How to file Divorce Petition under Hindu Marriage Law in India – Procedure ?
You intend to file divorce petition on the grounds available under Hindu Marriage Act. First question coming in your mind is what is the procedure for doing so. Procedure is prescribed under the law itself. In case you are governed by Hindu Law, all you have to do to file divorce petition is as follows:-
Engage a lawyer of your choice:-
First and foremost thing is to engage a lawyer of your choice. Since it is very technical process and also a time consuming, it is advisable to engage a lawyer and then discuss all facts and aspects of your case with the lawyer. After taking note of all essential facts, the lawyer will cull out the grounds on which you can get divorce. A seasoned and experience lawyer has previous precedents decided by Hon’ble Supreme Court of Hon’ble High Courts in his mind and will accordingly use the same.
Drafting of Divorce Petition:-
After the case has been discussed with the lawyer, the lawyer will start drafting of case by narration of facts within the legal purview. Lawyer will draft a case in the manner that it includes all the ingredients required under the law and grounds of divorce available.
Filing of Divorce Petition:-
After the divorce petition has been filed, the same will require to be signed by the person who intends to be filed besides his counsel. Different types of proformas have been prescribed by different High Courts for filing the divorce petitions. Mostly, all the proformas are same and similar which manly required to give full details of both the parties alongwith their addresses for issuance of summons, details of date of marriage, marital status before getting married etc etc. Thereafter, the other facts are narrated and grounds of divorce are given. The divorce petition is required to be accompanied by an affidavit and certain other forms, where prescribed.
After filing of Divorce Petition:-
After the Divorce Petition is filed before the Family Court or District Judge, the same is assigned to other judge of similar designation or power or retained in the same court. It is checked for defects or deficiency if any and the same is required to be rectified.
Issuance of Summons:-
Once all the defects have been removed, then it is listed before the Ld. Judge, who will issue summons to the person against whom the petition has been filed for some actual date, usually four weeks or more, and is asked to file reply to the divorce petition.
Service of Summons:-
In case the summons are served on the other party in normal course, the other party may file reply on the very first date or seek time to file reply. In case summons are not served or are evaded, then the summons are served through other modes provided under the law, one of which is by publication in two news papers, one in vernacular and other in English which is in circulation in the area where the other party resides.
Completion of pleadings:-
In case summons have been duly served by any of mode and an appearance on behalf of the other party has been put in, then parties are allowed time to complete their pleadings, ie; to file reply and rejoinder. In case there is any application moved by any of party for alimony or maintenance pendente lite, pleadings in the same are also allowed to be completed and order passed thereon as the circumstances require.
Framing of Issues:-
After the pleadings are complete in all respect, the Ld. Court will frame issues involved or arising out of the pleadings. Once the issues to be determined by the court are determined, the parties are asked to lead their evidences to prove those issues.
Stage of Recording Evidence:-
Once the issues have been framed by the court, the petitioner is at first instance to lead its evidence by calling witnesses. On completion of evidence of the petitioner, the respondent is asked to call its witnesses. Where the other party did not chose to put in appearance, the service of summons will be deemed to be complete and an exparte decree of divorce will be passed after recording ex-parte evidence. On completion of evidence, the matter is next fixed for arguments of the parties.
Date of arguments is the final stage in the proceedings of divorce petition. Counsels for both the parties come prepared on facts as well as law. Evidence relevant to their arguments is read out before the court and previous precedents of Hon’ble Supreme Court and Hon’ble High Courts are cited in support of their evidence and submissions. On hearing of arguments, the court either pronounce the judgment then and there, which is very rare, or else reserve the same for pronouncement on the next date.
On the date fixed for judgment, the judgment is announced by the court based on its appreciation of evidence produced by both the parties as well as in the light of provision of laws and previous precedents cited by the counsels for their respective parties. In case the petitioner succeeds in proving ingredients of grounds provided under law, case may be allowed and decree passed accordingly. On the other hand, the case may be dismissed.
Provision to file Appeal:-
After the judgment has been filed by the court, the party against whom the decision has been so rendered, may chose to file an appeal before Hon’ble High Court. Hon’ble High Court will re-appreciate facts, evidenced and law and pass its judgment.
Procedure before High Court:-
An appeal is filed before High Court taking legal grounds as to how the lower court has wrongly applied law and mis-appreciated evidence. Alongwith appeal, certified copy of judgment and decree passed by the lower court is also to be annexed. High Court on first instance issued notice to the other party. Procedure for service of summons will be same as in lower court and described above. Once summons are served, other party will put in appearance. No reply is filed in the appeal. Only arguments are to be made on the basis of evidence already recorded before lower court. After hearing arguments and re-appreciation of evidence and legal position, High Court will pass an judgment.
Although procedure as described above seems on face of it to be very simple, but in courts in India, whole process is time consuming. Even in High Courts, the matters lingers on for years because of large numbers of litigations.
However, where the couple want to part their ways mutually, both of them have to file joint petition before the Family Court or any other court of competence and statements of both the parties are recorded twice in the gap of six months as to whether they want to stick to their decision to part ways. Other terms and conditions with respect to alimony or custody of children may also be spelled out in the petition. Divorce once granted on the basis of mutual consent can not be further challenged in an appeal until it is proved that the consent was obtained by fraud, inducement or coercion.