Matrimonial & family

Divorce, maintenance, custody, domestic violence and the matrimonial courtroom.

Questions advocates ask about Matrimonial & family

Divorce, maintenance and custody run under different statutes depending on the parties' religion and the relief sought. For Hindus, Buddhists, Jains and Sikhs the Hindu Marriage Act governs divorce, and maintenance can also be claimed under the BNSS irrespective of religion. In every custody dispute the welfare of the child is the governing test.

What are the grounds for divorce under the Hindu Marriage Act?

Section 13(1) lists, among others, adultery, cruelty, desertion for at least two years, conversion to another religion, unsoundness of mind, a communicable venereal disease and renunciation of the world. Irretrievable breakdown of marriage is not a ground in the Act, but the Supreme Court, exercising its power under Article 142, has dissolved marriages on that basis, and a Constitution Bench in 2023 confirmed that it may do so.

Hindu Marriage Act, 1955, s. 13(1); Shilpa Sailesh v. Varun Sreenivasan (Constitution Bench, 2023)

The parties must have lived separately for at least a year before presenting the petition. The second motion can be made after six months and within eighteen months of the first. The Supreme Court has held the six-month wait is directory, not mandatory, and a family court may waive it where the conditions it describes are met.

Hindu Marriage Act s. 13B; Amardeep Singh v. Harveen Kaur, (2017) 8 SCC 746

Can a wife claim maintenance, and under which law?

Yes. A wife who cannot maintain herself can claim maintenance from her husband under the BNSS, whatever the parties' religion, and the provision also covers children and parents. Parties to a Hindu marriage can additionally seek interim and permanent maintenance in the matrimonial petition. The Supreme Court has directed that both sides file an affidavit of assets and liabilities.

BNSS s. 144 (formerly CrPC s. 125); Hindu Marriage Act ss. 24, 25; Rajnesh v. Neha, (2021) 2 SCC 324

What replaced Section 498A of the IPC?

Section 85 of the Bharatiya Nyaya Sanhita (BNS) punishes a husband or his relative who subjects a woman to cruelty, with imprisonment up to three years and a fine, and Section 86 defines cruelty. The Supreme Court has repeatedly directed that arrests in such cases not be made automatically.

BNS ss. 85, 86 (formerly IPC s. 498A); Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273

What can a woman get under the Domestic Violence Act?

A Magistrate can pass protection orders, residence orders (including the right to remain in the shared household), orders for monetary relief, custody orders and orders for compensation, in addition to any maintenance or other proceedings. It applies to women in a domestic relationship, which includes but is not limited to marriage.

Protection of Women from Domestic Violence Act, 2005, ss. 18 to 22

How do courts decide who gets custody of a child?

By the welfare of the child, which is the paramount consideration, taking into account the child's age, wishes where mature enough, the child's stability and the conduct and means of each parent. Neither parent has an automatic right, and the order can be varied as circumstances change.

Guardians and Wards Act, 1890, s. 17; Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42

Prepared by The EduLaw Editorial Team on 2 November 2026. It has not yet been reviewed by a named advocate. Educational content, not legal advice; check the current text of each provision before relying on it.

Judgments and analysis

Ready-to-file drafts

2,100+ editable Indian legal drafts across 40+ practice areas — applications, petitions, notices, replies and agreements. See the drafts bundle.

Notes and Playbooks

Bundles

Other practice areas