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Marriage and Divorce Law
Pleading
Matrimonial disputes are purely of civil nature and the remedy is
availably in civil courts subject to the procedure founded in the
Civil Procedure Code, 1908. No relief is available unless
necessary facts and documents are disclosed in the pleadings.
However, Court can take note of events, which occurred since the
institution of the petition. To serve the ends of justice,
necessary implications of assertions in the pleadings can be drawn
for the rules as procedures are intended to be a handmaid to the
administration of justice. A party is not refused relief just
because of some bonafide mistake, negligence, in advertence or
even infraction of the rules of procedure but the court can not
grant such relief’s which are not claimed in the pleadings.
For Matrimonial disputes, remedies are available in the District
Judge’s Court. District judge’s Court is principal Civil Court of
original jurisdiction. It includes Courts of Additional District
Judges. The District Judge has exclusive jurisdiction to try
petition under the Hindu Marriage Act, 1955. The disputes are
presented in form of petition and not by way of a suit. The Hindu
Marriage Act, 1955 forfeits the jurisdiction of ordinary Civil
Courts with respect of matters dealt with by the Act.
The Hindu Marriage Act 1955 applies to all Hindus, Budhist, Jains,
and Sikhs irrespective of the question whether they are domiciled
in India or not. The Act is not applicable on Monogamous marriage.
Similarly, the Act applies to all Hindu communities irrespective
of caste, creed or religion. The Hindu Marriage Act, 1955 governs
only the religious marriages, though the concept of religious
marriage under the Act is that all the marriage are dissolved by
judicial authorities.
Validity of Marriage depends upon the observation of customary
rites and ceremonies followed by the caste or community to which
the parties belong. There is a presumption that proper ceremonies
have been performed under the Hindu Marriage Act, 1955. The
essential ceremonies for a valid marriage are invocation before
sacred fire and saptapadi (taking of seven steps by the groom and
bride jointly before the scared fire) unless there is custom
contrary to this. Where marriage is proved, the presumption arises
that proper ceremonies have been performed and marriage is legal.
Presumption of marriage can be rebutted by strong and convincing
evidence.
The Civil Procedure Code is applicable on petition proceedings
concerning matrimonial disputes. It is only by practice and
experiences that lawyer acquire knowledge in drafting, in
accordance with the codified rules of pleadings. The Family Courts
Act, 1984 does not give concern to the right to legal assistance
hence appearance of lawyers is not encouraged. The ‘Act’ is not
anxious for the technicalities of language or set legal phrases.
Many of these legal expressions may be ignored in these days to
simplify the procedure. Their absence is not rendered defective in
any case if they are otherwise good and pleadings were framed in
compliance with the prescribed provisions of law. With the bar
imposed on participation by lawyers, the clerks and professional
writers, who are deficient in general education and knowledge of
law, participate in the matrimonial proceedings in garb of social
workers and organizations and dominate in the proceedings. One can
see that matrimonial pleadings are drafted in the crude and
happzardous manner, with repetition and statement of irrelevant
and inconsistent facts, and unnecessary case law of Supreme Court
and various High Courts are cited with evidence and arguments,
while material facts are omitted. This is the order of the day in
Family Courts. Probably in coming days the Mahila Courts will
dispense with Order 6 Rule 2 and Order 8 Rule 2, which gives
specific guide lines about pleadings.
Order 6 Rule 2 and Order 8 Rule 2
(1) The written statement must contain and contain only a
concise statement of facts on which defendant relies for his
defence but not the evidence. It must raise all matters which show
the suit not to be maintainable, all such grounds of defence as,
if not raised, would be likely to take the opposite party by
surprise, or would raise issues of facts not arising out of the
pleadings i.e. fraud, limitation, or facts showing illegality.
All points of law or facts must be particularized and they
should be stated specifically and clearly.
The Court is bound to take notice of any ground of illegality
appearing on facts stated in pleadings or otherwise stated, even
though not pleaded. No question of facts can be raised at a later
stage unless it is stated in pleadings. Full particulars of facts
alleging fraud, limitation or illegality, etc. should be given
otherwise no notice will be taken of general allegations,
limitation should be pleaded in all cases, but particularly when
the bar is alleged under some special law, else the Court would
refuse to go in to the matter.
However, if, the question of limitation is purely one of law
capable of later mining of the facts admitted or proved, the Court
will raise it suo moto.
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