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There is a set procedure to law for filing a petition or an application and before which Court or Forum or competent authority. Section 21 of Hindu Marriage Act provides that all proceedings under this Act shall be regulated as far as may be, by Code of Civil Procedure. In case High Court of the concerned State has framed rules pertaining to any matter under the Act, those rules shall come into application for regulating the procedure for disposal of petitions or applications under the Act.
Code of Civil Procedure, in brief known as C.P.C, is one of statutes which deals with practice and procedure as to how, where and by whom a petition is to be instituted; as to how it is to be decided; as to what are the remedies available to the unsuccessful and unsatisfied party to challenge the decision of the Trial Court and as to how the appeal or revision challenging the decision of Trial Court is to be decided; and also as to how the decision given by a Court is to be executed or got implemented.
This Code is divided into two parts. First part contains sections 1 to 158.
In the second part, there are Orders I to 51. Each Order contains rules framed thereunder.
After institution of a petition or filing of an application or petition, opposite party is summoned by the concerned Court so as to provide him an opportunity of being heard.
It is not that you are at liberty to file a petition or application at any point of time. Every petition or application or petition is to be filed within a specified period. Law of Limitation as available under the Limitation Act and some other special Acts, like Hindu Marriage Act guides as to when or as to during which period or up to which period one can institute a petition or application.
Under the Code, both the parties are provided with reasonable opportunity to lead 'evidence. There is a procedure to lead evidence before the Court. Parties to the petition are called one by one or one after the other, to lead respective evidence in support of respective pleas. Evidence may be in the shape of statements or affidavits of the parties or their witnesses or in the shape of documents. Some documents are available with the parties. Others may be required to be summoned from different offices. It is not that a party can lead any kind of evidence. Every party has to show to the Court that the piece of evidence which he wants to bring on record is relevant for decision of the case. Law of Evidence as enshrined under the Evidence Act guides as to which piece of evidence is relevant and which is irrelevant. This Act also prescribes procedure as to how parties to the litigation are to lead evidence.
After stage of leading of evidence by the parties is over, the Presiding Officer hears arguments of each side. It is thereafter that judgment is pronounced. Each party is entitled to copy of judgment as per procedure laid down under the Code of Civil Procedure. Party aggrieved by the final decision given by the Court is entitled to file appeal or revision, as the case may be, before the Appellate Courts, as per procedure available under the Code of Civil Procedure. Appeal and review applications are to be filed within the stipulated period of limitation. Provisions of Limitation Act guide us as to what is the prescribed period of limitation for filing of appeal, second appeal and for review of the judgment and orders.
Contents and Verification of PetitionsEvery petition presented under Hindu Marriage Act is to state as distinctly as the nature of the case permits the facts on which the claim to relief is founded and that there is no collusion between the petitioner and the other party to the marriage.
However in a petition under section 11 of the Hindu Marriage Act, it is not necessary to state that there is no collusion between the petitioner and the other party to the marriage.
High Courts have framed various rules regarding pleadings in petitions under Hindu Marriage Act. Therefore, while drafting petitions it is to be kept in mind that the petitions are also in consonance with these rules.
In addition to the particulars required to be given under Order VII, rule 1, CPC and section 20(1) of the Hindu Marriage Act, all petitions under sections 9 to 13 are to state the contents mentioned therein.
Therefore, at the time such a petition is going to be drafted, you must inform your Advocate about the following:
(1) The place and date of marriage;
(2) Whether the couple was Hindu by religion at the time of marriage;
(3) Whether the couple continues to be Hindu by religion upto the date of filing of the petition;
(4) The name, status and domicile of the wife and the husband before the marriage and at the time of filing the petition;
(5) The address where the parties to the marriage reside at the time of the presentation of petition and where they last resided together;
(6) The names of children, if any, from the marriage, their sex and their dates of birth or ages;
(7) Full particulars. of any litigation, if any, between the parties, prior to the date of filing of petition;
(8) In case respondent has withdrawn from the society of the spouse, in a petition for restitution of conjugal rights, the date and the circumstances under which the respondent withdrew are required to be given in the petition;
(9) In case of a petition under section 12(1)(c) and (d) of the Hindu Marriage Act i.e., for decree of nullity 'of marriage, particulars of force or fraud and the circumstances in which force or fraud was practiced, with time when the facts relied upon were discovered, and whether or not marital intercourse with the consent of the petitioner took place after the discovery: of said facts, are to be specifically alleged;
(10) In every petition under section 10 or section 13 i.e., for judicial separation or decree of divorce, by the husband or wife on the ground that the other party indulged in adultery, specific acts of sexual intercourse, the occasion and place where the same were committed; and name, occupation and place of residence of such person with whom the opposite party had voluntary sexual intercourse, after- the marriage, are to be specified, so far as same can be ascertained.
(11) In case of desertion, date and the circumstances in which the desertion began are to be specified in the petition;
(12) In case of cruelty, the specific acts of cruelty and the occasion when and the •place where such acts were committed are to be specified in the petition;
(13) In case of unsoundness of mind or mental disorder, the time when such unsoundness of mind or mental disorder began to manifest itself and the nature and the period of the curative steps taken;
(14) If the petition is on the ground that the opposite party has renounced the world by entering any religious order, the date of renunciation and the particulars of the religious order which the respondent has entered into;
(15) If the petition is on the ground that the opposite party has not been heard of as being alive for a period of seven years or more, the date and place where the opposite party was last seen or heard or alive and the steps, if any, taken to ascertain his or her whereabouts;
(16) Where the petition is founded on the ground of rape or sodomy, the occasion when, the place where and the names and addresses of persons with whom such acts were committed. In case of conviction for committing rape or sodomy the particulars thereof;
(17) Where the petition is founded on the ground of bestiality, the occasion when, the place where and the particulars of the beast with whom the husband had been guilty of bestiality;
(18) Where petition for divorce is by the wife on the ground of non-compliance with a decree of maintenance passed under section 18 of Hindu Adoptions and Maintenance Act, 1956 or in proceedings under section 125 Cr.P.C, it is to be alleged and also testified in an affidavit that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards;
(19) Where the petition for divorce is by the wife on the ground that her marriage was solemnized before she attained the age of 15 years and she has repudiated the marriage after attaining that age but before attaining the age of 18 years, wife is to allege the date and the place of birth of the wife together with the date and the place of repudiation and its mode;
(20)- Parties are to specifically allege about property presented, at or about the time of marriage, which belonged jointly to the husband and wife.
Affidavits Required to be Filed with the PetitionIt is significant to note that alongwith .the petition, petitioner is required to file affidavit regarding certain particular facts. It stands so provided in the rules framed by various High Courts and are available in High Court Rules and Orders. These affidavits may be on the, following aspects:
(a) Where petition for divorce is by the wife on the ground of non-compliance with a decree of maintenance passed under section 18 of the Hindu Adoptions and Maintenance Act, 1956 or in proceedings under section 125 Cr.P.C, affidavit is required to be filed to the effect that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.
(b) Every petition (except petition for nullity of marriage) is to be accompanied by an affidavit to the effect that it is not being presented or prosecuted in collusion with the respondent.
(c) In the petition seeking judicial separation or divorce on the ground that the party has, after solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse, affidavit must state that the petitioner has not, in any manner, condoned or been accessory to or connived at the act or acts complained of.
(d) Where the ground of the petition is cruelty, affidavit must state that the petitioner has not condoned the act or acts complained- of or has not in any manner condoned the cruelty.
(e) Where the ground of petition is that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties, affidavit in support of this averment is to be annexed to the petition.
(f) Similarly, where the ground of petition is that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties, affidavit in support of this averment is required to be annexed to the petition.
The statements contained in every petition under this Act are required to be verified by the petitioner or some other competent person in the manner required by law for verification of plaints.
Every pleading is required to be verified at the foot by the party or by a person acquainted with the facts of the case, as per satisfaction of the Court. An affidavit in support of the pleadings is also to be furnished. In the verification clause, it is to be specifically verified by the party as to which fact is being verified on the basis of his own knowledge, and which fact is being verified on the basis of information received or believed to be true. (Order Vl, rule 15).
Entire Claim to be Put forth in the PetitionWhile narrating the facts constituting cause of action, it is to be seen that a petition must include entire claim as due during the days of institution of the petition. For example, you intend to file a petition for divorce on the ground of cruelty only, while your wife or husband has deserted you for a period of more than two years. While instituting petition for divorce, you are to claim decree of divorce on both the grounds available to you at that time. Never think that you would be able to claim in parts. You cannot file a petition firstly only on the basis of one of the two grounds when both are available to you, and subsequently on the other ground.
Law provides that once you omit to sue for or intentionally relinquish any portion of your claim, you cannot afterwards be allowed to institute petition for the claim omitted or relinquished. (Order II, rule 2, c.P.c.).
The idea is that matter in dispute between the parties is got adjudicated from the Court once for all, so that there is no further litigation.
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