When is a divorce “contested”?
Where husband and wife cannot agree to end the marriage, or cannot agree on the terms, one of them can file a petition for divorce on their own. The spouse who files (the petitioner) must plead and then prove one of the grounds set out in the statute. The other spouse (the respondent) can oppose the petition, and the court decides after hearing evidence from both sides.
For Hindus, Buddhists, Jains and Sikhs, the grounds are in Section 13 of the Hindu Marriage Act, 1955. For marriages solemnised or registered under the Special Marriage Act, 1954, the grounds are in Section 27 of that Act, discussed on our Special Marriage Act divorce page.
Grounds for divorce under Section 13(1)
Either the husband or the wife may seek divorce on the ground that, after the marriage, the other spouse:
- Adultery: has had voluntary sexual intercourse with a person other than their spouse. A single act is sufficient in law, although it must be proved, usually through circumstantial evidence.
- Cruelty: has treated the petitioner with cruelty. Cruelty may be physical or mental. Courts have recognised, for example, sustained humiliation, false and defamatory allegations, persistent refusal of marital obligations without reason, and filing of false complaints as capable of amounting to mental cruelty. Ordinary wear and tear of married life is not enough; the conduct must be of a kind that the petitioner cannot reasonably be expected to live with the other spouse.
- Desertion: has deserted the petitioner for a continuous period of not less than two years immediately before the petition. Desertion means leaving without reasonable cause and without consent, with the intention of ending cohabitation permanently.
- Conversion: has ceased to be a Hindu by converting to another religion.
- Unsoundness of mind or mental disorder: has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with them. Courts require clear medical evidence here.
- Venereal disease: has been suffering from venereal disease in a communicable form.
- Renunciation: has renounced the world by entering a religious order.
- Presumption of death: has not been heard of as being alive for seven years or more by those who would naturally have heard of them.
Leprosy was earlier a ground but was removed by the Personal Laws (Amendment) Act, 2019.
Grounds after a decree of judicial separation or restitution
Under Section 13(1A), either spouse may seek divorce if there has been no resumption of cohabitation for one year or more after a decree of judicial separation, or no restitution of conjugal rights for one year or more after a decree for restitution of conjugal rights.
Additional grounds available to the wife
Section 13(2) gives a wife four further grounds:
- the husband had another wife living at the time of the marriage, where the marriage took place before the Act;
- the husband has, since the marriage, been guilty of rape, sodomy or bestiality;
- an order for maintenance has been passed in her favour (under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, or Section 125 of the old Code of Criminal Procedure, now Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023) and cohabitation has not resumed for one year or more since the order; and
- her marriage was solemnised before she turned fifteen and she repudiated it after turning fifteen but before turning eighteen.
How a contested divorce proceeds
- Legal notice (optional). Some petitioners send a legal notice first. It is not a legal requirement, and whether it helps depends on the facts.
- Filing the petition. The petition sets out the facts, the ground relied on, and the reliefs sought, such as divorce, custody, alimony and return of stridhan. It is filed in a Family Court that has jurisdiction under Section 19 of the Act: where the marriage was solemnised, where the respondent lives, where the couple last lived together, or where the wife lives if she is the petitioner.
- Summons and reply. The court issues summons. The respondent files a written statement and may raise a counter-claim.
- Reconciliation and mediation. Section 23(2) of the Act and the Family Courts Act, 1984 require the court to make efforts at reconciliation. Cases are commonly referred to the court’s mediation centre. Many disputes settle at this stage and convert into a mutual consent divorce.
- Interim applications. While the case is pending, either side may seek maintenance and litigation expenses under Section 24, and orders on interim custody and visitation under Section 26.
- Framing of issues. If mediation fails, the court frames the points in dispute that must be decided.
- Evidence. Each side files evidence by affidavit, followed by cross-examination by the other side. Other witnesses and documents are then brought on record.
- Final arguments and judgment. After evidence closes, both sides argue the case and the court delivers its judgment. If divorce is granted, a decree is drawn up.
- Appeal. A party who is dissatisfied can appeal to the High Court within the limitation period. Under Section 15, a divorced person may remarry only after the time for appeal has expired without an appeal, or after any appeal has been dismissed.
Evidence: what usually matters
Family Courts decide contested divorces on the preponderance of probabilities, but the burden of proving the ground is on the petitioner. Evidence that often matters includes:
- Documents and records: medical records, police complaints and their outcomes, earlier court orders, bank statements, rental agreements and travel records.
- Electronic evidence: messages, emails, call records, photographs and social media posts. Under the Bharatiya Sakshya Adhiniyam, 2023, electronic records generally need to be accompanied by the certificate required by Section 63 of that Act. Section 14 of the Family Courts Act also allows a Family Court to receive material that helps it deal effectively with the dispute, even if it would not otherwise be admissible.
- Witnesses: family members, neighbours, doctors or others who have direct knowledge of relevant events.
- Consistency: courts look closely at whether the account given in the petition, in any police complaint and in oral evidence is consistent. Exaggerated or unsupported allegations can damage a case.
Collect evidence lawfully. Accessing a spouse’s phone, email or accounts without permission can raise separate legal issues. It is sensible to take advice before relying on material obtained in that way.
Timeline: a realistic view
Contested divorce is the slower route. The time taken depends on how quickly summons are served, whether mediation is attempted, the number of interim applications, the number of witnesses, and the court’s calendar. It is not unusual for a contested case to take several years at the trial stage. Because of this, many people explore settlement at the mediation stage even after a contested petition has been filed.
Related proceedings you may come across
A contested divorce often runs alongside other cases. Commonly seen proceedings include:
- a petition for maintenance under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (earlier Section 125 CrPC), explained on our alimony and maintenance page;
- proceedings under the Protection of Women from Domestic Violence Act, 2005 for protection, residence and monetary relief;
- criminal complaints under Sections 85 and 86 of the Bharatiya Nyaya Sanhita, 2023 (earlier Section 498A IPC) or under the Dowry Prohibition Act, 1961;
- guardianship or custody petitions, explained on our child custody page; and
- transfer petitions, where one spouse asks a higher court to move a case to a different court for convenience.
Each of these has its own rules and timelines. If you or your spouse live outside India, our page on NRI divorce explains the additional issues that arise. For short answers to frequently asked questions, see our divorce FAQ.
Last reviewed: September 2026. This page is general information about the law and is not legal advice. Laws, rules and court practice change; please take advice on your specific facts.