RULES OF VARIOUS HIGH COURTS UNDER HINDU MARRIAGE ACT, 1955 PART IV

4. BOMBAY HIGH COURT HINDU MARRIAGE AND DIVORCE RULES, 1955

1. Short title and commencement.—(i) These rules may be called the Hindu Marriage and Divorce Rules, 1955.¹

(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 of 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) and (ii) of Section 13 (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.

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 any living 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 on

                                                   the ground that his wife is living in adultery with any

                  person or persons or for judicial separation on the ground

that his wife has committed adultery with any person or

persons,² 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 on

        the ground that her husband is living in adultery with

        any

1.    Vide Bombay High Court Notification No.P0102/55, dated 12th November, 1955.

2.    Now in a petition for either remedy on the ground of extramarital sex.

woman or women or for judicial separation, on the ground that her husband has committed adultery with any woman or women¹, 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 any, 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.

(fl   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 is living in adultery or has committed adultery with any person¹, the petitioner may, however, apply to the Court by an application supported by an affidavit for leave to dispense 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 a prostitute and that the petitioner knows of no person with whom adultery has been committed;

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

(b) In every petition under Section 13 (2) (i) 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).

1.    Now in a petition for either remedy on the ground of extramarital sex.

8. Petitions on behalf of lunatics.—When a husband or a wife is a lunatic or an idiot, 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 materials as it may require, record its approval of the representation-of the minor by the next friend or pass such other orders as it may deem fit.

10. Application fo’r 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.

(if) 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 respondent in the petition.

11. Service of copy of application for and other granting leave on the respondents and procedure after service.—(i) When the Court grants leave under the proceeding 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 propriety 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. Notice.—The Court shall issue notice to the respondent and correspondent, if any. 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 copy 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 together 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 of the petitioner’s adultery, cruetly or desertion, the written statement shall state the particulars, of such adultery, cruelty or ” desertion.

15. Intervener’s petition.—(i) Unless the Court for good cause shown otherwise directs where in the petition or in the written statement the husband or the wife is charged with adultery with a named person, a certified copy of pleading or material portion thereof containing such charge shall 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 intervenue in the cause.

(ii) (a) Whenever the Court finds that an intervenor had  no sufficient grounds for intervening, it may order the intervenor to pay the whole or any part of the costs occasioned by the application to intervene.

(b) When the Court finds that the charge or allegation of adultery against the intervenor 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 intervenor to pay to the intervenor the whole or any of the costs 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 intervenor.

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 verify the respective cases in whole or in part by affidavit, so that the deponent in every such affidavit shall on the application of the opposite party, or by direction of the Court, 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.—Wherever in any petition presented by a husband the alleged adulterer has been made a co-respondent and the adultery has been established, the Court may order the co-respondent to pay the whole or any part of the costs of 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 the adultery living apart from het husband and leading the life of a prostitute, or

(ii)   if the co-respondent had not at the time of adultery, reason to believe the respondent to be a married person.

19. Application for alimony and maintenance.—(a) Every application for maintenance pendents lite permanent alimony and maintenance, or for custody, maintenance and education expenses of minor children, shall state the average monthly incomes of the petitioner and the respondents the sources of these incomes, particulars of other movable property owned by them, the number of dependants of the petitioner and the respondent and the names and ages of such dependants.

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

20. Taxation of costs.—The award of costs shall be within the discretion of the Court.

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 a certified copy of every decree for divorce or nullity of 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 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.