Divorce in India is on the rise as the couple chooses for legal ways to dissolve the unhappy marriages. Did you know there are two main types of divorce in India which are mutual consent divorce and contested divorce?

Mutual Divorce

Divorce by mutual consent is when husband and wife mutually decide that they do not wish to stay together anymore and want to end their marriage peacefully. Rather than accusing one another or litigating in court, they both agree to part their ways and resolve all major issues such as child custody, property, alimony, or maintenance by consent.[1]

Mutual consent as a ground for divorce was introduced into Hindu marriage legislation in 1976. Before that, only the Special Marriage Act of 1954 provided for couples to be divorced on the basis of mutual consent. According to this Act, when the marriage failed and the spouses agreed, they could bring it to an end mutually. In 1976, the Marriage Laws (Amendment) Act introduced section 13B to the Hindu Marriage Act, formally allowing Hindu couples to divorce by mutual consent.

Some requirements that need to be met before filing a petition for divorce by mutual consent are:

1.    Living separately for a period of one year or more before presenting the petition.

2.    Mutually consent that they are unable to live together any longer.

3.    Mutually agreed to have the marriage end.[2]

The Hindu Marriage Act mandates a minimum waiting period of 6 months since the mutual consent divorce petition has been filed. This is provided so that the couple may try to settle by resolving their differences or live together again. If they do not reconsider within 6 to 18 months of filing petition, the court will hear both parties, verify the facts, and subsequently grant a divorce, effectively ending the marriage.[3]

Eg: Neha and Ritesh broke up after being together for ten years of marriage. They had a child. They discussed and settled that Neha would get custody of the child, while Ritesh would have visiting rights on the weekend. They also complied on the division of educational expenses. As both were agreed on the same terms, they applied for mutual consent divorce, and the court approved their agreement.

Case Study: Jayashree Ramesh Londhe v. Ramesh Bhikaji Londhe[4]

This case revolves around the inherent nature of mutual consent divorce petitions and the permissibility of unilateral withdrawal by one party. The petitioner, Jayashree, sought divorce from her husband, Ramesh, on multiple grounds, including cruelty. Later, both parties filed a joint petition for divorce by mutual consent under Section 13B of HMA. The husband later tried to withdraw the petition which led to legal issue on whether such withdrawal is permissible without the consent of the other party.

The Bombay High Court discussed the provisions of both the HMA and the Code of Civil Procedure, finally determining that unilateral withdrawal of a joint mutual consent divorce petition is not allowed. The court highlighted that mutual consent is fundamental to Section 13B petitions and allowing one party to withdraw weakens this concept. Consequently, the Bombay High Court set aside the trial court's dismissal and granted a decree for divorce by mutual consent, emphasizing that the initial mutual agreement was genuine and should be respected.

Contested Divorce

A contested divorce is a kind of divorce in which either spouse seeks divorce in the court without the consent of the other spouse. The other spouse may disagree with terms of divorce relating to alimony, property or child custody, which results into litigation in court. The spouse filing petition can seek divorce on any of the following grounds under Section 13 of Hindu Marriage Act 1955:[5]

·      Cruelty (Physical or Mental) [Section 13(1)(i)(ia)].

·      Adultery – when a spouse is having a physical relationship outside the marriage. [Section 13(1)(i)].

·      Desertion – either spouse leaves the other for minimum 2 years. [Section13(1)(i)(ib)].

·      Insanity or unsoundness of mind (Mental illness) [Section 13(1)(iii)].

·      Venereal disease – this can be in a communicable form. [Section 13(1)(iv)].

·      Conversion – changing one’s religion. [Section 13(1)(ii)].

This type of divorce is governed by different laws in different religions:

·      Hinduism – Hindu Marriage Act 1955

·      Islam – Dissolution of Muslim Marriages Act 1939

·      Christian – Indian Divorce Act 1869

·      Parsi – Parsi Marriage and Divorce Act 1936

·      Interfaith/inter-caste – Special Marriage Act 1954

Compared to mutual divorce, this process is more complex and time-taking as it involves court proceedings, evidence, and legal procedures.[6]

Irretrievable Breakdown of Marriage

Divorce cases on grounds of specific reasons are usually lengthy, stressful, and full of accusations, creating hatred among spouses. Most failing marriages remain unsettled with lack in evidences. To improve the situation, the Law Commission of India (1978) suggested "irretrievable breakdown of marriage" as an alternative path for divorce, which means, long separation with no possibility of resettlement. However, the proposal was abolished because of opposition, primarily by women's associations. An irretrievable breakdown of marriage is a concept where the husband and wife cannot live more as a couple because the nature of their marriage has got weakened so much that it is impossible for them to stay together.[7]

Ex - Rashmi and Vikram's marriage of ten years collapsed because they constantly fought and emotionally abused each other. Rashmi filed a petition for divorce on grounds of cruelty under Section 13(1)(ia) of the Hindu Marriage Act, 1955, but Vikram would not consent. The case went to court, where the mediation failed and evidence was reviewed, the judge found proof of cruelty and granted Rashmi a divorce decree nearly three years later.

Case Study: Naveen Kohli v Neelu Kohli[8]

This case emphasised the need to recognise the irretrievable breakdown of marriage as a valid ground for divorce, which is not explicitly specified in Indian statutes. Naveen Kohli and Neelu Kohli were married on November 20, 1975. During their marriage, they had three sons. Naveen, the appellant, constructed three factories and a bungalow to provide for his family. However, the marital relationship weakened over time, marked by accusations, disputes, and legal battles. The appellant sought divorce under Section 13 of the Hindu Marriage Act, 1955, mainly on the grounds of cruelty. The case also brought into focus the concept of irretrievable breakdown of marriage. The Supreme Court granted divorce under Section 13 of the Hindu Marriage Act, recognising cruelty and irretrievable breakdown as grounds. Additionally, the Court recommended that the Union of India consider amending the Hindu Marriage Act to include an irretrievable breakdown of marriage as a legal ground for divorce.

Difference between Mutual Consent Divorce and Contested Divorce

The selection between mutual divorce and contested divorce depends on the situation of the couple. If both are intending to end their marriage mutually, a mutual divorce is faster and less demanding. However, when a partner objects or there is disagreement regarding alimony, custody, or property, a contested divorce must be chosen. 

Knowledge of both processes helps couples in selecting the appropriate legal process and evaluating the process effectively.

Conclusion

In India, divorce process can be mentally exhausting and difficult especially for the women due to several legal procedures and hatred and criticism faced by them in society after their divorce. Divorces often have undermining effect on health and emotions for both families and children of the couples. Divorce in India, mutually consented or contested, is a legal means to end non-working marriages. Mutual consent provides a friendly and quicker solution, and contested divorce is filled with arguments and disagreement. Being aware of the differences gives advantage to couples to make the appropriate decision for their case and proceed with clarity and confidence.

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[1] Litem, Mutual Consent Divorce in India | Procedure, Documents, Fees, Litem, https://litem.in/mutual-consent-divorce.php(visited October 15, 2025).

[2] Kusum, Divorce by Mutual Consent, 29 J. Indian L. Inst. 110 (1987), available at https://www.jstor.org/stable/43951061.

[3] Bijal Ajinkya & Sachin Bhandawat, Mutual Consent Divorce under Hindu Law: Cooling-Off Period and Withdrawal of Consent, SCC Online Blog, 2024, https://www.scconline.com/blog/post/2024/01/11/mutual-consent-divorce-hindu-law-cooling-off-period-and-withdrawal-of-consent/ (visited Oct. 15, 2025).

[4] Jaya Shree Ramesh Londhe v. Ramesh Bhikaji Londhe, AIR 1984 Bom 302.

[5] Vaishali N., Contested Divorce, iPleaders Blog, 2023, https://blog.ipleaders.in/contested-divorce-2/#Conclusion (visited Oct. 15, 2025).

[6] Lead India, Stages of Contested Divorce Proceedings in India: A Step-by-Step Guide, Lead India Blog,2022, https://www.leadindia.law/blog/en/stages-in-contested-divorce-proceedings/ (visited Oct. 15, 2025).

[7] Supra note [2].

[8] Naveen Kohli v. Neelu Kohli, AIR 2006 SC 1675.