Divorce and Maintenance in India: Grounds, Consent, Alimony

ByJurisAxios

Divorce and maintenance in India are governed by the Hindu Marriage Act 1955 (HMA), the Special Marriage Act 1954 (SMA) and section 144 of the Bharatiya Nagarik Suraksha Sanhita 2023 (BNSS) [old section 125 CrPC]. Divorce is available on fault grounds, by mutual consent or, in the Supreme Court alone, for irretrievable breakdown. Maintenance is fixed on sworn asset disclosure under the Rajnesh v Neha criteria, applied in rulings through 2026.

Grounds for divorce under the HMA and SMA

Section 13(1) HMA lists fault grounds open to either spouse; section 27 SMA, for civil and inter-faith marriages, is broadly parallel:

  • Adultery after the marriage.
  • Cruelty, physical or mental, judged on cumulative conduct.
  • Desertion for at least two years before the petition.
  • Conversion, incurable unsoundness of mind, communicable venereal disease, renunciation, or not being heard of for seven years.

Section 13(1A) adds no-fault grounds: no cohabitation for a year after judicial separation, or no restitution of conjugal rights for a year after a section 9 decree. Section 13(2) gives a wife further grounds, including the husband’s rape, sodomy or bestiality. Section 14 bars a petition within a year of marriage absent exceptional hardship.

Section 13B HMA (section 28 SMA) lets spouses who have lived apart for a year, cannot live together and agree to part file a joint petition in the family court. A second motion follows between six and eighteen months after the first.

In Amardeep Singh v Harveen Kaur (12 September 2017) the Supreme Court held the six-month period to be directory, not mandatory. A family court may waive it where eighteen months of separation have elapsed before the first motion, mediation has failed, alimony and custody are settled, and waiting would only prolong the parties’ agony.

If the above conditions are satisfied, the waiver of the waiting period for the second motion will be in the discretion of the concerned Court.

Amardeep Singh v Harveen Kaur (SC, 2017)

Irretrievable breakdown: Article 142 and Shilpa Sailesh

Irretrievable breakdown is not a statutory ground. In Shilpa Sailesh v Varun Sreenivasan (1 May 2023) a Constitution Bench confirmed that the Supreme Court may dissolve a marriage on this ground under Article 142(1) to do complete justice, even if one spouse objects. Factors include the length of separation (six years or more is significant), the allegations, reconciliation attempts, the parties’ age and means, and provision for children and alimony. The Bench added that the section 13B(2) period may be waived under Article 142, but that a party cannot file a writ petition under Article 32 to seek divorce directly; the ordinary route comes first.

Maintenance under section 144 BNSS (old section 125 CrPC)

Section 144 BNSS, in force from 1 July 2024, re-enacts section 125 CrPC without substantive change. A Magistrate may order a person with sufficient means who neglects to maintain his wife, minor children or parents unable to maintain themselves to pay a monthly allowance. A divorced wife who has not remarried is covered; there is no monetary ceiling. Sections 145 to 147 [old sections 126 to 128 CrPC] cover procedure, alteration and enforcement, including up to a month’s imprisonment per month of default.

The second proviso to section 144(1) permits interim maintenance and litigation expenses; the third requires the interim application to be decided, as far as possible, within sixty days of notice. Interim relief also lies under section 24 HMA, section 36 SMA and section 23 of the Domestic Violence Act 2005; permanent alimony under section 25 HMA and section 37 SMA. Interim orders are decided on affidavits and adjusted against the final award.

How courts fix the amount: Rajnesh v Neha

Rajnesh v Neha (4 November 2020) laid down directions for maintenance proceedings under every statute:

  1. Both parties must file an affidavit of disclosure of assets and liabilities in the prescribed format.
  2. Earlier maintenance orders must be disclosed and sums already awarded set off.
  3. Quantum turns on the parties’ status, the applicant’s needs, education and earning capacity, the marital standard of living, career sacrifices, and the respondent’s income, liabilities and dependants.
  4. Maintenance runs from the date of application and is enforceable through section 147 BNSS, execution, contempt and striking off the defence. Concealment in the affidavit invites an adverse inference.

Alimony rulings in 2025 and 2026

Recent judgments stress dignity and the marital standard of living. In Rakhi Sadhukhan v Raja Sadhukhan (29 May 2025) the Court raised permanent alimony from Rs 20,000 to Rs 50,000 per month with a 5 per cent rise every two years, citing inflation and the husband’s means. In Anamika Jain v Dr Atul Jain (28 January 2026) it doubled a Rs 15,000 award to Rs 30,000, observing that sustenance does not mean mere survival.

In Deepa Joshi v Gaurav Joshi (16 April 2026) the Court enhanced maintenance under section 144 BNSS, holding that loan repayments for acquiring assets cannot reduce the husband’s real earning capacity; the duty to maintain a spouse is primary. Courts closely scrutinise bank statements and tax returns, as in other civil litigation. For advice on your own matter, you may contact the firm.

Frequently asked questions

Can the six-month cooling-off period in a mutual consent divorce be waived?

Yes. Amardeep Singh v Harveen Kaur (2017) held the period directory, not mandatory. A family court may waive it if the parties have been apart for eighteen months, mediation has failed, all issues are settled and waiting would only prolong hardship.

Is there an upper limit on maintenance under section 144 BNSS?

No. The old ceiling in section 125 CrPC was removed in 2001 and section 144 BNSS has no cap. The Magistrate fixes a reasonable monthly sum on the parties’ means and needs under the Rajnesh v Neha criteria.

From which date is maintenance payable?

Rajnesh v Neha (2020) directed that maintenance in all proceedings be awarded from the date of application, not of the order, so that delay does not prejudice the dependent spouse.

Does an educated or working wife lose her right to maintenance?

Not automatically. In Anamika Jain v Dr Atul Jain (2026) the Supreme Court held that education or parental support does not end the husband’s obligation where the wife’s own income cannot sustain her marital standard of living.

Sources

This article is general information on divorce and maintenance in India as on 1 October 2026 and is not legal advice. Take independent advice on your own facts.

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