CHAPTER XVII
RULES AND INSTRUCTIONS UNDER SPECIAL ACTS
Short Title and Commencement
323. (1) These Rules may be called the Divorce (District Court) Rules, 1929.
(2) They shall come into force on the 30th day of June 1929.
Petition
(3) All petitions under sections 10, 18, 23, 27, 32 or 34 of the Indian Divorce Act, 1869 (hereinafter called “the Act”) shall be accompanied by a certified copy of the certificate of the marriage, if such a certificate is available to the petitioner.
(4) (a) In the body of a petition under sections 10, 18, 23, 27, 32 or 34 of the Act shall be stated -
(i) whether the petitioner professes the Christian religion ;
(ii) the place and date of the marriage and the name, status and domicile of the wife before the marriage ;
(iii) the status of the husband and his domicile at the time of the marriage and at the time when the petition is presented and his occupation and the place or places of residence of the parties at the time or the institution of the suit ;
(iv) the principal permanent addresses where the parties have co-habited including the address where they last resided together in India ;
(v) Whether there is any living issue of the marriage, and if so, the names and dates of birth or ages of such issues ;
(vi) whether there have been in the Divorce Division of the High Court of Justice in England or in the Court of Sessions in Scotland or in any Court in India any, and if so, what previous proceedings with reference to the marriage by or on behalf of either of the parties to the marriage, and the result of such proceedings ;
(vii) the matrimonial offences charged set out in separate paragraph with the times and places of their alleged commission ;
(viii) the claim for damages, if any ;
(ix) the grounds on which the petitioner claims that the District Court, in which the petition is presented, has jurisdiction to determine the petition;
and, if the petition is one for a decree of dissolution of marriage or of nullity of marriage, or of judicial separation, it shall further state that there is not any collusion or connivance between the petitioner and the other party to the marriage.
(b) The petition shall conclude with a prayer setting out particulars or the relief claimed, including the amount of any claim for damages and any order for custody of children which is sought and shall be signed by the petitioner :
Provided that where the petitioner is, by reason of absence or for other good cause, unable to sign the petition, it may be signed by any person duly authorised by him or her to sign the same or to sue on his or her behalf.
Verification of Petition
(5) The statement contained in every petition shall be verified by the petitioner or some other competent person in manner required by the Code of Civil Procedure for the time being in force for the verification of plaints.
Co Respondents and Interveners
(6) In every petition presented by a husband for the dissolution of his marriage the petitioner shall make the alleged adulterers co-respondents in the suit, unless the Court shall otherwise direct under section 11 of the Act.
(7) Where a husband is charged with adultery with a named person, certified copy of the pleading containing such charge shall, unless the Court for good cause shown otherwise directs, be served upon the person with whom adultery is alleged to have been committed, accompanied by a notice that such person is entitled, within the time therein specified, to apply for leave to intervene in the cause.
Service of Petitions and Notices
(8) Every petition or notice under the Act shall be served on the party to be affected thereby either within or without India, in the manner prescribed by the Code of Civil Procedure for the time being in force for the service of summonses :
Provided that unless the Court for good cause shown otherwise directs, service of all such petitions and notices shall be effected by delivery of the same to the party to be affected thereby and the court shall record that it is satisfied that service has been so effected :
Provided also that Court may dispense with such service altogether in case it seems necessary or expedient to do so.
Answer and Subsequent Pleadings
(9) A respondent or co-respondent or a woman to whom leave to intervene has been granted under Rule 6, may file in the Court an answer to the petition.
(10) (i) Any answer which contains matter other than a simple denial of the facts stated in the petition shall be verified in respect of such matter by the respondent or co-respondent as the case may be in the manner required by these Rules for the verification of the petitions and when the respondent is husband or wife of the petitioner, the answer shall contain a declaration that there is not any collusion or connivance between the parties.
(ii) Where the answer of husband alleges adultery and prays relief, a certified copy thereof shall be served upon the alleged adulterer, together with a notice to appear in like manner as a petition. When in such case no relief is claimed the alleged adulterer shall not be made a co-respondent, but a certified copy of the answer shall be served upon him together with a notice as under Rule 6 that he is entitled within the time therein specified to apply for leave to intervene in the suit, and upon such application he may be allowed to intervene, subject to such direction as shall then be given by the Court.
(11) (i) If it appears to the Court that proceedings for the dissolution of the marriage have been instituted in England or Scotland before the date on which the petition was filed in India, the Court shall either dismiss the petition or stay further proceedings thereon until the proceedings in England or Scotland have terminated, or until the Court shall otherwise direct.
(ii) If it appears that such proceedings were instituted after the filing of the petition in India, the Court may proceed subject to the provisions of the Act with the trial of the suit :
Provided, that unless the Court for good cause shown otherwise directs, service of all such petitions and notices shall be affected by delivery of the same to the party to be affected thereby, and the Court shall record that it is satisfied that service has been so effected :
Provided also that the Court may dispense with such service altogether in case it seems necessary or expedient to do so.
Judgment
(12) Every judgment granting a decree for dissolution of marriage, nullity of marriage, or judicial separation shall record clear findings as to the facts which give the Court jurisdiction to pass the decree : and the Court for this purpose should take care to see that sufficient and proper evidence is adduced in the course of the proceedings to enable it to record such findings.
Confirmation of Decree for dissolution of marriage or nullity of marriage
(13) When the District Judge has made decree for dissolution of marriage or of nullity of marriage, a copy thereof shall be served on the Respondent and Co-Respondent within a month from the date of the decree and the parties shall be informed that the case for confirmation of the decree will come on in the High Court on or after six months from the date of the decree and that no further notice of the date of hearing will be given. They shall at the same time be warned that a remarriage before six months from the date on which the decree is made absolute by the High Court is prohibited by section 57 of the Act and that such remarriage is liable under section 19 to be declared a nullity.
(14) The District Judge shall then submit the proceedings to the High Court for orders under section 17 or 20, as the case may be.
(15) Cases for confirmation of a decree received from a District Judge under sections 17 and 20 of the Act shall not be heard by the High Court till after the expiry of six months from the pronouncing of such decree.
(16) After the period of six months mentioned in Rule 14 has expired, the decree may be confirmed even though no application for that purpose has been made to the Court, or no party appears at the hearing.
(17) Any person wishing to show cause against the confirmation of the District Judge's decree on the ground that the decree has been obtained by collusion or by reason of material facts not being brought before the Court, or because of any change of circumstances since the passing of the decree such as that the parties have resumed the relation of husband and wife or that the petitioner has died, shall, if the Court so permits, enter an appearance in the proceedings before the High Court and file affidavits setting forth the facts upon which he relies. Certified copies of the affidavits shall be served upon the party or the Advocate of the party in whose favour the decree has been pronounced.
(18) Any person applying under the last paragraph of section 17 of the Act to the High Court to remove the suit from the Court of a District Judge may file an application for the purpose supported by an affidavit setting forth the grounds on which the applicant relies. Copies of the application and affidavit shall be served on all parties to the suit who may, within a time to be fixed by the High Court, file affidavits in reply, and the High Court shall then make such further orders in the matter as it deems fit.
(19) The party in the suit in whose favour the decree has been pronounced may within a time to be fixed by the Court file affidavits in answer and the person showing cause against the decree being confirmed may within a further time to be fixed file affidavits in reply.
Alimony, Maintenance and Custody of Children
(20) The District Court shall not entertain an application for alimony, maintenance or the custody of children or for the modification or discharge of the order for alimony, maintenance or the custody of children unless the person on whose petition the decree for the dissolution of the marriage was pronounced is at the time the application is made resident in India.
Rules framed by the High Court under Section 41 of the Special Marriage
Act, XLIII of 1954, as amended by the Marriage Law (Amendment) Act,
1976, (India Act No. 68 of 1976), for carrying out the provisions of
Chapter V, VI and VII of the Act.
328A. Rules framed by the High Court under section 82 of the Arbitration and Conciliation Act, 1996.
(1) Entitling of application affidavit and proceeding &(a) Save as here in after provided all applications affidavits and proceedings under this Act shall be titled “In the matter to Arbitration and Conciliation Act, 1996 and in the matter of Arbitration (state the proceeding and its number) under section for.......
Note - All the applications under sections (1), 9 11, (4)(5)(6), 14(2) 27, 34 and 36 shall be titled as above by inducting relevant section and purpose as follows in the above title :-
Under sections 8(1), 45 and 54 for reference to Arbitration.
Under section 9 for interim measure (e.g. Appointment of guardian)
Under section 11 (4)(5)(6) for appointment of an arbitrator.
Under section 14(2) for termination of the mandate of an arbitrator.
Under section 27 for Court Assistance in taking evidence.
Under section 34 for setting aside arbitral award.
Under section 36 for enforcement of arbitral award.
(b) An appeal under sections 37, 50 and 59 shall be entitled “In the matter of the Arbitration and conciliation Act, 1996 and in the matter to Arbitration (State the proceeding and its number), appeal under section 37against (state the section under which and the nature of impugned order e.g., order under section 34 setting aside arbitral award)”
(2) Mode of application - All applications under the Act shall be made only to the proper Court and all applications shall be made by petitions and shall be presented in the same manner as plaints or other applications to the Clerk of the Court or to such other Officer as the Court appoints in that behalf who shall cause them to be registered and take such order as are necessary from the Presiding Judge.
(3) Contents of Petition – Every petition shall be divided in paragraphs numbered consecutively and shall contain a statement of fact relied on, and the nature of the relief asked for and shall clearly specify the persons liable to be affected thereby. Acertified copy of the Arbitration Agreement or the Award relating to the Petition, if any whenever necessary, shall be annexed thereto. The date of the order appointing arbitrator shall be mentioned in the application wherever applicable.
(4) Notice of application to persons affected by award - Upon any application by petition under the Act the Judge shall direct Notice thereof to be given to all persons mentioned in the petition and to such other persons as may seem to him to be likely to be affected by the proceedings requiring all or nay of such persons to show cause within the time specified in the notice, why the relief sought in the petition should not be granted.
(5) Court Fees and Process fees – The Court fees and Process fees chargeable for all petitions shall be in accordance with the Court Fees Act and the rules for the levy of process fees in force for the time being.
(6) Forms – The forms mentioned in these rules are the forms at pages 98 to 100 and shall be used with such variations as the circumstances of each case may require.
(7) Appointing Judges as Arbitrators – The system of appointing Judges as arbitrators through legal and convenient, is open to objection A party may sometimes be compelled against his wishes to agree to such an arbitration : and it may be difficult for a litigant to raise objections successfully to an award on the ground of erroneous procedure or technical misconduct of the arbitrator before the Court when the Presiding Officer was himself the arbitrator. Further, it is undesirable that Judges who have given awards as arbitrators could be subject to reckless personal charges at the instance of suitors disappointed by an award. The practice, therefore, of presiding Judges acting as arbitrators is undesirable.
(8) Cost of copies - Copies to pleadings and issues in cases of suits referred to arbitration should be prepared at the cost of the parties.
(9) Service of order appointing arbitrator - an order appointing Arbitrator/s should be served on arbitrators whether they are present in the court or not and even when they are present in Court and express their willingness to act as such. In all theses cases, process fee should be charged for serving an order on arbitrators. Where, however, a party is permitted to serve the copy of an order or reference on the arbitrator, half the usual process fee should be charged.
Note - (1) Proceedings filed under the Repealed Act and pending before the Subordinate Courts shall be governed by the existing Rules i.e., clauses 324 to 328 of Civil Manual.
The proceedings instituted under the Arbitration and Conciliation Act, 1996 shall be governed by the newly framed Rules i.e. Clause 328A of Civil Manual.
(2) Conciliation proceedings shall be governed by the Rules to be framed by the High Court of Judicature at Bombay, separately.
Rules framed by the High Court under Section 41 of the Special Marriage Act, XLIII of 1954, as amended by the Marriage Laws (Amendment)Act, 1976 (India Act No. 68 of 1976, for carrying out the provisions of Chapter V, VI and VII of the Act.
329. (1) Short title and Commencement -
(i) These rules may be called the Special Marriage Rules, 1954.
(ii) The rules shall come into force on the 1st January 1955.
(2) Definitions :(i) “Act” means the Special Marriage Act, 1954 (Act XLIII of 1954) as amended by the Marriage Laws (Amendment) Act, 1976 (India Act No. 68 of 1976).
(ii) “Code” means the Code of Civil Procedure, 1908.
(iii) “District Court” means, in any area for which there is a City Civil Court that Court, and in any other ares, the principal Civil Court of original jurisdiction, and includes any other Civil Court which may be specified by the State Government by notification in the Official Gazette as having jurisdiction in respect of the matters dealt with in the Act.”
(3) Petition : (a) Every petition made under the Act shall be accompanied by certified copy of the certificate from the Marriage Certificate Book about the solemnisation of the marriage under the Act.
(b) A petition for divorce on any of the grounds mentioned in clauses (i) and (ii) of sub-section (2) of section 27 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.
(4) Contents of Petitions : In addition to the particulars required to be given under Order VII, rule 1, of the Civil Procedure Code, 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 the marriage.
(c) The principal permanent address where the parties cohabited including the address they lase resided together ;
(d) Whether there is living any issue of the marriage and, if so, the names and dates of birth, or ages of such issues ;-
(i) In every petition presented by a husband for divorce or judicial separation, on the ground that his wife has after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than 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 a wife for divorce or judicial separation, on the ground that her husband has after the solemnisation of the marriage had voluntary sexual intercourse with any woman other than the petitioner 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 matrimonial offences charged set out in separate paragraphs with the time and places of their alleged commission ;
(g) The claims for damages, if any, with particulars :
(h) If the petition is one for a decree of dissolution of marriage, or of nullity or annulment of marriage or for judicial separation, it shall further state that there is no collusion or connivance between the petitioner and the other parties to the marriage or alleged marriage ;
(i) The relief or reliefs prayed for.
(5) Co-respondent in husband's petition - In any petition presented by a husband for divorce or judicial separation, on the ground that his wife has since the solemnisation of the marriage been nullity of voluntary sexual intercourse with any person other than the petitioner, the petitioner shall make such person alleged to be guilty of voluntary sexual intercourse, a co-respondent to the said petition unless he is excused from so doing by an order of the Court, which may be made on any or more of the following grounds, which shall be supported by an affidavit in respect of the relevant facts :-
(i) That the respondent is leading the life of a prostitute, and that the petitioner knows of no person with whom the respondent had voluntary sexual intercourse :
(ii) That the name of the person with whom the respondent is alleged to be guilty of voluntary sexual intercourse is unknown to the petitioner, although he had made due efforts for discovery ;
(iii) That the person with whom the respondent is alleged to be guilty of voluntary sexual intercourse, is dead ;
(iv) For any other sufficient reason that the Court may deem fit to consider.
(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 person of unsound mind : When a husband or a wife is a person of unsound mind or incapable of giving valid consent in consequence of unsoundness of mind ; or though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children, or has been subject to recurrent attacks of insanity or epilepsy; and 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) Notice - The Court shall issue notice to the respondent and co-respondent, if any. The notice shall be accompanied, by the copy of the petition. The notice shall also 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 copy thereof upon each of the other parties to the petition, within the aforesaid period.
(11) Service or Petitions: Every petition and notice under the Act shall be served on the party affected thereby in 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.
(12) Written statements in answer to petitions 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 statement. In particular, if in any proceedings for divorce, the Respondent opposes the relief sought in the petition on the ground that after the solemnisation of the marriage the petitioner had voluntary sexual intercourse with any person other than the Respondent, cruelty or desertion, the written statement shall state particulars of such voluntary sexual intercourse cruelty or desertion as required in the case of petition under clauses (d) and (f) of Rule 4, and the particulars of any relief which he claims on the said grounds.
(13) Interveners in wife's petition : (1) Unless the Court for cause shown otherwise directs :-
(a) Where the husband is charged with voluntary sexual intercourse with a named female person a certified copy of pleading or material portion thereof containing such charge shall be served upon the named female person alleged to be guilty of voluntary sexual intercourse, accompanied by a notice that such person is entitled within the time there in specified to apply for leave to intervene in the cause.
(b) Where the written statement of the Respondent alleges voluntary sexual intercourse by the petitioner with a named male person a certified copy of such a statement or such material portion thereof containing such allegation shall be served on such person, accompanied by a notice that such person is entitled within the time therein specified to apply for leave to intervene in the cause.
(2) Costs regarding Intervention : (a) Whenever the Court finds that an intervener has no sufficient grounds for intervening, it may order the intervener to pay the whole or any part of the costs occasioned by the application to intervene.
(b) Whenever the Court finds that the charge or allegations of voluntary sexual intercourse against the intervener made in any petition or written statement is baseless or not proved and that the intervention is justified, it may order the person making such charge or allegation against the intervener to pay to the intervener whole or any part of the costs of intervention.
(14) Answer : A person to whom leave to intervene has been granted may file in the Court an answer to the petition or written statement containing the charges or allegation against such intervener.
(15) Intervention by third party : During the progress of the petition under chapter V or VI of the Act, any person suspecting that any parties to the petition are or have been acting in collusion, or the petitioner has committed fraud or he has concealed some material facts from the Court for the purpose of obtaining the decree prayed for, shall be at liberty to apply to the Court stating the circumstances and facts of such collusion, fraud and concealment, as the case may be. The application shall be supported by an affidavit. When such application is filed, the Court shall give notice thereof, to the parties concerned and after hearing them and taking necessary evidence pass the necessary orders :
(i) If the Court comes to the conclusion that such collusion, fraud or concealment of material fact is proved, then the original petition shall be dismissed and the intervening third party shall be awarded his costs from the parties, guilty of such collusion, fraud or concealment of facts.
(ii) Whenever such application is made and the Court comes to the conclusion that the intervening third party had no grounds or no sufficient grounds for intervening, it may order him to pay the whole or any part of the costs occasioned by his intervention.
(16) Competence of husband and wife to give evidence as to cruelty or desertion to judicial separation- On any petition presented by wife praying for divorce or judicial separation by reason of her husband having been guilty of adultery coupled with cruelty or adultery coupled with desertion without reasonable excuse, the husband and wife respectively shall be competent and compellable to give evidence of or relating to such cruelty or desertion.
(17) Mode of taking evidence : The witnesses in all proceedings 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 petition of the opposite party, or by direction of the Court, be subject to be cross-examined by or on behalf of 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) Damages : Any husband, may, either in a petition for divorce or judicial separation, claim damages from any person on the ground that after the solemnisation of the marriage he had voluntary sexual intercourse with the wife of such petitioner :
(i) Such petition shall be served on the person alleged to be guilty of voluntary sexual intercourse and the wife unless the Court dispenses with such service in accordance with the provision of Rule No. 11.
(ii) The damages to be recovered on any such petition shall be ascertained by the said Court, although the respondent or either of them may not appear. After the decision has been given, the Court may direct in what manner the damages shall be paid or applied.
(19) Costs - Whenever in any petition presented by a husband the person alleged to be guilty of the voluntary sexual intercourse has been made a co-respondent and the voluntary sexual intercourse 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 co-respondent shall not be ordered to pay the petitioner's costs :
(i) if the respondent was, at the time of voluntary sexual intercourse, living apart from her husband and leading the life of prostitute or ;
(ii) if the co-respondent had not, at the time of voluntary sexual intercourse, reason to believe the respondent to be a married woman.
(20) Taxation of Costs : Unless otherwise directed by the Court, the costs of the petition under the Act shall be costs as taxed in suits under the Indian Divorce Act, IV of 1869.
(21) Order as to Costs - The award of cost shall be within discretion of the Court and the Court shall make an order about the same while passing the decree.
(22) Power to adjourn - The Court may, from time to time, adjourn the hearing of any petition under the Act, and may require further evidence thereon if it sees fit so to do.
(23) Transmission of certified copy of the Decree : The Court shall send a certified copy of every decree for divorce or nullity or dissolution of marriage to the Marriage Officer appointed under section 3 of the Act.
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 ;
(c) The principal permanent address where the parties cohabited including the address where they last resided together ;
(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.
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