Family Law Questions and Answers in India

Family law in India is personal-law driven: the Hindu Marriage Act, 1955, the Special Marriage Act, 1954, the Indian Divorce Act, 1869 and Muslim personal law each govern different communities, alongside the Protection of Women from Domestic Violence Act, 2005 and the Guardians and Wards Act, 1890, which apply across communities.

Common questions cover the grounds and timeline for divorce, the difference between mutual consent and contested proceedings, maintenance and alimony under Section 125 of the criminal procedure code, child custody and the welfare principle courts apply, and protection orders in domestic violence matters.

Mutual consent divorce under Section 13B of the Hindu Marriage Act requires the couple to have lived apart for at least a year, and involves two motions separated by a statutory cooling-off period of six months, which the Supreme Court has held can be waived where the separation is long and reconciliation is not realistic. Contested divorce runs on specified grounds — cruelty, desertion, adultery, conversion, mental disorder — and takes considerably longer because each ground must be proved.

In custody matters courts do not apply a presumption in favour of either parent as a rule of law; the welfare of the child is the paramount consideration, and the child's own preference carries weight as they grow older. Custody, guardianship and visitation are distinct concepts, and an order dealing with one does not settle the others.

Maintenance can be claimed by a wife, children and dependent parents, and is assessed on the earning capacity of the paying spouse rather than the income they choose to declare. Interim maintenance during proceedings is available and is usually the first application filed.

Family matters are emotionally costly as well as financially costly, and the procedural choices made early — which forum, which ground, whether to attempt mediation — shape how long the whole thing takes. Advice before filing is usually worth far more than advice after.