[1]RULES TO REGULATE PROCEEDINGS UNDER THE SPECIAL MARRIAGE ACT, 1954

PREAMBLE

In exercise of the powers conferred by Section 41 of the Special Marriage Act, 1954 (Central Act 43 of 1954), the High Court of Karnataka at Bangalore do hereby make the following rules to regulate the proceedings under the said Act and are published for general information.

Rule 1. Form of proceedings.-

The following proceedings under the Act shall be initiated by Original petitions which will be numbered as Miscellaneous petitions.-

(i)       under Section 22 for the Restitution of Conjugal Rights;

(ii)      under sub-section (1) of Section 23 for Judicial Separation;

(iii)     under sub-section (2) of Section 23 for rescinding a decree for Judicial Separation;

(iv)    under sub-section (1) of Section 24 for declaring a Marriage null and void;

(v)      under sub-section (2) of Section 24 for declaring of the Registration of a marriage of no effect;

(vi)    under Section 25 for annulment of a marriage by a decree of nullity;

(vii)   under Section 27 for divorce;

(viii)  under Section 28 for divorce by mutual consent;

(ix)    under Section 38 to make, revoke, suspend, or vary an order or provision regarding the custody, maintenance or education of minor children.

Rule 2.

Every other proceeding subsequent to the petition shall be initiated by an interlocutory application.

Rule 3.

Every petition, application, affidavit, decree or order under the Act shall be headed by a cause title in Form I and shall set forth the provision of the Act or of these rules under which it is made.

Rule 4. Contents of petition.-

(1)     Every petition shall state.-

(i)       the place and the date of marriage, the names of the parties and their occupation, the place and address where the parties reside or last resided together within the jurisdiction of that Court;

(ii)      the names of children, if any, of the marriage together with their dates of birth or ages;

(iii)     if prior to the date of petition there has been any proceeding under the Act between the parties to the petition, the full-particulars thereof;

(iv)    if the petition is for restitution of Conjugal Rights, the date on or from which and the circumstances under which the respondent withdrew from or terminated conjugal relationship with the petitioner;

(v)      if the petition is for Judicial Separation or divorce the matrimonial offence alleged or other grounds upon which the relief is sought, together with full particulars thereof so far as such particulars are known to the petitioner; viz.,-

(a)      if in a base of alleged desertion the date and the circumstances under which it began;

(b)      if in a case of presumption of death, the last place where the parties lived together and the date when and the place where the respondent was last seen or heard of as alive, and the steps; if any, taken to ascertain his whereabouts;

(c)      if in a case of cruelty or adultery, full particulars of the date and place and the circumstances under which such acts of cruelty or adultery were committed, including the name, place or residence of the person or persons committing adultery as could be ascertained;

(d)      if in a case of incurable unsoundness of mind, or leprosy or venereal disease, the duration of such unsoundness of mind or ailment, the nature and period of curative steps taken, with the name and address of the person who treated such unsoundness of mind, or ailment;

(e)      if in a case of a decree for the declaration of the nullity of the marriage on the grounds specified in columns (ii) and (iii) of Section 25 of the Act, the time when such facts were discovered, and whether or not marital intercourse took place with the consent of the petitioner after the discovery of the said facts.

(2)     The petition shall set out at the end the relief or reliefs sought including any claim for.-

(a)      damages against the co-respondent;

(b)      custody, care and maintenance of children;

(c)      permanent alimony and maintenance; and

(d)      costs.

Where the relief is sought under clause (c) above, the petitioner shall specify the capital value of the husband's property, the annual earnings and other particulars regarding his financial resources.

Rule 5.

An application under the proviso to Section 29 of the Act for leave to present a petition for divorce before three years have passed from the date marriage, shall be supported by an affidavit setting forth the circumstances relief on as constituting exceptional hardship to the petitioner or exceptional depravity on the part of the respondent,

Rule 6.

Every petition admitted shall be given a distinctive serial number and all subsequent proceedings on the petition shall bear that number.

Rule 7.

The petitioner, shall along with every petition furnish a copy or copies thereof for service on the respondent or co-respondent as the case may be, together with the fee prescribed under the Mysore Court Fee Regulation for service of notices.

Rule 8.

(i)       Notice of the petition shall be in Form 2 for settlement of issues and shall require the respondent and the co-respondent, if any, to enter appearance in person or pleader and file a written statement not less than seven days before the day fixed in the notice.

(ii)      The notice together with the copy of the petition shall be served on the respondent and the co-respondent, if any, in the manner prescribed for the service of summons in suits under Order V of the Code of Civil Procedure.

Rule 9. Co-respondent.-

Where the husband's petition alleges adultery on the part of the respondent, the alleged adulterer shall, if he is living, be made a co-respondent in the petition:

Provided, however, that in case the adulterer's name, identity or whereabouts are unknown to the petitioner in spite of reasonable enquiries made, and the Court is satisfied that it is just and expedient to do so, it shall on the application of the petitioner (supported by an affidavit), dispense with the naming of the co-respondent.

Rule 10. Intervention.-

(i)       Any person other than the party to the petition seeking to show-cause against granting the relief prayed for in the petition shall apply to the Court for leave to intervene. Every such application shall be supported by an affidavit setting forth the fact on the basis of which leave to intervene is prayed for;

(ii)      Notice of the application together with the copy of the affidavit shall be served on all parties who shall be at liberty to file counter-affidavits;

(iii)     If, after hearing all parties the Court grants leave, the intervener may take part in the trial subject to such terms and conditions as the Court may deem fit to impose;

(iv)    If the Court is satisfied that the intervention was made without sufficient cause it may order the applicant to pay the whole or part of the costs occasioned by the intervention.

Rule 11. Damages and Costs against Co-respondent.-

(i)       Where damages are claimed, the Court shall assess the damages and direct in what manner the damages, if any, awarded shall be paid or applied.

(ii)      The Court may also direct that the whole or any part of the costs of the petition shall be paid by the co-respondent.

(iii)     The Court may assess damages and make an order for payment thereof or of costs notwithstanding that the respondent or the co-respondent or both of them have remained ex parte.

Rule 12.

The Court shall dismiss the petition for divorce by mutual consent, if no motion is made by both the parties to the petition within the time prescribed in sub-section (2) of Section 28 of the Act.

Rule 13. Appeals.-

(1)     An appeal shall lie to the District Court against the decision of the Marriage Officer under Section 8 or Section 17 of the Act which shall be in the form of a memorandum and shall be accompanied by a certified Copy of the following documents.-

(i)       the notice of the intended marriage;

(ii)      the objection recorded by the Marriage Officer; and

(iii)     the decision of the Marriage Officer on the objection.

(2)     Every Memorandum of appeal shall be accompanied by as many copies of the memorandum of appeal as there are respondents therein, to be served on them together with the process-fee prescribed under the Court Fees Act for service of notice of appeal on the respondents.

(3)     The District Court may call for the records of enquiry from the Marriage Officer.

(4)     The District Judge shall have powers to take such additional evidence . as he may consider necessary in the interest of justice.

Rule 14. Competence of husband and wife to be witnesses.-

The husband and wife respectively shall be competent and compellable witnesses to give evidence of or relating to cruelty, desertion or divorce.

Rule 15.

(1)     Appeals to the High Court from the decrees and orders of the District Court shall be governed by the rules of this High Court in respect of appeals as far as they may be applicable.

(2)     In every such appeal notice shall be issued to the co-respondent and to the intervener, if any.