neha (2020)
- Orissa High Court, Cuttack (official website)
- Odisha State Legal Services Authority
General information, not legal advice. Every matter turns on its own facts and documents, and the law and official procedures change. Check the current position with the concerned office, or take advice on your own facts, before acting.