Drafting of Plaint in Family Matters — Divorce, Custody, Maintenance →

A family-law petition is not an ordinary money suit. It carries the emotional and constitutional weight of a marriage, the future of a child, and a dependant's right to survive — yet it is still governed by the same iron discipline of pleading that controls every plaint. The draftsman who treats a divorce petition as a form-filling exercise discovers, often too late, that an un-pleaded cruelty cannot be proved, an un-particularised act of desertion fails for vagueness, and an un-disclosed income invites a fatal adverse inference. This note explains how to draft the three workhorse family pleadings — the divorce petition, the custody petition and the maintenance application — anchoring each in the bare provisions of the Hindu Marriage Act, 1955, the Family Courts Act, 1984, the Code of Civil Procedure, 1908 and Section 125 of the Code of Criminal Procedure, and in the Supreme Court authorities every aspirant must be able to cite. It builds on the general drafting discipline covered in our fundamental rules of pleading and the structural skeleton set out in plaint structure, verification and annexures.

Why Family Pleadings Are a Special Species of Plaint

Although a divorce or custody petition is, in form, a plaint presented to a court, it differs from a commercial suit in three structural ways that the draftsman must internalise. First, the cause of action is not a single transaction but a course of conduct — cruelty, desertion or adultery unfolds over months or years, so the pleading must narrate a chronology rather than a discrete event. Second, the reliefs are status-altering: a decree of divorce changes a person's marital status erga omnes, custody determines who controls a child's upbringing, and maintenance creates a recurring statutory liability. Third, in matters heard by a Family Court the procedure is deliberately de-formalised. Section 10 of the Family Courts Act, 1984 applies the Code of Civil Procedure subject to the Act, and Section 9 obliges the court to make an endeavour for settlement before proceeding — so a well-drafted family pleading should be firm on facts yet leave the door to reconciliation visibly open.

Despite this special character, the discipline is the same one a draftsman learns for any plaint: plead facts not law, plead material facts not evidence, and particularise every fact that the law treats as constitutive. The grammar of Order VI of the CPC is not suspended in the Family Court; it is merely administered with a lighter procedural touch. A petition that omits the date, place and manner of the acts relied upon will fail the test of a good pleading just as surely as a defective money claim.

Jurisdiction: The Clause You Draft First and Verify Twice

Every family petition must open by demonstrating that the chosen forum has jurisdiction, because Order VII Rule 1(f) of the CPC requires the plaint to state "the facts showing that the Court has jurisdiction". For a Hindu divorce, the governing provision is Section 19 of the Hindu Marriage Act, 1955, which permits the petition to be presented to the District Court within whose territorial limits (a) the marriage was solemnised; (b) the respondent resides at the time of presentation; (c) the parties last resided together; or, by the clause inserted by the Marriage Laws (Amendment) Act, 2003, (d) where the wife is the petitioner, the place where she is residing on the date of presentation. The 2003 insertion was a deliberate amelioration of the hardship faced by deserted wives who would otherwise have to travel to the husband's forum, and a draftsman acting for a wife should plead this limb expressly so the basis of jurisdiction is unmistakable on the face of the petition.

Where a Family Court has been established for the area, Section 8 of the Family Courts Act, 1984 ousts the jurisdiction of the ordinary district court and Section 7 confers on the Family Court the jurisdiction otherwise exercisable by a district court in matrimonial suits, custody and maintenance. The draftsman must therefore identify both the correct statute and the correct forum, and plead the jurisdictional facts — date and place of marriage, present residence of the parties, last matrimonial home — with the same care given to the substantive grounds. A jurisdictional misstatement is not a harmless slip; it exposes the petition to return under Order VII Rule 10.

Anatomy of a Divorce Petition under Section 13 HMA

A divorce petition under Section 13 of the Hindu Marriage Act, 1955 follows the universal architecture of a plaint — cause-title, body in numbered paragraphs, prayer, verification and signature — described in our note on plaint structure. The body opens with formal averments: the date, place and rites of the marriage; that the parties are Hindus and the marriage is governed by the Act; the matrimonial home and any children of the marriage. Only then does the petition reach the operative ground.

Section 13(1) furnishes the fault grounds available to either spouse — adultery under clause (i), cruelty under clause (ia), desertion for a continuous period of not less than two years under clause (ib), conversion, unsoundness of mind, virulent and incurable leprosy (since omitted by the Personal Laws (Amendment) Act, 2019), venereal disease, renunciation of the world, and presumption of death after seven years' absence — while Section 13(2) adds grounds available only to the wife and Section 13B provides for divorce by mutual consent. The draftsman must select the precise statutory clause, plead the constitutive facts of that ground, and resist the temptation to plead law or argue conclusions. To allege "the respondent treated the petitioner with cruelty" without narrating the acts is to plead a conclusion, not a fact, and such a paragraph is liable to be struck as embarrassing.

Pleading Cruelty with Particulars: From V. Bhagat to Samar Ghosh

Cruelty is the most heavily litigated ground and the one most often pleaded badly. Mental cruelty has no statutory definition, so the draftsman is guided entirely by case law. In V. Bhagat v. D. Bhagat, (1994) 1 SCC 337, the Supreme Court held that mental cruelty is conduct of such a nature that the parties cannot reasonably be expected to live together, and significantly held that reckless and false allegations made in the pleadings themselves — there, an allegation that the husband was mentally unstable — can constitute mental cruelty. The lesson for the draftsman is double-edged: cruelty may be founded on what the other side has pleaded, but one's own pleading must avoid scandalous and unproven imputations that could rebound as cruelty against the client.

The definitive catalogue came in Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, where a three-Judge Bench laid down illustrative instances of mental cruelty — sustained unjustifiable conduct causing acute mental pain, sustained reprehensible conduct, indifference and neglect, a unilateral decision to refuse intercourse or to refuse to have a child without consent, and similar categories — while cautioning that mere wear and tear of ordinary married life is not cruelty. A competent cruelty petition therefore reads as a dated, particularised chronology: each incident with its date, place, the words used and the effect on the petitioner, mapped onto the Samar Ghosh categories. Vague, rolled-up allegations spanning "the entire period of marriage" invite the respondent to demand better particulars and weaken the petition at trial.

Pleading Desertion and Adultery: Facts, Not Adjectives

Desertion under Section 13(1)(ib) requires the petitioner to plead two distinct elements for a continuous period of not less than two years immediately preceding the petition: the factum of separation and the animus deserendi — the intention to bring cohabitation permanently to an end — coupled with the absence of consent and absence of reasonable cause. The draftsman must therefore plead the date the respondent left, the circumstances of departure, the petitioner's efforts (if any) at reconciliation, and facts negating consent. A bare averment that "the respondent deserted the petitioner" pleads the legal conclusion and omits the very facts that make desertion actionable.

Adultery under Section 13(1)(i) demands even greater drafting caution. The petitioner cannot ordinarily plead the act with photographic precision, but the pleading must give the best particulars available — the identity of the alleged paramour if known, the approximate time and place, and the circumstances raising the inference — so that the respondent and any co-respondent know the case to be met. Reckless adultery allegations that cannot be substantiated may themselves found a cruelty claim by the other spouse, exactly as V. Bhagat warns. The governing principle across all grounds is the rule restated throughout our fundamental rules of pleading: plead the material facts that constitute the ground, give particulars where the law or fairness demands them, and leave evidence to the witness box.

Interim Reliefs: Pendente Lite Maintenance and Expenses

A matrimonial petition rarely stands alone; it is usually accompanied by an interlocutory application for interim relief, a subject treated in depth in our note on drafting of interlocutory applications. The principal interim relief is maintenance pendente lite and expenses of the proceedings under Section 24 of the Hindu Marriage Act, 1955. Section 24 is gender-neutral on its face — either spouse who has no independent income sufficient for support and for the necessary expenses of the proceeding may apply — though in practice a husband seeking such relief must show incapacity to earn by reason of physical or mental disability.

The drafting of a Section 24 application turns on disclosure. The applicant must plead the respondent's income and assets, the applicant's own lack of independent means, the standard of living during the marriage and the reasonable requirements for which support is sought. Conclusory pleas of penury fail; the court decides on material, and a thinly pleaded application yields a thin order. The same disclosure discipline applies, and indeed is now mandatory, under the regime in Rajnesh v. Neha discussed below.

Drafting a Custody Petition: Welfare as the Operative Plea

Custody of children incidental to a matrimonial proceeding is governed by Section 26 of the Hindu Marriage Act, 1955, which empowers the court to pass interim and final orders for custody, maintenance and education of minor children, consistently with their wishes wherever possible. A standalone guardianship and custody claim lies under the Guardians and Wards Act, 1890 read with the Hindu Minority and Guardianship Act, 1956. Whichever route the draftsman chooses, the single operative plea is the welfare of the minor.

The Supreme Court in Gaurav Nagpal v. Sumedha Nagpal, (2009) 1 SCC 42, held in unmistakable terms that in custody disputes the paramount consideration is the welfare of the child and not the legal right of either parent under any statute; statutory rights of guardianship yield to the child's best interests. The pleading must therefore be drafted around welfare-bearing facts — the child's age and sex, present custody and schooling, the emotional bonds, the financial and moral capacity of each parent, and the disruption a change of custody would cause — rather than around the petitioner's assertion of a parental "right". A custody petition framed as a contest of rights, rather than an inquiry into the child's good, mis-pitches the very issue the court must decide.

The Welfare Standard in the Pleading: Tejaswini Gaud and Beyond

The welfare principle is not a pious formula to be recited once; it is the organising logic of the entire custody pleading. In Tejaswini Gaud v. Shekhar Jagdish Prasad Tewari, (2019) 7 SCC 42, the Supreme Court reaffirmed that the welfare of the child is the paramount consideration and clarified the procedural map: while a writ of habeas corpus is maintainable to recover a child held in illegal detention, the ordinary and more appropriate remedy in contested custody lies under the Guardians and Wards Act, 1890 or the Hindu Minority and Guardianship Act, 1956, where welfare can be examined on full evidence. The draftsman must therefore choose the remedy to fit the facts — habeas corpus for plainly illegal detention, a guardianship petition for a genuine welfare contest — and plead the jurisdictional foundation accordingly.

Because Section 26 permits interim custody and variation of orders as circumstances change, the custody draftsman should plead with an eye to both the immediate interim arrangement and the eventual final order, setting out visitation proposals and the child's existing routine. A pleading that anticipates the court's welfare inquiry — addressing schooling continuity, the child's stated wishes where age-appropriate, and the access of the non-custodial parent — reads as an aid to the court rather than a partisan demand, which is precisely the register the welfare jurisdiction rewards.

Drafting a Maintenance Application under Section 125 CrPC

The most widely used maintenance remedy is Section 125 of the Code of Criminal Procedure, a secular, summary and speedy provision that entitles a wife unable to maintain herself, minor and certain major children, and indigent parents to a monthly allowance from a person who, having sufficient means, neglects or refuses to maintain them. Although housed in the criminal code, its character is essentially civil and beneficial; the Supreme Court in Vijay Kumar Prasad v. State of Bihar, (2004) 5 SCC 196, treated the proceeding as one to compel a man to perform a moral and statutory obligation and clarified the territorial reach of Section 126 — the wife and children may proceed where they reside, a facility deliberately not extended to parents.

The draftsman must plead, with particulars: the relationship entitling the claim, the respondent's sufficient means, the respondent's neglect or refusal to maintain, the claimant's inability to maintain herself, and the quantum sought with a justification grounded in the respondent's income and the claimant's reasonable needs. For a claim by a wife, the pleading should pre-empt the statutory bars in Section 125(4) — that a wife living in adultery, or who without sufficient reason refuses to live with her husband, or who lives separately by mutual consent, is disentitled — by averring the contrary where the facts permit. A maintenance pleading that ignores the disentitling provisos invites the respondent to deploy them as a complete answer.

Quantum, Disclosure and the Rajnesh v. Neha Regime

Quantum is where maintenance pleadings most often fail, because the parties trade assertion for proof — the wife exaggerating her needs and the husband concealing his income. The Supreme Court confronted this directly in Rajnesh v. Neha, (2021) 2 SCC 324, laying down a comprehensive framework to streamline maintenance across all statutes. The Court made it mandatory for both parties to file an Affidavit of Disclosure of Assets and Liabilities in a prescribed format, directed that overlapping maintenance under different enactments be adjusted to avoid duplication, and held that maintenance is ordinarily payable from the date of the application rather than the date of the order.

For the draftsman this transforms practice. A maintenance application is now incomplete without the accompanying affidavit of disclosure, and the pleading should expressly seek maintenance "from the date of application" in reliance on Rajnesh. The applicant should plead the respondent's income with the best particulars available — salary, business, property — knowing that the disclosure regime arms the court to draw an adverse inference against a party who suppresses income. A pleading that engages the Rajnesh framework on its face signals to the court that the claim is grounded in disclosure rather than guesswork.

Delay and Dignity: Drafting to Pre-empt Procedural Defeat

A maintenance claim defeated by delay is a claim defeated twice over, because the very purpose of the remedy is immediate sustenance. In Shamima Farooqui v. Shahid Khan, (2015) 5 SCC 705, the Supreme Court deprecated the protracted disposal of maintenance applications, emphasising that delay in deciding such applications defeats the object of the provision and that a wife is entitled to maintenance commensurate with the status of the husband and her own dignified survival. The case also confirms the wide reach of Section 125, the Court there sustaining maintenance for a divorced Muslim woman under the provision.

The drafting takeaway is to build urgency and dignity into the pleading itself: plead the claimant's immediate inability to meet basic needs, pray expressly for interim maintenance pending final disposal, and quantify the claim by reference to the respondent's status and standard of living rather than a bare subsistence figure. A pleading that frames maintenance as a question of dignity, supported by disclosed figures, is far harder to whittle down than one that asks only for a survival minimum.

Reliefs, Verification and Annexures in Family Pleadings

The prayer clause must track the cause of action with precision. A divorce petition prays for a decree of dissolution under the specific clause of Section 13 pleaded; a custody petition prays for custody under Section 26 with consequential visitation and maintenance for the child; a Section 125 application prays for a monthly allowance from the date of application with interim maintenance pendente lite. Each petition should close with the conventional residuary prayer for such further relief as the court deems fit, and should claim costs. A relief not pleaded cannot be granted, so the draftsman must ensure every order the client ultimately wants finds its anchor in the prayer.

Family pleadings must be verified in the manner required by Order VI Rule 15 of the CPC — distinguishing averments made on personal knowledge from those on information and belief — and, where the regime applies, supported by an affidavit of disclosure. The annexures typically include the marriage certificate or proof of marriage, photographs or proof of the ceremony, evidence of the children's birth, income documents, and the correspondence relied upon for cruelty or desertion. The mechanics of verification, supporting affidavits and the schedule of annexures are set out in full in our note on plaint structure, verification and annexures, and they apply to family petitions with the same rigour as to any other plaint.

Common Drafting Errors and How to Avoid Them

Five errors recur in family pleadings drafted by the inexperienced. The first is pleading conclusions of law — "cruelty", "desertion", "adultery" — without the constitutive facts, a defect that Samar Ghosh and V. Bhagat make fatal because cruelty is proved by particularised conduct, not by the label. The second is the rolled-up, undated chronology that spreads allegations across the whole marriage and gives the respondent nothing specific to answer. The third is suppression of income in maintenance pleadings, now actively penalised under the Rajnesh v. Neha disclosure regime. The fourth is mis-pitching a custody petition as a contest of parental rights when Gaurav Nagpal commands that welfare alone governs. The fifth is a defective jurisdiction clause that ignores Section 19 of the Hindu Marriage Act or Sections 7 and 8 of the Family Courts Act.

The cure for all five is the same discipline this site teaches across every pleading: identify the precise statutory provision, plead the material facts that constitute it, particularise where the law or fairness requires, disclose where the law mandates, and pray for exactly the relief the facts support. A draftsman who returns to first principles — surveyed in our introduction to pleading and drafting and on the pleading and drafting hub — will produce a family petition that survives a demurrer, withstands a demand for particulars, and gives the client the best possible platform at trial.