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DPC - Dissolution of Marriage
DPC - Dissolution of Marriage
At the outset, it is important to look at the concept of divorce under the Hindu Marriage Act,
1955.
Theories of Divorce
There are basically three theories for divorce: fault theory, mutual consent theory &
irretrievable breakdown of marriage theory.
Under the Fault theory or the offences theory or the guilt theory, marriage can be dissolved only
when either party to the marriage has committed a matrimonial offence. It is necessary to have a
guilty and an innocent party, and only the innocent party can seek the remedy of divorce.
However, the most striking feature and the drawback is that if both parties have been at fault,
there is no remedy available.
Another theory of divorce is that of mutual consent. The underlying rationale is that since two
persons can marry by their free will, they should also be allowed to move out of the relationship
of their own free will. However, critics of this theory say that this approach will promote
immorality as it will lead to hasty divorces and parties would dissolve their marriage even if
there were slight incompatibility of temperament.
The third theory relates to the irretrievable breakdown of the marriage. The breakdown of
marriage is defined as “such failure in the matrimonial relationships or such circumstances
adverse to that relationship that no reasonable probability remains for the spouses again living
together as husband & wife.” Such marriage should be dissolved with maximum fairness &
minimum bitterness, distress & humiliation.
Some of the grounds available under the Hindu Marriage Act can be said to be under the theory
of frustration by reason of specified circumstances. These include civil death, renouncement of
the world etc.
It wouldn’t be wrong to say that the Hindu Marriage Act, in its present form, accommodates all
3 theories of divorce under the framework established by Section 13 of the Act.
The Hindu Marriage Act, 1955 originally, based divorce on the fault theory, and enshrined
nine fault grounds in Section 13(1) on which either the husband or wife could sue for divorce,
and two fault grounds in Section 13(2) on which wife alone could seek the divorce.
In 1964, by an amendment, certain clauses of Section 13(1) were amended in the form of
Section 13(1A), thus recognizing two grounds of the breakdown of the marriage. The 1976
amendment Act inserted two additional fault grounds of divorce for wife & a new section 13B
for divorce by mutual consent.
Various grounds under which a decree of divorce can be obtained are as follows:
1) Adultery
2) Cruelty
3) Desertion
4) Conversion of Religion from Hinduism to any other religion
5) Insanity
6) Leprosy
7) Venereal Disease
8) Renunciation
9) Presumption of Death
Although a clear-cut ground of irretrievable breakdown of marriage has not been provided
under the Act, it would be reasonable to say that the two additional grounds mentioned under
Section 13(1-A) are indicative towards that direction. Section 13(1-A) provides that:
“Either party to a marriage, whether solemnized before or after the commencement of this Act,
may also present a petition for the dissolution of the marriage by a decree of divorce on the
ground-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for
a period of one year or upwards after the passing of a decree for judicial separation in a
proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage
for a period of one year or upward after the passing of a decree of restitution of conjugal rights
in a proceeding to which they were parties.”
Section 13(2) provides for Wife’s special grounds for divorce. They are:
1) Pre-Act Polygamous Marriage
2) Rape, Sodomy or Bestiality
(Under this clause, a divorce petition can be presented if the husband has, since the solemnization
of the marriage, been guilty of rape, sodomy or bestiality.)
3) Non-Resumption of Cohabitation After A Decree/Order of Maintenance
4) Repudiation of Marriage
Section 13-B provides for divorce by mutual consent. The requirements which have to be met to
seek divorce by mutual consent under the Hindu Marriage Act are as follows:
The parties have been living separately for a period of at least one year
MR. PETITIONER
VERSUS
MRS. RESPONDENT
PS.
Distt.
INDE
X
FILED BY
PETITIONER
THROUGH
, Advocate(s)
(Counsel for the Petitioner)
Enrolment No:
Chamber/ Office at:
New Delhi:
Dated:
IN THE COURT OF THE DISTRICT AND SESSIONS JUDGE, NEW DELHI.
H.M.A. PETITION NO. / 2014
Mr. ,
S/O ,
R/O
PETITIONER
VERSUS
Mrs. ,
D/O Shri ,
W/O ,
R/O
RESPONDENT
PS.
Distt.
2. That the status, age and the place of residence of the parties before /
at the time of marriage and at the time of filing of this Petition were /
are as follows:-
Husband Wife
Status & Age Residence Status & Residence
Age
Hindu Bachelor R/O Hindu Virgin R/O
Years 31 Years
(Approx.)
At the time of filing of petition
Husband Wife
Status & Age Residence Status & Residence
Age
Hindu Married R/O Hindu R/O
Years Marrie
(Approx.) d
Years
5. That the facts and circumstances of this case leading to the filing of
the present Petition are as under: -
6. That the marriage between the parties was without any dowry. The
Petitioner, his parents and/ or any other relative had not taken any
dowry in the marriage, in Cash or kind.
7. That the Respondent has already taken away her entire STRIDHAN,
given to the Respondent by both, the Petitioner’s side and/ or the
Respondent’s side, including jewelry, of gold and/ or silver, as also the
artificial ones, dresses, sarees. She took it away on on the prete
. She has kept her entire stridhan
items at her parents’ house at . It may however
be added and carified herein that neither my side nor her side had
given much of gold or silver jewelry. The jewelry was meager/ small
items like nose pin, etc. All the Jewelry and valuables are with the
Respondent as on the date of filing of this Petition.
8. That the marital relations between the parties have not been very
pleasant and compatible since the day of marriage till the date filing of
this Petition. The reasons for disharmony and non-compatibility are
squarely attributable to the Respondent.
9. That right from the day-one of the marriage the behavior/ attitude of
the Respondent towards the Petitioner, his mother, father, other family
members and relatives has been very insulting/ disrespectful,
quarrelsome, non-co-operative, suspicious, rude, insulting, adamant,
dominating, high tempered, aggressive, violent and suicidal. The
Respondent has given the Petitioner lots and lot of mental tension
almost every day, by her acts of commission and omission, refusing to
perform any of her matrimonial obligations. She has treated the
Petitioner with cruelty, in the following ways and manner:
I. That the Respondent would not respect anybody in the house, not
even the mother and father of the Petitioner. On the contrary, she
would quarrel and insult the Petitioner publicly every other day.
She would not spare even his mother. The former used to quarrel
with and insult the latter every now and then for no fault of the
latter. The Respondent used to talk very rudely and would insult
the aged parents of the Petitioner at the drop of the hat. That the
Respondent quarreled with the Petitioner and his mother without
any provocation.
II. That the Respondent was very whimsical. She used to break
house hold items at the drop of hat and without any provocation.
III. That due the rude and insulting behavior of the Respondent
towards the parents of the Petitioner, his Parents completely
disowned the Petitioner. They also got their act/ statement of
disowning published in a daily newspaper dated .
IV. That the Respondent was very adamant. She was hell bent on
living separately from the parents of the Petitioner. Not only that,
she demanded from the Petitioner a separate residence, clearly
specifying that the house should be near her mother’s house and
away from the house of the parents of the Petitioner.
NON-CO-OPERATIVE ATTITUDE:
SUSPICIOUS ATTITUDE:
VII. That just as if what is averred hereinabove was not enough, the
Respondent also used to torture, harass and humiliate the
Petitioner privately and publicly by alleging that he had numerous
affairs with other women. The Respondent used to level this
allegation despite the fact that she knew it very well that the
Petitioner had no such relation, the Petitioner being person of
principles and morals.
VIII. That at times, and very often, the Respondent used to threaten to
commit suicide by pulling a knife from kitchen and putting it near
her wrist. She also used to threaten on and off that she will kill the
Petitioner.
IX. That for some time now, the Respondent was scaring the
Petitioner by threatening him that she is going to get his entire
family falsely implicated in false criminal cases, for dowry demand
and domestic violence.
REFUSED TO PERFORM MATRIMONIAL OBLIGATIONS:
XI. That the Respondent talks to her mother on phone several times in
a day. The mother of the Respondent has also threatened the
petitioner of falsely implicating in false criminal Cases.
XII. That the Respondent got their child/ children admitted to school,
without consulting the Petitioner.
XIII.
XIV.
XV.
10. That the Respondent has committed the above said acts of cruelty on
the Petitioner knowingly, intentionally, willfully and deliberately.
11. That the Petitioner has sought the intervention of the parents and
relatives of the Respondent, however, they have never taken any
interest in the affairs of the parties. The Petitioner has made all efforts
and has exhausted all the avenues to bring normalcy in his married
life, however all has gone in vain.
12. That the marital relation of the parties has been damaged beyond
repair. There is no chance of any patch up between them.
Consequently, the marriage between the parties is irretrievably broken.
14. That this petition is not being presented in collision with the Respondent.
15. That no such petition was / has ever been filed by the Petitioner
against the Respondent in this Court or any other court.
16. That the Petitioner has not condoned the above said cruelties
committed by the Respondent on him.
GROUNDS
17. That the Petitioner, seeks from this Hon’ble Court the dissolution of his
marriage with the Respondent on the following grounds amongst
others:
-
19. That the above said acts of the Respondent tantamount to Cruelty,
and is very well covered under Section-13(1)(ia) of the Hindu Marriage
Act, 1955.
20. That the cause of action to file the present petition arose on
, since when the parties are living separately. It further
arose on each and every day and date prior and after ,
when the Respondent subjected the Petitioner to cruelty by her acts of
commission and omission, as mentioned in this Petition.
21. That this Hon’ble Court does have the jurisdiction in the matter to
adjudicate upon and decide the same.
22. That this Petition is being instituted within the period of limitation, as
the same is filed before this Hon’ble Court without any unnecessary
and/or improper delay.
23. That the Petition has also been filed in compliance of the provisions of
the Hindu Marriage Act, 1955. There is no legal ground or bar to the
grant of relief as prayed for in this petition.
24. That the appropriate court fee has been affixed on this Petition.
PRAYER
It is therefore most respectfully prayed that this Hon’ble Court be pleased to;
b) Pass any other and / or further order(s) in the favour of the Petitioner
and against the Respondent, which this Hon’ble Court may deem fit and
proper in the interest of Justice and fair play.
PETITIONER
THROUGH
, Advocate(s)
(Counsel for the Petitioner)
Enrolment No:
Chamber/ Office at:
New Delhi:
Dated:
PETITIONER/
DEPONENT
IN THE COURT OF THE DISTRICT AND SESSIONS JUDGE, NEW DELHI
H.M.A. PETITION NO. / 2014
MR. PETITIONER
VERSUS
MRS. RESPONDENT
5. That I affirm that I have not presented this petition in collision with the
Respondent.
6. That I affirm that I have not condoned the cruelties committed by the
Respondent on me.
DEPONENT
VERIFICATION
Verified at New Delhi on day of that the contents of the
above noted affidavit are true and correct to my knowledge and belief and
nothing material has been concealed there from.
DEPONENT
IN THE COURT OF THE DISTRICT AND SESSIONS JUDGE, NEW DELHI.
H.M.A. PETITION NO. / 2014
MR. PETITIONER
VERSUS
MRS. RESPONDENT
Mrs. ,
D/O Shri ,
W/O ,
R/O
Mrs. ,
D/O Shri ,
W/O ,
R/O
FILED BY
PETITIONER
THROUGH
, ADVOCATE,
(COUNSEL FOR THE PETITIONER)
MR. PETITIONER
VERSUS
MRS. RESPONDENT
LIST OF WITNESSES
FILED BY
PETITIONER
THROUGH
, ADVOCATE,
(COUNSEL FOR THE PETITIONER)
MR. PETITIONER
VERSUS
MRS. RESPONDENT
The Petitioner reserves her right to file additional documents with the
permission of the Hon’ble Court, if need be.
FILED BY
PETITIONER
THROUGH
, ADVOCATE,
(COUNSEL FOR THE PETITIONER)
MR. PETITIONER
VERSUS
MRS. RESPONDENT
COURT FEES
FILED BY
PETITIONER
THROUGH
, ADVOCATE,
(COUNSEL FOR THE PETITIONER)
Mr........................................................................................Petitioner No. 1
And
INDEX
3 Annexure-2(Colly)
Certified Copy of the Petition under
section 13-B (1) of The Hindu
Marriage Act, 1955, along with
Affidavits and documents and
Statements of the Petitioners
4 Copies of the other related
documents
, Advocate , Advocate
(Counsel for the Petitioner No.1) Advocates for Petitioner No. 2
Ch. No. , Ch. No. ,
Lawyers’ Chambers, Lawyers’ Chambers,
Courts, Courts,
New Delhi-110017. New Delhi-110017.
In The Court Of District & Sessions Judge, (Central) Delhi
Mr. ,
D/O Shri ,
W/O ,
R/O
And
Mrs.
,
S/O Shri ,
R/O ,
2. That the First Motion between the parties hereto came up before the
Hon’ble Court of , ADJ, Tis Hazari, Delhi and after
recording of the statements of petitioners, the same was disposed of
vide its order dated . Certified Copies of the Order dated
is Annexure-1 and the Petition for the First Motion, U/S
13-B(1), of the Hindu Marriage Act, 1955, along with Affidavits,
documents and Statements of the Petitioners No.1 & 2 are being
annexed herewith this Petition as Annexure-2 (Colly).
3. That despite the gap of 6 months between the two impugned motions,
the Petitioners hereto could not reconcile their differences and
continued to stay away from the society of each other. Hence, the
present motion.
6. That the marriage was duly consummated but no child was born from
the wedlock.
7. The parties are living separately from the company of each other since
.
8. That the Petitioners were unable to adjust with each other due to their
temperamental differences and various other reasons. They tried hard to
reconcile their differences themselves and through their parents,
relatives and friends, however, all went in vain.
9. That in this while, following Cases also got initiated by the Petitioner
No.2 against the Petitioner No.1 and his family members:-
11. That the terms and conditions of the Agreement/ Settlement dated
, with respect to the payment of money by the
Petitioner No.1 to the Petitioner No.2, are as follows:
12. That the Petitioner No.1 agreed to pay the Petitioner No.2 a sum of Rs.
/- towards full and final settlement/ satisfaction of all
her claims in five equal instalments of Rs. /- each. The first
instalment of Rs. /- were to be paid at the time of the
First Motion in the proceedings/ Petition U/S 13(B)(1) of the Hindu
Marriage Act, 1955, the second instalment of Rs. /- at
the time of the Second Motion, U/S 13(B)(2) of the Hindu Marriage Act,
1955, the third instalment of Rs . /- at the time of
withdrawal of the Case, under Section -12 of the D V Act, the fourth
instalment of Rs. /- at the time of withdrawal of the Case,
under Section-125 of the Cr.P.C., and the fifth and last instalment of Rs.
/- were to paid at the time of quashing of FIR before
this Hon’ble Court.
13. That other terms and conditions of the Agreement/ Settlement dated
do form part and parcel of this Petition, the same have
however, not been repeated herein, just to avoid the duplicity.
14. That in view of the afore stated facts, as also in compliance with the
Terms of the Settlement/ Agreement dated , the
Petitioners have therefore filed this Petition for dissolution of their
marriage by divorce with mutual consent. The expenditures incurred on
filing of this Divorce Petition, including the Court fee etc., have been
borne by Petitioner No.1.
16. That the Petitioner No.1 had already got made/ issued a Bankers
Cheque No. , dated , issued by the Bank, namely,
, for a sum of Rs.
(Rs. Only), in favour of .
The Copy of the Demand Draft/ Pay Order is annexed here with this
Petition. The Petitioner No.1 undertakes to hand over to the Petitioner
No.2 the original Demand Draft/ Pay Order at the time of recording of
statement in First Motion of the Divorce Petition, under section 13-B (2)
of the Hindu Marriage Act, 1955.
17. That the parties to the Petition assure and undertake not to file or initiate
henceforth any civil or criminal or any other form of legal proceeding/s
against each other or their respective family members.
18. That the consent of the parties hereto, for moving the present petition,
has not been obtained by force, fraud or pressure, undue influence,
coercion from any quarter whatsoever and the petitioners have signed
the present petition and accompanying affidavits of their own volition.
19. That there is no collusion between petitioners in filing the present petition.
20. That from henceforth, the Petitioners hereto have been left with no
mutual obligation against each other.
23. That there is no legal bar against seeking and granting the relief, as
prayed for in this Petition.
24. That the residence of the Petitioner No. 1 and/ or 2 falls within the
territorial jurisdiction of this Hon'ble Court and accordingly, this Hon'ble
Court has got the territorial jurisdiction to entertain the present Petition.
25. That the proper and requisite court fee has been affixed on the petition.
PRAYER
In view of the aforementioned facts and circumstances, it is therefore
most respectfully prayed that this Hon’ble Court may be pleased to:-
ii. Pass any other or further order(s) which this Hon’ble Court may deem fit
and proper in the facts and circumstances of the case, in the interest of
justice.
Through
, Advocate , Advocate
(Counsel for the Petitioner No.1) Advocates for Petitioner No. 2
Ch. No. , Ch. No. ,
Lawyers’ Chambers, Lawyers’ Chambers,
Courts, Courts,
New Delhi-110017. New Delhi-110017.
New Delhi
Dated
Verification: -
Verified, on solemn affirmation, on this day of , 2014, in New
Delhi that the contents of paragraph Nos. 1 to of the above petition are true
and correct to the best of our knowledge & belief and those of paragraphs
Nos. to , on the basis of legal advice received and the last paragraph is
prayer to this Hon’ble Court.
Mr........................................................................................Petitioner No. 1
And
AFFIDAVIT
I, , S/O Shri
, R/O
, aged about years, do hereby solemnly affirm and declare as under:
4. That I have given my consent out of my own free will, choice and volition
and the same has not been obtained either by force, fraud, pressure,
undue influence or coercion from any quarter whatsoever.
5. That the accompanying Petition has been jointly drafted by our respective
counsels under the joint instructions of Petitioner No.2 and mine and I
further state that its contents are true and correct to the best of my
knowledge, belief and the legal advice received.
Deponent
Verification: -
Verified, on solemn affirmation, on this _ day of , 2014, in New
Delhi that the contents of the above affidavit are true and correct to the best of
my knowledge and belief, no part of it is false and nothing material has been
concealed there from.
Deponent
In The Court Of District & Sessions Judge (Central), Saket, New
Mr........................................................................................Petitioner No. 1
And
AFFIDAVIT
I, , D/O Shri
, R/O
, aged about years, do hereby solemnly affirm and declare as under:
4. That I have given my consent out of my own free will, choice and volition
and the same has not been obtained either by force, fraud, pressure,
undue influence or coercion from any quarter whatsoever.
5. That the accompanying Petition has been jointly drafted by our respective
counsels under the joint instructions of Petitioner No.1 and mine and I
further state that its contents are true and correct to the best of my
knowledge, belief and the legal advice received.
Deponent
Verification: -
Verified, on solemn affirmation, on this day of , 2014, in
New Delhi that the contents of the above affidavit are true and correct to the
best of my knowledge and belief, no part of it is false and nothing material
has been concealed there from.
Deponent