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This article is written by Neeraj Salodkar, pursuing a Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho.

Introduction

A matrimonial petition is a petition which deals with matters relating to matrimony. There is no statutory definition for the term ‘matrimony’. Matrimony means relating to marriage. Therefore, any petition which deals with ancillary or incidental matters related to marriage is called matrimonial petitions. Following are some examples:

  1. Petition for divorce;
  2. Application for maintenance of self and/or children;
  3. Application for custody of children;
  4. Petition for judicial separation;
  5. Application for the restitution of conjugal rights;
  6. Petition for dissolution of marriage;

The above list is only an illustrative list and not an exhaustive list. 

Rules of matrimonial petitions

There are no separate rules for matrimonial petitions. The procedure of drafting and filing is similar to that of the Code of Civil Procedure. The particulars to be mentioned in the plaint and a written statement is similar to the petitions in matrimonial petitions. Title of the court in which the petition is being filed; name, age, and description of the respective parties; the body of the petition which contains the facts of the case and lastly, the relief claimed from the court. An affidavit and a verification must accompany the same. The petition must contain all the documents which the party wishes to rely upon. Process fee needs to be paid. 

Section 21 of the Hindu Marriage Act, 1956, states that all proceedings under the said Act shall be regulated as far as may be, by the Code of Civil Procedure. If the High Court of the concerned State has made rules regarding the matter, then the given rules shall be applicable. 

As it can be seen from the above paragraph, the rules of pleadings given in the Code of Civil Procedure apply mutatis mutandis to matrimonial petitions. 

The Limitation Act, 1963, is also applicable to matrimonial petitions. The Limitation Act prescribes various timelines for filing the petition before the court. The petitioner/plaintiff must file his petition/plaint within the given time. The Limitation Act’s object is to make the citizens vigilant about their rights and not to harass the defendants for any ancient cases. 

Drafting of a matrimonial petition

Typically, at the time of the drafting of the petition, the following particulars must be contained in the petition:

  1. The place and the date of marriage. (As it is a matrimonial petition, it is usual to show that the parties are married.)
  2. The religion of the parties. (It assists in determining which statute shall be applicable. The uniform civil code is still not in force, and so different personal laws are applicable to different people.)
  3. The residence of the parties at the present time. (It assists in determining where to serve the summons. It also helps in determining the jurisdiction of the court.)
  4. The last residing place of the married couple. (It also helps in determining the jurisdiction of the court.) 
  5. The names of the children, their age, their address. (It is crucial in the cases of custody and maintenance of children. It may also show the state of marriage in some cases.) 
  6. Full particulars and details of the litigation between the current parties pending or disposed of in any other court in India. (It assists in checking whether the doctrine of res sub judice or res judicata shall be applicable. It also shows the present and past state of the relationship between the married couple.)
  7. In case the respondent has deserted the petitioner, the date of such desertion. How much time has elapsed since such desertion. The reason for such desertion. (It assists in the grant of divorce. Under the Hindu Marriage Act, there must be a desertion of a minimum of 2 years for the grant of divorce.) 
  8. The grounds for filing the present petition/application. If the petition is for divorce [Section 13 of the Hindu Marriage Act], it is compulsory to mention the reason for filing the petition. Following are some of the grounds mentioned in the Hindu Marriage Act:
  1. Cruelty;
  2. After solemnization of marriage, either spouse voluntarily had sexual intercourse with any person other than the spouse;
  3. Desertion;
  4. Any spouse has been suffering from venereal disease in a communicable form;
  5. Any spouse has renounced the world by entering into any religious order;
  6. Any spouse has not been heard of as being alive for a period of seven years or more by those persons who would have naturally heard of it, had the party been alive;
  7. That the husband has, since the solemnization of marriage, been guilty of rape, sodomy, or bestiality. 

This is only an illustrative list. There are other grounds as well.

  1. If the petition is under section 13B, divorce by mutual consent, the same has to be mentioned in the petition. The reasons must be mentioned as well. 
  2. The financial standing of the parties must also be mentioned. This is of particular importance at the time of demand for maintenance. It assists in determining who should give maintenance and who should receive maintenance. It also helps in determining the amount of maintenance. 

It is essential to note the fact that Order II, Rule 2, and section 11 (Res judicata) of the Code of Civil Procedure is directly applicable to matrimonial proceedings. Therefore, it is crucial to ask all the reliefs in one go. The court may not allow any subsequent petitions/applications. 

SAMPLE FORMAT OF A DIVORCE PETITION (THE MOST COMMON MATRIMONIAL PETITION)

IN THE COURT OF ______________________

IN THE MATTER OF 

Name of the petitioner, age, occupation, address

Petitioner

//Versus//

Name of the respondent, age, occupation, address

Respondent

Sir, 

The petitioner most respectfully submits as under: 

  1. That the petitioner was married to the respondent as per Hindu rites and ceremonies at ________________ on _______________________. (mention the place of marriage and the date of marriage)
  2. That the petitioner and respondent lived as husband and wife at _________________. 
  3. That the petitioner and the respondent were Hindu by religion on _____________ and the parties continued to be Hindu up to the date of filing of this petition. 
  4. That the parties to this petition after the solemnization of marriage lived together, cohabited as husband and wife. From the aforesaid wedlock, one female child was born on _________________. (mention the name and age of the child) 
  5. (From here, the main body of the petition starts, mention the grounds as stated in the Hindu Marriage Act. It is totally dependent upon the facts of the case.)
  6. There is no collusion or connivance between the petitioner and the respondent. 
  7. That there is no legal ground for this Hon’ble Court to refuse the relief and passpassing a decree for divorce.
  8. (Mention the cause of action in detail. The cause of action is the reason why the petitioner seeks relief before the court. It is mandatory to be mentioned.)
  9. That the petitioner has filed the petition in time and there is no unnecessary or improper delay in filing this petition. 
  10. That both the parties reside in __________________ and therefore this Hon’ble Court has the jurisdiction to try and pass proper orders under this case. 
  11. That the valuation of the petition for the purpose of jurisdiction is Rs. ________________ on which Court fee of Rs. _______________________ has been paid as per the Court fees Act. 

Prayer

In the light of the above facts, this Hon’ble Court may be pleased to pass:

  1. A decree for divorce passed in favor of the petitioner;
  2. Any other orders which this Hon’ble Court may be pleased to pass in the interests of justice and equity.

Place:

Date:

Petitioner

Advocate of the petitioner

Affidavit

IN THE COURT OF ______________________

IN THE MATTER OF 

Name of the petitioner, age, occupation, address

Petitioner

//Versus//

Name of the respondent, age, occupation, address

Affidavit of __________________, son of or daughter of ______________, resident of _________________.

I, the abovementioned deponent, do hereby solemnly affirm and declare as under:

  1. That the marriage between the deponent and the respondent was solemnized according to Hindu rites, customs and ceremonies at ________________.
  2. That the present petition is not presented or prosecuted in collusion with the respondent. 

Deponent

Verification

The abovementioned petitioner states on solemn affirmation that the contents of paragraphs _______ to _________ of the petition are true to the petitioner’s knowledge while those mentioned in paragraphs _________ to _____________ are true on the basis of the information received and believed to be true. The last paragraph is prayer to this Hon’ble Court.

Verified at _______________on the ___________ day of ________. 

Deponent

Conclusion

Matrimonial matters in India are generally sensitive. It is believed that the stronger the bond between a family, the stronger is the will of the society to stay together. Frequent divorces and marital troubles result in the breakdown of families and the loss of family values, which takes a toll on the mental as well as physical health of the children born out of such broken marriage. Therefore, it is vital for the courts to take a balanced and sensitized approach to matrimonial disputes. 


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