Divorce for Cruelty or Desertion Section 13 HMA 2026

A spouse who has suffered sustained mental or physical cruelty, or been abandoned for two continuous years, can seek a contested divorce under Section 13(1) of the Hindu Marriage Act, 1955, in the Family Court without the other side agreeing. Unlike a mutual-consent divorce, this is a fault-based petition where you must plead and prove the ground. This 2026 guide explains cruelty and desertion, the filing steps, documents, alimony, and where to get free legal aid.

A contested divorce under Section 13 of the Hindu Marriage Act, 1955 lets one spouse end a Hindu marriage when the other refuses to agree, by proving a statutory fault such as cruelty or desertion. The court decides after hearing evidence, attempting reconciliation, and considering maintenance and child custody.

Section 13(1) of the Hindu Marriage Act, 1955 lists the fault grounds on which either spouse may seek dissolution of marriage. The two most commonly used grounds are:

• Cruelty, Section 13(1)(ia): the respondent has, after the marriage, treated the petitioner with cruelty. This covers both physical violence and mental cruelty, which courts assess from the cumulative conduct of the marriage rather than any single isolated incident.
• Desertion, Section 13(1)(ib): the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. Desertion needs two things together, the actual separation and the intention to permanently end cohabitation.

Other Section 13(1) grounds include adultery under 13(1)(i), conversion to another religion, unsoundness of mind, virulent and incurable disease, and renunciation of the world. These are pleaded only where the facts clearly fit, since each carries its own proof burden.

Where a Family Court exists, Section 7 of the Family Courts Act, 1984 gives it the powers of a district court over suits for dissolution of marriage. The place of filing is set by Section 19 of the Hindu Marriage Act, 1955: the petition is filed where the marriage was solemnised, where the parties last resided together, or where the wife currently resides.

On mental cruelty, the Supreme Court in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, set out fourteen illustrative instances of mental cruelty and held that no court should attempt a single exhaustive definition. Although that appeal arose under the Special Marriage Act, its reasoning on mental cruelty is routinely applied to Section 13(1)(ia) of the Hindu Marriage Act, and the Court stressed that ordinary wear and tear of married life is not enough.

On desertion, the Supreme Court in Bipinchandra Jaisinghbhai Shah v. Prabhavati, AIR 1957 SC 176, held that desertion requires both the factum of separation and the intention to bring cohabitation permanently to an end, and both must continue through the statutory period.

The court must also weigh related reliefs: interim maintenance and litigation expenses under Section 24 during the case, and permanent alimony and maintenance under Section 25 at the end, along with custody of any children.

1. Consult a family lawyer or your District Legal Services Authority and confirm which ground fits your facts, cruelty or desertion or another.
2. Draft the divorce petition under Section 13(1), pleading specific dated incidents, the conduct relied on, and the relief sought including maintenance and custody.
3. Identify the correct Family Court using the jurisdiction rule above, where married, where last resided together, or where the wife resides.
4. File the petition with the court fee and supporting affidavit, and the court issues notice or summons to the respondent.
5. Attend the mandatory reconciliation or mediation referral, which Family Courts attempt before a contested trial proceeds.
6. Apply for interim maintenance and litigation cost under Section 24 if you need financial support during the proceedings.
7. Lead evidence: file documents, examine yourself and witnesses, and face cross-examination on the pleaded incidents.
8. After final arguments, the court passes a decree granting or refusing divorce and decides alimony and custody.

• Marriage certificate or proof of solemnisation of the marriage.
• Address proof of both spouses and proof of where you last lived together.
• Dated record of the cruelty or desertion, such as police complaints, medical reports, messages, emails, or photographs.
• Names and details of witnesses who can speak to the conduct.
• Income and asset details of both spouses for the maintenance claim.
• Birth certificates of children, if custody is sought.
• Identity proof such as Aadhaar and PAN.

• Relying on a single quarrel; under Section 13(1)(ia) courts look at cumulative conduct, not one outburst.
• Filing for desertion before the full two continuous years under Section 13(1)(ib) have run.
• Pleading vague allegations without dates, places, or specific incidents, which courts cannot test.
• Ignoring interim maintenance under Section 24 and struggling financially through a long trial.
• Destroying or hiding assets, which damages credibility and the maintenance claim under Section 25.
• Skipping the mediation referral, which Family Courts treat as a serious procedural step.

Family-court divorce records and your own case file are personal court matters, not obtained through the RTI Act. However, you can use RTI honestly for general public-authority information, such as court fee schedules, the working of the District Legal Services Authority (DLSA), panel-lawyer lists, and the status of legal-aid applications. Free legal aid is your right under the Legal Services Authorities Act, and NALSA along with every DLSA provides lawyers at no cost to eligible citizens, including women.

You can draft such a request in minutes with the AI RTI Drafter, and if the reply is delayed or refused, build your appeal with the First Appeal Builder. For the wider citizen view of using information rights, see RTI Act, 2005.

To,
The Public Information Officer,
District Legal Services Authority, [District Name]

Subject: Information under the Right to Information Act, 2005

Sir/Madam,
Under Section 6(1) of the RTI Act, 2005, please provide:
1. The procedure and eligibility criteria to obtain free legal aid for a matrimonial case.
2. The current list of empanelled legal-aid advocates for family matters.
3. The number of legal-aid applications received and granted in the last one year.

I am eligible for the fee waiver as a person below the poverty line / I enclose the fee of ₹10. Please furnish the information within the period prescribed under Section 7(1) of the Act. If any part is denied, please give reasons and inform me of the First Appellate Authority under Section 19(1).

Yours faithfully,
[Name, address, date]

Cruelty under Section 13(1)(ia) is conduct, physical or mental, that makes living together unreasonable. Desertion under Section 13(1)(ib) is abandonment for at least two continuous years with the intention to end the marriage permanently.

The respondent must have deserted you for a continuous period of not less than two years immediately before you present the petition, and the intention to abandon must continue through that period.

Mental cruelty fully counts. In Samar Ghosh v. Jaya Ghosh, the Supreme Court gave fourteen illustrative instances of mental cruelty and said courts must look at the cumulative effect of conduct.

In the Family Court that has jurisdiction, which is generally where the marriage was solemnised, where you last lived together as spouses, or where the wife currently resides.

Yes. Family Courts attempt reconciliation or refer the parties to mediation before a contested trial proceeds, as part of their statutory function.

Yes. Under Section 24 of the Hindu Marriage Act you can claim interim maintenance and litigation expenses, and under Section 25 you can seek permanent alimony at the end.

Yes, if you are eligible. NALSA and your District Legal Services Authority provide free legal aid, and women are generally entitled to legal aid under the Legal Services Authorities Act.

No. Court case records are not provided through RTI. You can use RTI for general public information like legal-aid procedures, panel-lawyer lists, and court fee schedules.

It varies widely by court and complexity, often one to three years or more, because evidence, cross-examination, and reconciliation attempts all take time.

• Hindu Marriage Act, 1955, Section 13 (grounds for divorce), India Code: https://www.indiacode.nic.in/
• Section 13(1) text, indiankanoon.org: https://indiankanoon.org/doc/932494/
• Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511: https://indiankanoon.org/doc/766894/
• Bipinchandra Jaisinghbhai Shah v. Prabhavati, AIR 1957 SC 176 (desertion elements): https://indiankanoon.org/doc/1131783/
• Hindu Marriage Act, 1955, Section 19 (where to file the petition): https://indiankanoon.org/doc/371013/
• Family Courts Act, 1984, Section 7 (jurisdiction): https://indiankanoon.org/doc/1261278/
• National Legal Services Authority (free legal aid): https://nalsa.gov.in/

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