How to Petition for Divorce in the Family Court
It is very important for the Applicant to know under which Act he/she is applying to the Court.
If you are married under your personal law you have to apply under your personal law, however if you are married under your personal law, but registered under the Special Marriage Act, you have to apply under the Special Marriage Act.
The Courts do not recognize Customary Divorce unless you get your customary divorce so declared from the Family Court. You have to prove in Court that the custom is ancient, and has been prevalent in your community from times immemorial and continues to be so even today. For a customary divorce both the parties have to belong to the same community.
For women litigants there are no court fees.
At the time of filing the Petition, the Petitioner needs to annexe to his/her Petition the following:
a) Original marriage certificate, (if your marriage is not registered, then you have to file an Affidavit of marriage)
b) Wedding photo showing clearly faces of both the spouses
c) Marriage invitation card
d) Passport size photo of the Applicant.
e) Affidavit of Marriage
f) Copies of birth certificates of children if any.
The Petitioner has to give his/her full name, age, address, occupation – whether service or business or unemployed or housewife and state whether he is a citizen of India
The Petitioner has to give the full name, age, address, occupation – whether service or business or unemployed or housewife of the opposite party.
The Petitioner has to state as to how the Court has jurisdiction to try and entertain and dispose off the Petition, whether the marriage has taken place within the jurisdiction of this Court or the parties last resided together as husband or wife within the jurisdiction of this Court or the other party resides within the jurisdiction of this Court or now after the Act has been amended the Petitioner lives within the jurisdiction of this Court.
The Petitioner also has to make averments in the Petition as to whether any other cases are pending in any other courts between the same parties, as well as make an averment that there is no collusion between the two parties.
The Petitioner has to state all the facts very clearly and state the reliefs he/she is seeking. All the reliefs have to be mentioned in the body of the Plaint as well as in the prayers. In a Petition for Divorce all reliefs for Divorce, custody of children, maintenance, including residence can be claimed together.
If a husband files a Petition for Divorce, the wife can claim reliefs of maintenance and child custody in the same Petition. There is no need to file a separate Petition. In fact a wife can file a Counterclaim to the husband’s Petition wherein she can claim a Divorce and other reliefs.
After filing the Petition along with copies of the same in the Court’s office, the Petitioner is given a date for removing the objections if any. After the objections are removed the Petition is numbered and then it is allotted to a particular court and a date is given.
The Court clerk prepares the Notice and a copy of the Notice along with a copy of the Petition is served upon the opposite side i.e. the Respondent by the Bailiff of the Court. The notice can be served by Registered A.D. through the Court. Unless the notice is served upon the Respondent the matter does not proceed. Once the Bailiff submits his report of service then alone will the matter start.
This article has been written by Ketaki Jayakar, Advocate.
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