Matrimonial Law | Updated Specimen

Affidavit for Divorce Petition under Section 13(1) of the Hindu Marriage Act, 1955

A clean specimen affidavit for use with a contested divorce petition under Section 13(1) HMA. The affidavit must be adapted to the actual statutory ground, facts of the marriage, pleadings and the rules of the Family Court or other court having jurisdiction.

Contents

Section 13(1) HMA: contested divorce

Section 13(1) of the Hindu Marriage Act, 1955 permits either spouse to seek dissolution of the marriage by a decree of divorce on one or more statutory grounds. A petition should plead the particular ground relied upon and the material facts that constitute that ground.

Important 2019 change: leprosy is no longer a ground for divorce under Section 13(1). Clause (iv) was omitted by the Personal Laws (Amendment) Act, 2019 with effect from 1 March 2019.

Section 13(1A) is separate from Section 13(1). It allows either party to seek divorce where there has been no resumption of cohabitation for at least one year after a decree of judicial separation, or no restitution of conjugal rights for at least one year after a decree for restitution of conjugal rights. Those grounds should not be inserted into a Section 13(1) affidavit unless the petition itself relies on Section 13(1A).

Current principal grounds under Section 13(1)

Adultery - Section 13(1)(i)Voluntary sexual intercourse by the respondent with a person other than the spouse after solemnization of the marriage.
Cruelty - Section 13(1)(ia)Treatment of the petitioner with cruelty after solemnization of the marriage.
Desertion - Section 13(1)(ib)Desertion for a continuous period of not less than two years immediately preceding presentation of the petition, subject to the statutory explanation.
Conversion - Section 13(1)(ii)The respondent has ceased to be a Hindu by conversion to another religion.
Mental disorder - Section 13(1)(iii)The statutory mental-disorder ground applies only where the conditions and degree specified in the provision are satisfied.
Communicable venereal disease - Section 13(1)(v)The ground remains subject to the exact statutory wording and proof required by law.
Renunciation - Section 13(1)(vi)The respondent has renounced the world by entering a religious order.
Presumption of death - Section 13(1)(vii)The respondent has not been heard of as alive for seven years or more by persons who would naturally have heard of the respondent if alive.
Drafting caution: do not copy every ground into a petition or affidavit. Retain only the ground or grounds actually relied upon and plead the supporting facts with dates and particulars as required by the applicable law and court rules.

Jurisdiction, contents and verification

Section 19 specifies the courts in which a Hindu Marriage Act petition may be presented. Relevant connecting factors include the place where the marriage was solemnized, where the respondent resides, where the parties last resided together and, where the wife is the petitioner, where she resides on the date of presentation, subject to the complete statutory provision.

Section 20 requires the petition to state distinctly, as far as the nature of the case permits, the facts on which relief is founded and-except for a petition under Section 11-to state that there is no collusion between the parties. It also requires verification in the manner required by law for verification of plaints. Section 21 applies the Code of Civil Procedure, 1908 to proceedings under the Act, subject to the Act and applicable High Court rules.

Section 22 requires proceedings under the Hindu Marriage Act to be conducted in camera and restricts publication. For that reason, a public-facing specimen should never include real names, addresses, intimate allegations, medical information or identifying facts from an actual matrimonial dispute.

Specimen Affidavit in Support of a Section 13(1) Divorce Petition

IN THE FAMILY COURT / COURT OF THE DISTRICT JUDGE AT __________________

MATRIMONIAL PETITION NO. ________ OF 20____

IN THE MATTER OF:

______________________________PETITIONER

VERSUS

______________________________RESPONDENT

AFFIDAVIT IN SUPPORT OF PETITION UNDER SECTION 13(1) OF THE HINDU MARRIAGE ACT, 1955

I,  , son/daughter of  , aged about   years, occupation  , presently residing at  , the Petitioner above named, do hereby solemnly affirm and state as follows:

1. I am the Petitioner in the accompanying petition under Section 13(1)(____) of the Hindu Marriage Act, 1955 and am fully acquainted with the facts and circumstances of the case. I am competent to swear this affidavit.

2. I have read and understood the accompanying petition. The statements of fact made therein are true and correct to my knowledge, except those specifically stated to be based on information or records, which I believe to be true.

3. The marriage between the Petitioner and the Respondent was solemnized on   at   according to Hindu rites and ceremonies / in the manner stated in the petition.

4. The petition seeks a decree of divorce on the ground of   under Section 13(1)(____) of the Hindu Marriage Act, 1955. The material facts constituting the said ground, including relevant dates and incidents, are set out in paragraphs ____ to ____ of the accompanying petition.

5. The petition is not presented or prosecuted in collusion with the Respondent.

6. To the extent applicable to the relief claimed, I state that I am not seeking to take advantage of my own wrong and that the statutory conditions relevant to the grant of relief have been pleaded in the accompanying petition.

7. The petition has been presented before the Court having jurisdiction under Section 19 of the Hindu Marriage Act, 1955 on the basis stated in paragraph ____ of the petition.

8. The documents relied upon by me are referred to in and filed with the petition in accordance with the applicable procedural and court rules.

9. I respectfully pray that this Hon'ble Court may grant the reliefs sought in the accompanying petition in accordance with law.

DEPONENT

VERIFICATION

I, the above-named deponent, verify that the contents of paragraphs 1 to ____ are true to my personal knowledge; paragraphs ____ to ____ are based on information and/or records which I believe to be true; and nothing material has been concealed therefrom.

Verified at __________________ on this ____ day of __________________, 20____.

DEPONENT

Attestation: The affidavit should be sworn/affirmed and attested in the manner required by the applicable court rules and law. Local Family Court/High Court rules may prescribe additional forms, statements, affidavits or financial disclosures.

Filing and drafting notes

This affidavit is a general specimen and should be matched precisely to the divorce petition. For a cruelty petition, for example, the affidavit should not retain paragraphs meant for desertion, adultery or Section 13(1A). The facts should be pleaded in a restrained, relevant and chronological manner rather than by using generic allegations.

A divorce petition is ordinarily subject not only to Sections 13 and 20 but also to the jurisdiction provision in Section 19, the restriction in Section 14 against presenting an ordinary divorce petition within one year of marriage (subject to the statutory exception), Section 22 privacy requirements and Section 23 conditions for granting matrimonial relief. Applicable Family Court, High Court and e-filing rules should also be checked before filing.