Family and Matrimonial Law

Divorce: contested and by mutual consent

For Hindus, Buddhists, Jains and Sikhs, marriage and divorce are governed by the Hindu Marriage Act, 1955. A contested divorce under Section 13 must be founded on a statutory ground, including cruelty, desertion for two years or more, adultery, conversion, or mental disorder. A divorce by mutual consent under Section 13B requires that the parties have lived separately for at least one year and have freely agreed to dissolve the marriage.

Section 13B(2) prescribes a waiting period of six months (extendable to eighteen) between the first and second motions. The Supreme Court has held that this period is directory, not mandatory: in Amardeep Singh v. Harveen Kaur it ruled that a family court may waive the wait where there is no possibility of the parties resuming cohabitation and the issues of maintenance, custody and property are settled. The Supreme Court itself can go further and dissolve a marriage that has irretrievably broken down, exercising its power under Article 142 of the Constitution, as the Constitution Bench confirmed in Shilpa Sailesh v. Varun Sreenivasan.

Inter-faith and civil marriages are solemnised and dissolved under the Special Marriage Act, 1954, which requires a thirty-day public notice and provides for divorce on fault grounds and by mutual consent. Christians, Parsis and Muslims are governed by their own statutes and personal law. Choosing the right forum and the right ground at the outset avoids years of correction later.

Maintenance and alimony

A spouse who cannot maintain themselves can seek maintenance through several routes that often run in parallel: interim and permanent maintenance under Sections 24 and 25 of the Hindu Marriage Act, a wife's maintenance under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, monetary relief under the Protection of Women from Domestic Violence Act, and the secular, religion-neutral remedy under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (which replaced Section 125 of the Code of Criminal Procedure from 01.07.2024).

In Rajnesh v. Neha the Supreme Court laid down binding guidelines to bring order to these overlapping claims. Both parties must file a sworn Affidavit of Disclosure of Assets and Liabilities; maintenance is ordinarily payable from the date of the application, not the date of the order; and a court setting maintenance in one proceeding must account for what has been awarded in another, so the payer is not made to pay twice over for the same period.

The remedy under Section 144 BNSS is available regardless of religion. In Mohd. Abdul Samad v. State of Telangana (2024) the Supreme Court confirmed that a divorced Muslim woman may claim maintenance under this secular provision, which stands in addition to her rights under the Muslim Women (Protection of Rights on Divorce) Act, 1986, not in derogation of them.

Cruelty, Section 498A and dowry

Cruelty by a husband or his relatives is now an offence under Sections 85 and 86 of the Bharatiya Nyaya Sanhita, 2023, which carry forward the old Section 498A of the Indian Penal Code with substantially the same language and punishment (imprisonment up to three years and fine). Section 86 separately defines cruelty to include conduct likely to drive a woman to suicide or to grave injury, and harassment to coerce an unlawful demand for property. The offence is cognizable, non-bailable and non-compoundable. Giving or taking dowry, and demanding it, remain punishable under Sections 3 and 4 of the Dowry Prohibition Act, 1961.

These provisions protect genuine victims, and the courts have also built in safeguards against their misuse. In Arnesh Kumar v. State of Bihar the Supreme Court directed that there be no automatic arrest in offences punishable with under seven years' imprisonment; the police must first apply the checklist in Section 41 of the Code and ordinarily issue a notice of appearance under Section 41A before any arrest. Where a matrimonial criminal case is genuinely settled, the High Court may quash the proceedings in the exercise of its inherent jurisdiction. The firm acts for complainants and for those accused, and in both cases the work is the same: establish the facts on the record, early and accurately.

Domestic violence: protection under the PWDVA

The Protection of Women from Domestic Violence Act, 2005 is a civil law with real teeth. An aggrieved woman applies to the Magistrate under Section 12 and can obtain a protection order restraining further violence (Section 18), a residence order securing her right to remain in the shared household (Section 19), monetary relief for expenses and losses (Section 20), custody of children (Section 21) and compensation (Section 22). Breach of a protection order is itself a criminal offence under Section 31.

Because relief under this Act is quick and does not depend on first proving a criminal case to the hilt, it is often the most effective immediate remedy. The firm advises on securing interim protection and residence orders without delay, and on resisting applications that are not made in good faith.

Child custody and guardianship

In every custody dispute the governing principle is the same: the welfare of the child is the paramount consideration, and it overrides the otherwise legal claims of either parent. The Supreme Court has restated this in Yashita Sahu v. State of Rajasthan and Gaurav Nagpal v. Sumedha Nagpal. Custody and guardianship are decided under the Hindu Minority and Guardianship Act, 1956, the Guardians and Wards Act, 1890, and Section 26 of the Hindu Marriage Act in a pending matrimonial case.

Courts increasingly recognise that a child usually benefits from a continuing relationship with both parents. The firm's work in these matters is to present a clear, honest picture of the child's actual circumstances, schooling, care and stability, and to negotiate workable custody and visitation arrangements, litigating only what genuinely needs to be litigated.

The legal framework

The principal statutes and the provisions that most often decide these matters. Statute text can be read in the firm's Legal Library; always check the current version at the official source.

Key judgments

Grouped by issue. Each case is cited from the court's own record; open a heading to read it.

How we work on these matters

One advocate stays responsible for the matter from the first conference to the final order, so the client always knows who is handling their case and the strategy stays consistent.

Family matters are won or lost on the record. The firm builds the file early: income and asset documents, dates of cohabitation and separation, communications and medical or police records, so that an interim-maintenance or custody application is supported by evidence rather than assertion.

Advice is candid about what the law allows and what it does not. Where a settlement or mutual-consent divorce is in the client's interest, that is pursued; where the matter must be contested, it is argued on the facts. The firm acts for spouses on both sides of these disputes.

Frequently asked questions