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CHAPTER XVII
RULES AND INSTRUCTIONS UNDER SPECIAL ACTS
Rules framed by the High Court under section 62 of the Indian Divorce Act,1869, relating to the Procedure of District Courts, and of the High Court in
Cases for Confirmation of the District Court's Decree.
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 DivorceAct, 1869 (hereinafter called “the Act”) shall be accompanied by a certified copy of thecertificate 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 theAct 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 ofthe wife before the marriage ;
(iii) the status of the husband and his domicile at the time of the marriageand at the time when the petition is presented and his occupation and the place or placesof residence of the parties at the time or the institution of the suit ;
(iv) the principal permanent addresses where the parties have cohabitedincluding the address where they last resided together in India ;
(v) Whether there is any living issue of the marriage, and if so, the namesand dates of birth or ages of such issues ;
(vi) whether there have been in the Divorce Division of the High Court ofJustice 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 ofeither of the parties to the marriage, and the result of such proceedings ;
(vii) the matrimonial offences charged set out in separate paragraph with thetimes 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, inwhich 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 ofmarriage, or of judicial separation, it shall further state that there is not any collusion orconnivance between the petitioner and the other party to the marriage.
(b) The petition shall conclude with a prayer setting out particulars or therelief claimed, including the amount of any claim for damages and any order for custodyof children which is sought and shall be signed by the petitioner :
Provided that where the petitioner is, by reason of absence or for other goodcause, unable to sign the petition, it may be signed by any person duly authorised by himor 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 thepetitioner or some other competent person in manner required by the Code of CivilProcedure 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 hismarriage the petitioner shall make the alleged adulterers corespondents 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, certifiedcopy of the pleading containing such charge shall, unless the Court for good cause shownotherwise directs, be served upon the person with whom adultery is alleged to have beencommitted, accompanied by a notice that such person is entitled, within the time thereinspecified, 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 beaffected thereby either within or without India, in the manner prescribed by the Code ofCivil 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 theparty to be affected thereby and the court shall record that it is satisfied that service hasbeen so effected :
Provided also that Court may dispense with such service altogether in case itseems necessary or expedient to do so.
Answer and Subsequent Pleadings
(9) A respondent or corespondent or a woman to whom leave to intervenehas 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 thefacts stated in the petition shall be verified in respect of such matter by the respondent orcorespondent as the case may be in the manner required by these Rules for theverification 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 connivancebetween the parties.
(ii) Where the answer of husband alleges adultery and prays relief, acertified copy thereof shall be served upon the alleged adulterer, together with a notice toappear in like manner as a petition. When in such case no relief is claimed the allegedadulterer shall not be made a corespondent, 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 timetherein specified to apply for leave to intervene in the suit, and upon such application hemay 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 themarriage have been instituted in England or Scotland before the date on which thepetition was filed in India, the Court shall either dismiss the petition or stay furtherproceedings thereon until the proceedings in England or Scotland have terminated, oruntil the Court shall otherwise direct.
(ii) If it appears that such proceedings were instituted after the filing ofthe petition in India, the Court may proceed subject to the provisions of the Act with thetrial 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 theparty to be affected thereby, and the Court shall record that it is satisfied that service hasbeen so effected :
Provided also that the Court may dispense with such service altogether incase it seems necessary or expedient to do so.
Judgment
(12)Every judgment granting a decree for dissolution of marriage, nullity ofmarriage, or judicial separation shall record clear findings as to the facts which give theCourt jurisdiction to pass the decree : and the Court for this purpose should take care tosee that sufficient and proper evidence is adduced in the course of the proceedings toenable 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 orof nullity of marriage, a copy thereof shall be served on the Respondent and CoRespondent within a month from the date of the decree and the parties shall be informedthat the case for confirmation of the decree will come on in the High Court on or after sixmonths 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 monthsfrom the date on which the decree is made absolute by the High Court is prohibited bysection 57 of the Act and that such remarriage is liable under section 19 to be declared anullity.
(14)The District Judge shall then submit the proceedings to the High Courtfor orders under section 17 or 20, as the case may be.
(15) Cases for confirmation of a decree received from a District Judge undersections 17 and 20 of the Act shall not be heard by the High Court till after the expiry ofsix months from the pronouncing of such decree.
(16)After the period of six months mentioned in Rule 14 has expired, thedecree may be confirmed even though no application for that purpose has been made tothe Court, or no party appears at the hearing.
(17)Any person wishing to show cause against the confirmation of theDistrict Judge's decree on the ground that the decree has been obtained by collusion or byreason of material facts not being brought before the Court, or because of any change ofcircumstances since the passing of the decree such as that the parties have resumed therelation 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 settingforth the facts upon which he relies. Certified copies of the affidavits shall be servedupon the party or the Advocate of the party in whose favour the decree has beenpronounced.
(18)Any person applying under the last paragraph of section 17 of the Act tothe High Court to remove the suit from the Court of a District Judge may file anapplication for the purpose supported by an affidavit setting forth the grounds on whichthe applicant relies. Copies of the application and affidavit shall be served on all partiesto 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 pronouncedmay within a time to be fixed by the Court file affidavits in answer and the personshowing cause against the decree being confirmed may within a further time to be fixedfile 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 orderfor alimony, maintenance or the custody of children unless the person on whose petitionthe decree for the dissolution of the marriage was pronounced is at the time theapplication is made resident in India.
Rules framed by the High Court under Section 44 of the Arbitration Act, X of 1940
324. (1) Entitling of application, affidavit and proceeding
(a) Save as hereinafter provided, all applications, affidavits and proceedings,under the Act shall be entitled “In the matter of the Act and in the matter of theArbitration (State the proceeding and its number).”
(b) Applications under Chapter IV of the Act shall be entitled “In the suit ormatter (State the proceeding and its number).”
(c) Applications under section 34 of the Act shall be entitled “In the suitwhich the applicant seeks to have stayed.”
(d) Applications under section 7(2) of the Act shall be entitled “In the matterof the insolvency in which the reference to arbitration is sought of claimed.”
(e) Applications under section 14 of the Act shall be numbered and registeredas regular suits. Other applications under the Act shall be numbered and registered asMiscellaneous Applications requiring judicial enquiry.
(2) Mode of application : All applications under the Act shall be made only tothe proper Court and all applications shall be made by petitions and shall be presented inthe same manner as plaints or other applications to the Clerk of the Court or to such otherOfficer as the Court appoints in that behalf who shall cause them to be registered and takesuch order as are necessary from the presiding Judge.
(3) Contents of petition : Every petition shall be divided into paragraphsnumbered consecutively and shall contain a statement of facts relied on, and the nature of
the relief asked for and shall clearly specify that persons liable to be affected hereby. Acopy of the Arbitration, agreement, the special case or the Award relating to the petition,if any, whenever necessary, shall be annexed thereto.
(4) Filing of Award : The Arbitrator or Umpire shall cause the Award or asigned copy thereof to be filed in Court, together with any depositions and documentswhich have been taken and proved before him and the opinion pronounced by the Courton a special case submitted by him, if any, in accordance with section 14 of the Act, byforwarding the same under a sealed cover addressed to the Court, with a letter requestingthat the same be filed. He shall also send together with the Award a copy of the Noticegiven to the parties concerned and affidavit of service of such Notice and of attestation ofhis signature on the Award.
(5) Arbitrator or Umpire to make affidavit : The Arbitrator or Umpire shallalso make an affidavit stating (1) the date on which the Award was made and signed. (2)that all depositions taken and documents proved before him have been forwarded to theCourt along with the Award and (3) that no documents which came into his possession inthe course of the arbitration proceedings have remained with him. Such affidavit shall befiled along with the Award.
(6) Notice of filing Award : When the Award has been filed in Court, theCourt shall forthwith issue Notice of such filing to the parties interested in the Award.
(7) Notice of applications to persons affected by Awards : Upon anyapplication by petition under the Act, the Judge shall direct Notice thereof the be given toall persons mentioned in the petition and to such other persons as may seem to him to belikely to be affected by the proceedings, requiring all or any of such persons to showcause, within the time specified in the notice, why the relief sought in the petition shouldnot be granted.
(8) Limitation for application for judgment on Award : An application forjudgment in terms of an Award shall not be made until after the expiration of 30 daysfrom the date of service of the notice of filing Award.
(9) Court to issue notice on application under section 20 : When anapplication under section 20 of the Act is filed and registered, the Court shall on theapplication issue a Notice, returnable within not less than 10 days from the servicethereof, calling upon the opposite party to show cause why the Arbitration Agreement
should not be filed.
(10) Processes to be issued on application by Arbitrator or Umpire :Processes to the parties to arbitration proceedings or to witnesses shall be issued by theCourt on the written application of the Arbitrator or the Umpire.
(11) Accompaniment of the above application : If the proceedings are underChapter II of the Act, the application for such processes must be accompanied by a copyof the agreement under which the Arbitrator or the Umpire is acting. If other wise, thedate of the order appointing him Arbitrator or Umpire shall be mentioned in theapplication.
(12) Application of Code of Civil Procedure and the Civil Manual : In thecases not provided for in the foregoing rules or in the Act, the provisions of the Code ofCivil Procedure, 1908, and the Civil Manual, mutatis mutandis, shall apply to allproceedings before the Court and to all appeals under the Act.
(13) The Court fees and process fees chargeable for all petitions shall be inaccordance with the Court fees Act and the rules for the levy of process fees in force forthe time being.
(14) The forms mentioned in these rules are the forms at pages 98 to 100 andshall be used with such variations as the circumstances of each case may require.
325. In some parts of the State, certain classes of moneylenders are in the habit oflending money to impecunious military and civil officers and to poor agriculturists, noton bonds or promissory notes but on arbitration awards, and the loan, the amount ofwhich is usually much less than the amount stated as advanced in and payable by theaward is not advanced until after these arbitration awards are actually filed in CivilCourts and decrees passed thereon. The object of this procedure is apparently to oust thejurisdiction of the Civil Courts and prevent them from inquiring into the terms of thetransaction. It has been found that some Judges have been in the habit of ordering thesesocalled arbitration awards to be filed and passing decrees thereon without enquiringinto their nature. Every Judge must, therefore, before allowing an award to be filedsatisfy himself that there was, in fact some point of real difference between the parties,that it was submitted to arbitration and that there was a genuine arbitration upon thatpoint.
326. The system of appointing Civil Judges as arbitrators in suits pending beforethem, though legal and convenient, is open to object. A party may sometimes becompelled against his wishes to agree to such an arbitration ; and it may be difficult for alitigant to raise objections successfully to an award on the ground of erroneous procedureor technical misconduct of the arbitrator before the Court when the Presiding Officer washimself the arbitration. Further, it is undesirable that Judges who have given awards asarbitrators should be subject to reckless personal charges at the instance of suitorsdisappointed by an award. The practice, therefore, of presiding judges acting asarbitrators in suit pending before them is undesirable.
327. Copies of pleadings and issues in cases of suits referred to arbitration shouldbe prepared at the cost of the parties.
328. An order of reference should be served on arbitrators where they are presentin the Court or not and even when they are present in Court and express their willingnessto act as such. In all these cases, process fees should be charged for serving an order ofreference on arbitrators. Where, however, a party is permitted to serve the copy of anorder of reference on the arbitrator, half the usual process fee should be charged.
Rules framed by the High Court under Section 41 of the Special MarriageAct, XLIII of 1954, as amended by the Marriage Law (Amendment) Act,
1976, (India Act No. 68 of 1976), for carrying out the provisions ofChapter V, VI and VII of the Act.
328A. Rules framed by the High Court under section 82 of the Arbitration andConciliation Act, 1996.
(1) Entitling of application affidavit and proceeding &(a) Save as here inafter provided all applications affidavits and proceedings under this Act shall be titled “Inthe 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, 34and 36 shall be titled as above by inducting relevant section and purpose as follows in theabove 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 ofthe Arbitration and conciliation Act, 1996 and in the matter to Arbitration (State theproceeding and its number), appeal under section 37against (state the section under whichand the nature of impugned order e.g., order under section 34 setting aside arbitralaward)”
(2) Mode of application All applications under the Act shall be made onlyto the proper Court and all applications shall be made by petitions and shall be presentedin the same manner as plaints or other applications to the Clerk of the Court or to suchother Officer as the Court appoints in that behalf who shall cause them to be registeredand take such order as are necessary from the Presiding Judge.
(3) Contents of Petition – Every petition shall be divided in paragraphsnumbered consecutively and shall contain a statement of fact relied on, and the nature ofthe 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 anywhenever necessary, shall be annexed thereto. The date of the order appointing arbitratorshall be mentioned in the application wherever applicable.
(4) Notice of application to persons affected by award Upon anyapplication by petition under the Act the Judge shall direct Notice thereof to be given toall persons mentioned in the petition and to such other persons as may seem to him to belikely to be affected by the proceedings requiring all or nay of such persons to showcause within the time specified in the notice, why the relief sought in the petition shouldnot be granted.
(5) Court Fees and Process fees – The Court fees and Process fees chargeablefor all petitions shall be in accordance with the Court Fees Act and the rules for the levyof process fees in force for the time being.
(6) Forms – The forms mentioned in these rules are the forms at pages 98 to100 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 asarbitrators 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 alitigant to raise objections successfully to an award on the ground of erroneous procedureor technical misconduct of the arbitrator before the Court when the Presiding Officer washimself the arbitrator. Further, it is undesirable that Judges who have given awards asarbitrators could be subject to reckless personal charges at the instance of suitorsdisappointed by an award. The practice, therefore, of presiding Judges acting asarbitrators is undesirable.
(8) Cost of copies Copies to pleadings and issues in cases of suits referredto arbitration should be prepared at the cost of the parties.
(9) Service of order appointing arbitrator an order appointing Arbitrator/sshould be served on arbitrators whether they are present in the court or not and evenwhen they are present in Court and express their willingness to act as such. In all thesescases, 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 theusual process fee should be charged.
Note (1) Proceedings filed under the Repealed Act and pending before theSubordinate Courts shall be governed by the existing Rules i.e., clauses 324 to 328 ofCivil Manual.
The proceedings instituted under the Arbitration and Conciliation Act, 1996shall 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 bythe 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 ActNo. 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 of1976).
(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 bynotification in the Official Gazette as having jurisdiction in respect of the matters dealtwith in the Act.”
(3) Petition : (a) Every petition made under the Act shall be accompanied bycertified copy of the certificate from the Marriage Certificate Book about thesolemnisation of the marriage under the Act.
(b) A petition for divorce on any of the grounds mentioned in clauses (i)and (ii) of subsection (2) of section 27 of the Act shall be accompanied by a certifiedcopy of the decree for judicial separation or for restitution of conjugal rights as the casemay be.
(4) Contents of Petitions : In addition to the particulars required to be givenunder Order VII, rule 1, of the Civil Procedure Code, every petition for judicialseparation, 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 namesand dates of birth, or ages of such issues ;
(i) In every petition presented by a husband for divorce or judicialseparation, on the ground that his wife has after the solemnisation of the marriage, hadvoluntary sexual intercourse with any person other than the petitioner, shall state thename, occupation and place of residence of such person or persons so far as they can beascertained ;
(ii) In every petition presented by a wife for divorce or judicialseparation, on the ground that her husband has after the solemnisation of the marriagehad 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 faras they can be ascertained ;
(e) Whether there have been in any Court in India, and if so whatprevious proceedings with reference to the marriage by or on behalf of either of theparties and the result of such proceedings ;
(f) The matrimonial offences charged set out in separate paragraphs withthe 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 ofnullity or annulment of marriage or for judicial separation, it shall further state that thereis no collusion or connivance between the petitioner and the other parties to the marriageor alleged marriage ;
(i) The relief or reliefs prayed for.
(5) Corespondent in husband's petition In any petition presented by ahusband for divorce or judicial separation, on the ground that his wife has since thesolemnisation of the marriage been nullity of voluntary sexual intercourse with anyperson other than the petitioner, the petitioner shall make such person alleged to beguilty of voluntary sexual intercourse, a corespondent to the said petition unless he isexcused from so doing by an order of the Court, which may be made on any or more ofthe following grounds, which shall be supported by an affidavit in respect of the relevantfacts :
(i) That the respondent is leading the life of a prostitute, and that thepetitioner knows of no person with whom the respondent had voluntary sexualintercourse :
(ii) That the name of the person with whom the respondent is alleged tobe guilty of voluntary sexual intercourse is unknown to the petitioner, although he hadmade due efforts for discovery ;
(iii) That the person with whom the respondent is alleged to be guilty ofvoluntary sexual intercourse, is dead ;
(iv) For any other sufficient reason that the Court may deem fit toconsider.
(6) Verification of petition : Statements contained in every petition shall beverified by the petitioner or some other competent person in a manner required by theCode 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 aspossible, 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 wifeis a person of unsound mind or incapable of giving valid consent in consequence ofunsoundness of mind ; or though capable of giving a valid consent, has been sufferingfrom mental disorder of such a kind or to such an extent as to be unfit for marriage andthe procreation of children, or has been subject to recurrent attacks of insanity orepilepsy; and petition under the Act, other than the petition for restitution of conjugalrights, 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 sueby his or her next friend to be approved by the Court ; and no petition presented by aminor under the Act shall be filed until the next friend has undertaken in writing to beanswerable for costs. Such undertaking shall be filed in Court, and the next friend shallthereupon be liable in the same manner and to the same extent as if he were a plaintiff inan ordinary suit.
(ii) The next friend shall file an affidavit along with the petition which shallstate the age of the minor, that the next friend has no adverse interest to that of the minorand 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 itmay require, record its approval to the representation of the minor by the next friend orpass such other orders as it may deem fit.
(10) Notice The Court shall issue notice to the respondent and corespondent, if any. The notice shall be accompanied, by the copy of the petition. Thenotice 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 theservice of the notice and to serve a copy thereof upon each of the other parties to thepetition, within the aforesaid period.
(11) Service or Petitions: Every petition and notice under the Act shall beserved on the party affected thereby in manner provided for service of summons underOrder V of the Civil Procedure Code ;
Provided that the Court may dispense with such service altogether in case itseems necessary or expedient so to do.
(12) Written statements in answer to petitions by Respondents : TheRespondent may and, if so required by the Court, shall, present a written statement inanswer to the Petition. The provisions of Order VIII of the Code shall apply mutatismutandis to such written statement. In particular, if in any proceedings for divorce, theRespondent opposes the relief sought in the petition on the ground that after thesolemnisation of the marriage the petitioner had voluntary sexual intercourse with anyperson other than the Respondent, cruelty or desertion, the written statement shall stateparticulars of such voluntary sexual intercourse cruelty or desertion as required in thecase of petition under clauses (d) and (f) of Rule 4, and the particulars of any relief whichhe claims on the said grounds.
(13) Interveners in wife's petition : (1) Unless the Court for cause shownotherwise directs :
(a) Where the husband is charged with voluntary sexual intercourse witha named female person a certified copy of pleading or material portion thereof containingsuch 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 withinthe time there in specified to apply for leave to intervene in the cause.
(b) Where the written statement of the Respondent alleges voluntarysexual intercourse by the petitioner with a named male person a certified copy of such astatement or such material portion thereof containing such allegation shall be served onsuch person, accompanied by a notice that such person is entitled within the time thereinspecified 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 thewhole or any part of the costs occasioned by the application to intervene.
(b) Whenever the Court finds that the charge or allegations of voluntarysexual intercourse against the intervener made in any petition or written statement isbaseless or not proved and that the intervention is justified, it may order the personmaking such charge or allegation against the intervener to pay to the intervener whole orany part of the costs of intervention.
(14) Answer : A person to whom leave to intervene has been granted may filein the Court an answer to the petition or written statement containing the charges orallegation against such intervener.
(15) Intervention by third party : During the progress of the petition underchapter V or VI of the Act, any person suspecting that any parties to the petition are orhave been acting in collusion, or the petitioner has committed fraud or he has concealedsome 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 suchcollusion, fraud and concealment, as the case may be. The application shall be supportedby an affidavit. When such application is filed, the Court shall give notice thereof, to theparties concerned and after hearing them and taking necessary evidence pass thenecessary orders :
(i) If the Court comes to the conclusion that such collusion, fraud orconcealment of material fact is proved, then the original petition shall be dismissed andthe intervening third party shall be awarded his costs from the parties, guilty of suchcollusion, fraud or concealment of facts.
(ii) Whenever such application is made and the Court comes to theconclusion that the intervening third party had no grounds or no sufficient grounds forintervening, it may order him to pay the whole or any part of the costs occasioned by hisintervention.
(16) Competence of husband and wife to give evidence as to cruelty ordesertion to judicial separation On any petition presented by wife praying for divorce orjudicial separation by reason of her husband having been guilty of adultery coupled withcruelty or adultery coupled with desertion without reasonable excuse, the husband andwife respectively shall be competent and compellable to give evidence of or relating tosuch 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 mayoffer himself or herself as a witness and shall be examined, and may be crossexaminedand reexamined, like any other witness :
Provided that the parties shall be at liberty to verity the respective cases inwhole or in part by affidavit, but so that the deponent in every such affidavit shall, on thepetition of the opposite party, or by direction of the Court, be subject to be crossexamined by or on behalf of opposite party, orally, and after such crossexamination maybe reexamined orally as aforesaid by or on behalf of the party by whom such affidavitwas filed.
(18) Damages : Any husband, may, either in a petition for divorce or judicialseparation, claim damages from any person on the ground that after the solemnisation ofthe 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 ofvoluntary sexual intercourse and the wife unless the Court dispenses with such service inaccordance with the provision of Rule No. 11.
(ii) The damages to be recovered on any such petition shall be ascertainedby the said Court, although the respondent or either of them may not appear. After thedecision has been given, the Court may direct in what manner the damages shall be paidor applied.
(19) Costs Whenever in any petition presented by a husband the personalleged to be guilty of the voluntary sexual intercourse has been made a corespondentand the voluntary sexual intercourse has been established, the Court may order the corespondent to pay the whole or any part of the costs of the proceeding.
Provided that corespondent 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 corespondent 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 ofthe petition under the Act shall be costs as taxed in suits under the Indian Divorce Act, IVof 1869.
(21) Order as to Costs The award of cost shall be within discretion of theCourt 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 thehearing of any petition under the Act, and may require further evidence thereon if it seesfit so to do.
(23) Transmission of certified copy of the Decree : The Court shall send acertified copy of every decree for divorce or nullity or dissolution of marriage to theMarriage 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 purposeof the Act.
330. (1) Short title and Commencement : (i) These Rules may be called the HinduMarriage 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 of1955).
(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 bycertified extract from the Hindu Marriage Register maintained under section 8 of the Actor 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 subsection (1A) of section 13 of the Act shall be accompanied by a certifiedcopy of the decree for judicial separation or for restitution of conjugal rights, as the casemay be.
(c) Every petition for divorce on the ground mentioned in clause (iii) ofsubsection (2) of section 13 of the Act shall be accompanied by a certified copy of thedecree or order for maintenance passed against the husband.
(4) Contents of Petitions : (i) In addition to the particulars required to begiven 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 thefollowing particulars :
(a) The place and date of marriage ;
(b) The name, status and domicile of the wife and husband before andafter the marriage ;
(c) The principal permanent address where the parties cohabitedincluding the address where they last resided together ;
(d) Whether there is living any issue of the marriage and, if so, the namesand 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 forjudicial separation under section 10(i) of the Act on the ground that his wife has, after thesolemnisation of the marriage, had voluntary sexual intercourse with any person orpersons other than himself, the petitioner shall state the name, occupation and place ofresidence 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 womanor women other than herself, the petitioner shall state the name, occupation and place ofresidence 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 previousproceedings with reference to the marriage by or on behalf of either of the parties and theresult of such proceedings ;
(f) The statement that there is no collusion between the petitioner and theother party to the marriage ;
(g) The matrimonial offence or offences charged, set out in separateparagraphs 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 separationon the ground that the respondent has, after the solemnisation of the marriage, hadvoluntary sexual intercourse with any person other than the petitioner, the petitioner shallmake such person a corespondent. The Petitioner may, however, apply to the Court byan application supported by an affidavit for leave to dispenses with the joinder of suchperson as a corespondent on any of the following grounds ;
(i) that the name of such person is unknown to the petitioner although hehas made due efforts for discovery.
(ii) that such person is dead.
(iii) that the respondent being the wife is leading a life of prostitute andthat the petitioner does not know any person with whom the respondent has, after thesolemnisation 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 corespondent.
(c) In every petition under section 11 of the Act on the ground that thecondition in section 5 (1) is contravened, the petitioner shall make the spouse alleged tobe living at the time of the marriage a corespondent.
(6) Verification of Petition : Statements contained in every petition shall beverified by the petitioner or some other competent person in a manner required by theCode 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 aspossible, 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 sufferingfrom mental disorder : When a husband or a wife is of unsound mind or is suffering frommental disorder, any petition under the Act, other than the petition for restitution ofconjugal rights, may be brought on his or her behalf by the person entitled to his or hercustody.
(9) Petitions by minors : (i) Where the petitioner is a minor, he or she shallsue by his or her next friend to be approved by the Court ; and no petition presented by aminor under the Act shall be filed until the next friend has undertaken in writing to beanswerable for costs.
Such undertaking shall be filed in Court, and the next friend shall thereuponbe liable in the same manner and to the same extent as if he were a plaintiff in an ordinarysuit.
(ii) The next friend shall file an affidavit along with the petition whichshall state the age of the minor, that the next friend has no adverse interest to that of theminor 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 materialas it may require, record its approval to the representation of the minor by the next friendor 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, heor she shall obtain leave of the Court under section 14 of the Act on exparte applicationmade 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 befiled bearing the proper court fee under the law and in accordance with the rules. Theapplication shall be supported by an affidavit made by the petitioner setting out theparticulars of exceptional hardships to the petitioner or exceptional depravity on the partof the respondent on which leave is sought.
(iii) The evidence in such application may, unless the Court otherwisedirects, be given by affidavit.
(iv) When the Court grants leave, the petition shall be deemed to havebeen duly filed on the date of the said order. The petitioner within a week of the date ofthe said order shall file sufficient number of copies of application for leave and order ofthe Court thereon and of the petition for divorce for service upon the respondents in thepetition.
(11) Service of copy of application for and order granting leave on theRespondent and procedure after service : (i) When the Court grants leave under thepreceding rule, a copy of the application for leave and order granting leave shall beserved 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 onthe ground that leave for filing the petition has been erroneously granted or improperlyobtained, he or she shall set forth in his or her written statement the grounds withparticulars 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 tothe property of the leave granted as preliminary issue.
(c) The Court may, at the instance of either party, order the attendance forexamination or cross examination of any deponent in the application for leave under thepreceding rule.
(12) The Court shall issue notice to the respondent and corespondent if any.
The notice shall be accompanied by a copy of the petition. The notice shall beaccompanied by a copy of the petition. The notice shall require, unless the Courtotherwise directs, the respondent or corespondent to file his or her statement in Courtwithin a period of four weeks from the service of the notice and to serve a coy thereofupon each of the other parties to the petition within the aforesaid period.
(13) Service of Petitions Every petition and notice under the Act shall beserved on the party affected thereby in the manner provided for service of summonsunder Order V of the Civil Procedure Code :
Provided that the Court may dispense with such service altogether in case itseems necessary or expedient so to do.
(14) Written Statement in answer to petition by respondents : The respondentmay and if so required by the Court shall present a written statement in answer to thepetition. The provisions of Order VIII of the Code shall apply mutatis mutandis to suchwritten statements. In particular, if in any proceedings for divorce the Respondentopposes the relief sought in the petition on the ground that the petitioner has , after thesolemnisation of the marriage, had voluntary sexual intercourse with any person otherthan the petitioner or committed an act of cruelty or desertion, the written statement shallstate the particulars of such voluntary sexual intercourse, cruelty or desertion.
(15) Interveners Petition : (1) Unless the court for good cause shownotherwise directs, where in the petition or in the written statement of the respondentalleges voluntary sexual intercourse by the petitioner with a named person a certifiedcopy of pleadings or material portion thereof containing such charge shall be served uponthe person with whom such voluntary sexual intercourse is alleged to have beencommitted, accompanied by notice that such person is entitled within the time thereinspecified to apply for leave to intervene in the cause.
(2) (a) Costs regarding intervention : Whenever the Court finds that anintervener had no sufficient ground for intervening, it may, order the intervener to pay thewhole or any part of the cost occasioned by the application to intervene.
(b) When the Court finds that the allegation of such voluntary sexualintercourse made against the intervener in any petition or written statement is baseless ornot proved and the intervention is justified, it may order the person making such chargeor 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 filein the Court an answer to petition or written statement containing the charges orallegations, against such intervener.
(17) Mode of taking evidence : The witnesses in all proceeding before theCourt, where their attendance can be had, shall be examined orally, and any party mayoffer himself or herself as a witness, and shall be examined, and may be cross examinedand reexamined like any other witness :
Provided that the parties shall be at liberty to verity the respective cases inwhole or in part by affidavit but so that the deponent in every such affidavit shall, on theapplication of the opposite party, or by direction of the Court, be subject to the crossexamined, by or on behalf of the opposite party orally, and after such crossexaminationmay be reexamined orally, as aforesaid, by or on behalf of the party by whom suchaffidavit was filed.
(18) Costs Whenever in any petition presented by the husband, the personalleged to have voluntary sexual intercourse with his wife had been made a corespondentand such voluntary sexual intercourse with his wife has been established, the Court mayorder the corespondent to pay the whole or any part of the costs of the proceeding :
Provided that the corespondent shall not be ordered to pay the petitioner'scosts :
(i) If the respondent was at the time of such voluntary sexual intercourseliving apart from her husband and leading the life of a prostitute, or
(ii) If the corespondent had not, at the time of such voluntary sexualintercourse, reason to believe the respondent to be a married person.
(19) Applications for alimony and maintenance (a) Every application formaintenance pendent lite permanent alimony and maintenance, or for custody,maintenance and education expresses of minor children, shall state the average monthlyincomes of the petitioner and the respondent, the sources of these incomes particulars ofother movable and immovable property owned by them, the number of dependents on thepetitioner 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 ofthe 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 ofthe Court.
(22) Transmission of certified copy of the decree : The Court shall send thecertified copy of every decree for divorce or nullity or dissolution of marriage to theRegistrar of Marriages in charge of the Hindu Marriage Register, if any, or in charge ofRegister maintained under the Bombay Act V of 1954.
(23) Applicability of the Rules of the City Civil Court, Bombay : Where anyapplications or petitions under the Act are filed in the City Civil Court, Bombay, the rulesof that Court, except in so far as they are inconsistent with the Act and these rules, shallapply to such applications or petitions.
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