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How to File and Draft a Divorce Petition?

How to File and Draft a Divorce Petition

The divorce/dissolution petition is filed in court by a spouse who seeks a divorce. The filing spouse is called the “complaint” in some states, otherwise to be called the petitioner. The divorce petition is the formal application before the honorable court informing the court of the desire to end the marriage and the initiation of the divorce process.

Understanding Divorce Laws in India:

Before diving into the specifics of filing a divorce petition, it’s important to familiarize yourself with the divorce laws in India. Divorce in India is governed by various personal laws, such as the Hindu Marriage Act, the Muslim Personal Law (Shariat) Application Act, the Special Marriage Act, and the Indian Divorce Act, depending on the religious affiliation of the individuals seeking divorce.

Step 1: Determine the Applicable Law:

Identify the personal law applicable to your marriage. This will depend on your religion and the type of marriage you entered into (e.g., Hindu, Muslim, Christian, etc.).

Step 2: Grounds for Divorce:

Understand the grounds for divorce recognized by the applicable personal law. Common grounds include cruelty, adultery, and desertion, conversion to another religion, mental illness, and irretrievable breakdown of the marriage.

Step 3: Consult an Attorney:

Seek the assistance of an experienced family law attorney. They will guide you through the divorce process, ensure compliance with legal requirements, and help you draft a comprehensive divorce petition.

Step 4: Drafting the Divorce Petition:

The divorce petition is a crucial document that outlines the details of your case. Here are key points to consider while drafting the petition:

The Format of Divorce Petition:

Follow the prescribed format for the divorce petition as per the rules of the applicable court. Ensure that you include the necessary headings, sections, and information required.

Place of Divorce Petition to be filed:

File the divorce petition in the appropriate family court having jurisdiction over your case. The jurisdiction is generally determined based on factors such as

  1. A place where marriage has been solemnized.
  2. Place where both husband and wife last resided together.
  3. The place where the wife is residing at the time of filing of the Petition before the honorable court.

How to Draft a Divorce Petition:

  1. Court: Clearly mention the name of the court where the petition is being filed.
  2. Matter: State the matter as a “Petition for Divorce” or “Dissolution of Marriage.”
  3. In the matter of dissolution of marriage under Section 13 of the Hindu Marriage Act, 1956, or/and
  4. In the matter of Divorce of the Petitioner with the Respondent on grounds of cruelty or/and
  5. In the matter of the Family Courts Act, 19541, or/and.
  6. Details of parties to the application: Include the names, addresses, and relevant contact information of both parties involved in the divorce.
  7. Facts of the matter: Provide a concise and accurate account of the facts and circumstances leading to the breakdown of the marriage, including the grounds for divorce. The facts of the cases shall include following and in a given manner:
  8. Marriage details: Detail about the date, place where the marriage has been solemnized, and by the tradition followed in the marriage, say Hindu Vedic, Christian, or as the case may be. Also, attach the proof of marriage, say certificate of marriage, if that is not there then a photograph of marriage. The religion of parties to the dispute is also mentioned.
  9. Details of involved parties: Provide the reason for the dispute, it can be started with the time duration they lived together and cohabited and so on, also detail about the birth of child if any out of wedlock or adopted or such any other manner related to the concerned parties and also detail the age of child, what is the present situation, like who is maintain the child living costs and such other responsibilities.
  10. Dispute details: Detail about the actual reasons which made the complainant /petitioner approach the court say ill-treatment, and the period of such ill-treatment, physically assault, prolongers of such behavior, what made the petitioner not to take resort to his/her legal rights, usually the Petitioner does not complain and underwent such ill-treatment, hoping that the Defendant would see better sense.
  11. What was the triggering point which made things impossible for the petitioner/complainant to tolerate such behavior and what was the immediate action taken by the petitioner like did he/she filed any complaint to the Police Station, if yes then give details of complaint No. and attach the complaint copy?
  12. In case the petitioner /complainant got hospitalized due to such an act of the defendant, then, attach the hospitalization or such other related documents.
  13. In case of repetition of such an act by the defendant, mention that along with the evidence if possible.
  14. Basically, the petitioner is required to put up all such reasons, acts, omissions, incident,s or such cruel and violent manner of treatment made an apprehension in the mind of the Petitioner that it will be harmful and injurious for the Petitioner to continue to live with the respondent. Ultimately to mean that there exists no collusion or connivance between the Petitioner and the Respondent in filing this Petition.
  15. Alimony: If applicable, specify the details of alimony or maintenance sought, such as the amount and duration.
  16. Any other proceedings filed apart from this in this Honorable Court or in any other Court in India: Disclose any other ongoing or past legal proceedings related to the marriage or divorce in any court within India.
  17. Court fee: Pay the required court fees as per the prescribed rates for divorce petitions.
  18. Prayer: Conclude the petition with a prayer, which is a formal request to the court for the relief or remedies sought, such as the dissolution of the marriage, custody of children, alimony, and division of assets.
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One should be very clear in mind before putting up the Prayer before the court, usually, it asks for the following:

  • To grant the decree a dissolution of the said marriage between the Petitioner and the Respondent;
  • That the Petitioner be granted alimony @ Rs. _______/- per month;
  • That the Respondent be ordered and decreed to pay the costs of this Petition; and
  • Or can ask for such further and other reliefs as the nature and circumstances of the case may require.

Step 5: Filing the Divorce Petition:

  • Visit the appropriate family court as per your jurisdiction.
  • Collect the necessary forms for filing the petition. These may include the petition, affidavit, vakalatnama (authorizing your lawyer to represent you), and any additional court-specific forms.
  • Pay the required court fees and submit the documents. Ensure that you retain copies of all filed documents for your records.
  • The court will assign a case number and provide a date for the first hearing.

Step 6: Serving Notice to the Other Party:

After filing the petition, you must serve notice to the other party involved in the divorce proceedings. This can be done through registered posts, court-approved process servers, or as directed by the court.

Step 7: Attending Court Proceedings:

Attend all court hearings as scheduled and cooperate with the legal process. Be prepared to present evidence, respond to queries, and negotiate any settlements through mediation or counseling, if required.

Conclusion

Filing and drafting a divorce petition in India involves understanding the applicable personal laws, following the proper legal procedures, and seeking professional guidance. This comprehensive guide has provided you with a roadmap to navigate the divorce process effectively. Remember, every divorce case is unique, and it’s crucial to consult an experienced family law attorney to ensure compliance with Indian laws, rules, and regulations specific to your situation. With the right support and knowledge, you can navigate the complexities of divorce proceedings and work towards a fair resolution.

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FAQ

Can I file a divorce petition without the assistance of an attorney?

Yes, you have the right to file a divorce petition on your own, known as a pro se filing. However, it is highly recommended to seek the guidance of an experienced family law attorney to ensure proper compliance with the legal requirements and to navigate any potential complications.

Is it necessary to specify the grounds for divorce in the petition?

Yes, it is essential to clearly state the grounds for seeking a divorce in the petition. The grounds serve as the legal basis for the dissolution of the marriage and provide the court with the necessary information to evaluate the validity of the claim.

Can I change or amend the divorce petition after filing it?

In general, it is possible to make amendments to the divorce petition after filing; however, the process and requirements vary based on the court’s rules and the stage of the proceedings.

Can the court reject or dismiss my divorce petition?

Yes, the court has the authority to reject or dismiss a divorce petition if it does not meet the legal requirements or if there are procedural errors. It is crucial to ensure that your petition is drafted accurately, includes all necessary information, and complies with the applicable laws and court rules.

References

  1. https://doj.gov.in/family-court/

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