In Indian Family Courts, particularly in Kerala, different reliefs require the filing of separate Original Petitions (OP) for Divorce, Maintenance, Return of Gold, and Child Custody. This is because these reliefs are governed by distinct statutes and specific procedural rules.
While courts often “tag” cases or conduct joint trials for connected matters, parties must generally file the following as separate Original Petitions:
1. Dissolution of Marriage (Divorce)
- Purpose: To legally terminate the marital bond.
- Procedure: Filed as an OP for Divorce under specific personal laws, such as Section 13 of the Hindu Marriage Act or Section 10 of the Divorce Act (for Christians).
- Note: A prayer for permanent alimony can be included within the divorce petition; however, many practitioners file it separately if the divorce is heavily contested.
2. Recovery of Money and Gold (Return of Property)
- Purpose: To recover “Stridhan,” gold ornaments, or money entrusted to the husband or his family.
- Procedure: Typically filed as a separate OP for Recovery of Money and Ornaments.
- Legal Standing: The Kerala High Court has clarified that child custody relief cannot be granted within a suit filed solely for the return of property or gold.
3. Child Custody and Guardianship
- Purpose: To determine the legal and physical custody of minor children.
- Procedure: This must be filed as a separate OP (G&W) under the Guardians and Wards Act, 1890.
- Interim Relief: While the main custody case is pending, a party can file an Interim Application (IA) for temporary visitation or interim custody.
4. Maintenance (Past and Future)
- Purpose: To secure financial support for the spouse and children.
- Procedure: Maintenance can be sought in two ways:
- Civil OP: Filed in Family Court for “Past and Future” maintenance.
- Criminal MC: Filed under Section 144 of the BNSS (formerly Section 125 CrPC) for a faster, summary procedure.
- Note: While interim maintenance (Section 24 HMA) can be sought within a divorce petition, a claim for long-term or “past” maintenance is usually a standalone proceeding.
Types of Matrimonial Cases in Tabular form
| Relief Sought | Primary Statute | Case Type |
|---|---|---|
| Divorce | Hindu Marriage Act / Divorce Act | OP (Divorce) |
| Gold / Money | Family Courts Act / Civil Procedure Code | OP (Recovery) |
| Child Custody | Guardians and Wards Act | OP (G&W) |
| Maintenance | BNSS 144 (formerly CrPC 125) / Personal Laws | MC or OP (Maintenance) |
The Practice of “Tagging” Cases
Even though these matters are filed as separate Original Petitions with distinct case numbers, a lawyer can request the court to “tag” the cases.
This ensures they are heard by the same Judge concurrently, preventing conflicting orders and allowing for a consolidated taking of evidence, in a Joint Trial.
