Hindu divorce

Rules framed by the High Court under sections 14 and 21 of the Hindu Marriage Act 1955 (XXV of 1955) as amended by the Marriage Laws (Amendment) Act, 1976 (India Act No. 68 of 1976), for carrying out the purpose of the Act.

330. (1) Short title and Commencement : (i) These Rules may be called the Hindu Marriage and Divorce Rules, 1955.

(ii) These Rules shall come into force on 1st December 1955.

(2) Definitions - (i) “Act” means the Hindu Marriage Act, 1955 (Act XXV of 1955).

(ii) “Code” means the Code of Civil Procedure, 1908.

(iii) “Court” means the Court mentioned in section 3(b) of the Act.

(3) Petition : (a) Every petition under the Act shall be accompanied by certified extract from the Hindu Marriage Register maintained under section 8 of the Act or from the Register maintained under the Bombay Registration and Marriage Act (Bombay Act V of 1954), where the marriage has been registered under the Bombay Act or this Act.

(b) Every petition for divorce on any of the grounds mentioned in clauses (i) or (ii) of sub-section (1-A) of section 13 of the Act shall be accompanied by a certified copy of the decree for judicial separation or for restitution of conjugal rights, as the case may be.

(c) Every petition for divorce on the ground mentioned in clause (iii) of sub-section (2) of section 13 of the Act shall be accompanied by a certified copy of the decree or order for maintenance passed against the husband.

(4) Contents of Petitions : (i) In addition to the particulars required to be given under Order VII, rule 1 of the Civil Procedure Code and section 20(1) of the Act, every petition for judicial separation, nullity of marriage and divorce shall contain the following particulars :

(a) The place and date of marriage ;

(b) The name, status and domicile of the wife and husband before and after the marriage ;

(d) Whether there is living any issue of the marriage and, if so, the names and dates of the birth, or ages of such issues;-

(i) In every petition presented by a husband for divorce under section 13(1)(i) of the Act on the ground that his wife has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person or persons other that himself or for judicial separation under section 10(i) of the Act on the ground that his wife has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person or persons other than himself, the petitioner shall state the name, occupation and place of residence of such person or persons, so far as they can be ascertained.

(ii) In every petition presented by wife for divorce under section 13(1) (i) of the Act on the ground that her husband has, after the solemnisation of the marriage, had voluntary sexual intercourse with any woman or women other than herself or for judicial separation under section 10(1) of the Act, on the ground that her husband has, after the solemnisation of the marriage, had voluntary sexual intercourse with any woman or women other than herself, the petitioner shall state the name, occupation and place of residence of such woman or women, so far as they can be ascertained.

(e) Whether there have been in any Court in India, and if so, what previous proceedings with reference to the marriage by or on behalf of either of the parties and the result of such proceedings ;

(f) The statement that there is no collusion between the petitioner and the other party to the marriage ;

(g) The matrimonial offence or offences charged, set out in separate paragraphs with the time and place of its or their alleged commission ;

(h) Property mentioned in section 27 of the Act, if any ;

(i) The relief or reliefs prayed for.

(5) Necessary Parties : (a) in every petition for divorce or judicial separation on the ground that the respondent has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than the petitioner, the petitioner shall make such person a co-respondent. The Petitioner may, however, apply to the Court by an application supported by an affidavit for leave to dispenses with the joinder of such person as a co-respondent on any of the following grounds ;

(i) that the name of such person is unknown to the petitioner although he has made due efforts for discovery.

(ii) that such person is dead.

(iii) that the respondent being the wife is leading a life of prostitute and that the petitioner does not know any person with whom the respondent has, after the solemnisation of the marriage, had voluntary sexual intercourse.

(iv) for any other sufficient reason the Court may deem fit to consider ;

(b) In every petition under section 13(2) of the Act, the petitioner shall make “the other wife” mentioned in that section a co-respondent.

(c) In every petition under section 11 of the Act on the ground that the condition in section 5 (1) is contravened, the petitioner shall make the spouse alleged to be living at the time of the marriage a co-respondent.

(6) Verification of Petition : Statements contained in every petition shall be verified by the petitioner or some other competent person in a manner required by the Code of Civil Procedure for the time being in force for the verification of plaints.

(7) Forms of petitions : The petitions made under the Act shall, so far as possible, be made in the forms prescribed in the Schedule to the Indian Divorce Act, 1869 (IV of 1869).

(8) Petitions on behalf of petitioner of unsound mind or who are suffering from mental disorder : When a husband or a wife is of unsound mind or is suffering from mental disorder, any petition under the Act, other than the petition for restitution of conjugal rights, may be brought on his or her behalf by the person entitled to his or her custody.

(9) Petitions by minors : (i) Where the petitioner is a minor, he or she shall sue by his or her next friend to be approved by the Court ; and no petition presented by a minor under the Act shall be filed until the next friend has undertaken in writing to be answerable for costs.

Such undertaking shall be filed in Court, and the next friend shall thereupon be liable in the same manner and to the same extent as if he were a plaintiff in an ordinary suit.

(ii) The next friend shall file an affidavit along with the petition which shall state the age of the minor, that the next friend has no adverse interest to that of the minor and that the next friend is otherwise a fit and proper person to act as such.

(iii) The Court may, on considering the affidavit and such other material as it may require, record its approval to the representation of the minor by the next friend or pass such other orders as it may deem fit.

(10) Application for leave under section 14 of the Act : (i) Where any party to a marriage desires to present a petition for divorce within one year of such marriage, he or she shall obtain leave of the Court under section 14 of the Act on ex-parte application made to the Court in which the petition for divorce is intended to be filed.

(ii) The application shall be accompanied by the petition intended to be filed bearing the proper court fee under the law and in accordance with the rules. The application shall be supported by an affidavit made by the petitioner setting out the particulars of exceptional hardships to the petitioner or exceptional depravity on the part of the respondent on which leave is sought.

(iii) The evidence in such application may, unless the Court otherwise directs, be given by affidavit.

(iv) When the Court grants leave, the petition shall be deemed to have been duly filed on the date of the said order. The petitioner within a week of the date of the said order shall file sufficient number of copies of application for leave and order of the Court thereon and of the petition for divorce for service upon the respondents in the petition.

(11) Service of copy of application for and order granting leave on the Respondent and procedure after service : (i) When the Court grants leave under the preceding rule, a copy of the application for leave and order granting leave shall be served on each of the respondents along with the notice of the petition for divorce.

(ii) (a) When the respondent desires to contest the petition for divorce on the ground that leave for filing the petition has been erroneously granted or improperly obtained, he or she shall set forth in his or her written statement the grounds with particulars in which the grant of leave is sought to be contested.

(b) The Court may, if it so deems fit, frame, try and decide the issue as to the property of the leave granted as preliminary issue.

(c) The Court may, at the instance of either party, order the attendance for examination or cross examination of any deponent in the application for leave under the preceding rule.

(12) The Court shall issue notice to the respondent and co-respondent if any. The notice shall be accompanied by a copy of the petition. The notice shall be accompanied by a copy of the petition. The notice shall require, unless the Court otherwise directs, the respondent or co-respondent to file his or her statement in Court within a period of four weeks from the service of the notice and to serve a coy thereof upon each of the other parties to the petition within the aforesaid period.

(13) Service of Petitions - Every petition and notice under the Act shall be served on the party affected thereby in the manner provided for service of summons under Order V of the Civil Procedure Code :

Provided that the Court may dispense with such service altogether in case it seems necessary or expedient so to do.

(14) Written Statement in answer to petition by respondents : The respondent may and if so required by the Court shall present a written statement in answer to the petition. The provisions of Order VIII of the Code shall apply mutatis mutandis to such written statements. In particular, if in any proceedings for divorce the Respondent opposes the relief sought in the petition on the ground that the petitioner has , after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than the petitioner or committed an act of cruelty or desertion, the written statement shall state the particulars of such voluntary sexual intercourse, cruelty or desertion.

(15) Interveners Petition : (1) Unless the court for good cause shown otherwise directs, where in the petition or in the written statement of the respondent alleges voluntary sexual intercourse by the petitioner with a named person a certified copy of pleadings or material portion thereof containing such charge shall be served upon the person with whom such voluntary sexual intercourse is alleged to have been committed, accompanied by notice that such person is entitled within the time therein specified to apply for leave to intervene in the cause.

(2) (a) Costs regarding intervention : Whenever the Court finds that an intervener had no sufficient ground for intervening, it may, order the intervener to pay the whole or any part of the cost occasioned by the application to intervene.

(b) When the Court finds that the allegation of such voluntary sexual intercourse made against the intervener in any petition or written statement is baseless or not proved and the intervention is justified, it may order the person making such charge or allegation against the intervener to pay to the intervener the whole or any part of cost of intervention.

(16) Answer : A person to whom leave to intervene has been granted may file in the Court an answer to petition or written statement containing the charges or allegations, against such intervener.

(17) Mode of taking evidence : The witnesses in all proceeding before the Court, where their attendance can be had, shall be examined orally, and any party may offer himself or herself as a witness, and shall be examined, and may be cross examined and re-examined like any other witness :

Provided that the parties shall be at liberty to verity the respective cases in whole or in part by affidavit but so that the deponent in every such affidavit shall, on the application of the opposite party, or by direction of the Court, be subject to the cross-examined, by or on behalf of the opposite party orally, and after such cross-examination may be re-examined orally, as aforesaid, by or on behalf of the party by whom such affidavit was filed.

(18) Costs - Whenever in any petition presented by the husband, the person alleged to have voluntary sexual intercourse with his wife had been made a co-respondent and such voluntary sexual intercourse with his wife has been established, the Court may order the co-respondent to pay the whole or any part of the costs of the proceeding:

Provided that the co-respondent shall not be ordered to pay the petitioner's costs :

(i) If the respondent was at the time of such voluntary sexual intercourse living apart from her husband and leading the life of a prostitute, or

(ii) If the co-respondent had not, at the time of such voluntary sexual intercourse, reason to believe the respondent to be a married person.

(19) Applications for alimony and maintenance - (a) Every application for maintenance pendent lite permanent alimony and maintenance, or for custody, maintenance and education expresses of minor children, shall state the average monthly incomes of the petitioner and the respondent, the sources of these incomes particulars of other movable and immovable property owned by them, the number of dependents on the petitioner and the respondent, and the names and ages of such dependents.

(b) Such application shall be supported by an affidavit of the applicant.

(20) Taxation of Costs :- Unless otherwise directed by the Court, the costs of the petition under the Act shall be costs as taxed in suit.

(21) Order as to Costs :- The award of costs shall be within the discretion of the Court.

(22) Transmission of certified copy of the decree : The Court shall send the certified copy of every decree for divorce or nullity or dissolution of marriage to the Registrar of Marriages in charge of the Hindu Marriage Register, if any, or in charge of Register maintained under the Bombay Act V of 1954.

(23) Applicability of the Rules of the City Civil Court, Bombay : Where any applications or petitions under the Act are filed in the City Civil Court, Bombay, the rules of that Court, except in so far as they are inconsistent with the Act and these rules, shall apply to such applications or petitions.