Nani Devadiga
in Family Law
Asked May 24, 2018

Best Option forward - RCR or Divorce? How to block interim maintenance?

  • 4 Answers
  • 5211 Views

We got married in Jul, 2017 My age (31) wife (30) this was an arrange marriage. We are based in Mumbai but I'm working in Chennai from last 5 years. She has younger brother and father who works in a small firm and house wife mother. Before marriage we had come to an understanding that no kids for at least 2 years meanwhile we spend good time together save money and get our own house in Chennai. In all our conversations from our engagement time till November 2017 I've always realised She's bit immatured and cannot take ANY decisions on her own and she's very introvert. She's always depended on her mother for any small decision in her life. After marriage we moved to Chennai and started having small misunderstandings She's become more dominating and tried to implement whatever her mother says. Her mother dominates her entire family nobody dares to speak against her not even her father. So she wanted her daughter(my wife) to do the same and make me dance to her tunes but I'm completely against her wishes which annoyed her and her mother. As this continued for certain time she decided to go back to her Maternal home (Mumbai) and she closed all communications with me after she reached there. My family arranged couple of meetings with her family and few well wishers to sort out these issues everybody understood that her mother is the real culprit behind all her wrong behaviour Now MY Wife is refusing to come back so I sent a normal notice through my lawyer (NOT court) to come back and lead a normal marriage life. In reply to my letter she sent a notice through her lawyer (NOT court) quoted with baseless allegations like dowry & sexual harrasment and we forcefully thrown her out from my home (all are baseless allegations) I didn't respond to her notice which has all false allegations So wanted your help on below questions 1) Sending (RCR) Restitution of Conjugal Rights (Through Court) is the best option or filing Divorce ? If I file RCR, Can she file Domestic Voilence meanwhile without any concrete proof ? 2) Will her lawyer charge any money to come to court after I file RCR ? what exact charges ? (Apprximate charges ??) 3) While RCR is going on can she ask for interim maintainence ? 4) If she denies to comeback after court counselling through RCR what are the next steps ? Any Grace period given to her ? and when can I file for divorce ? 5) If she comes back can I get an approval from court to install CCTV @ my home in Hall (to avoid future problems) ? 6) If I file for Divorce after how long she can ask for interim maintainence ? 7) If I file for Divorce and after counselling if she asks for reconcilation and she repeats same things again can I file for Divorce again 8) If she refuses for Divorce petition can I take petition back and can court order her to come back and stay with me, if yes after what time duration she's supposed to come - The reason I'm thinking of RCR is I don't want to pay interim maintainence (I can pay lumpsum / total money in the final agreement) My questions maybe confusing whether I want this marriage or not ?? But I'm decided that I don't want to stay with her any more, just to clarify whether I should go for RCR or divorce? if she & her family pleads to take her back then I may give it a thought As her family is very cunning I want to ensure my moves are more accurate and prepared for everything. We are not in talking terms since Nov 2017 & as far as I know she doesn't want to come back but if I initiate and file for divorce she may play smart. Thanking you in advnace for taking your time out and guiding me in proceeding further in my case Regards, Nani

Answers 4

File a divorce Petetion don’t divert your mind too much focus yourself on one thing whether u want to be with her or not and take decisions and be happy by 

Agree Comment 0 Agrees over 3 years ago

Legal Opinion 

1. Three essential conditions for RCR   

               Firstly Your wife must have withdrawn from the society of the other; secondly, the withdrawal must be without any reasonable reason, and thirdly, the aggrieved party applies for the restitution of conjugal rights. Once these conditions are fulfilled,  court may decree of restitution of conjugal rights to bring about cohabitation between the estranged parties.

If the aggrieved party is unable to convince the court and it founds that the petitioner is guilty then the decree of restitution of conjugal rights is not granted. An added advantage from this is that if the parties are not following the decree for cohabitation after the passing of the decree, continuously for one year, it becomes a ground for divorce under Section 13.

2. It is possible to file under DV Act  or sec.498A during the period of pending RCR . If Domestic Violence is proved before court of law then no court will give a favorable decision for your RCR

3.The Indian law on alimony or maintenance  is very clear and the prime aim behind alimony law is to provide security to spouse after separation.

                                        Maintenance case u/s 125 Cr.P.C : Your spouse can file maintenance case and court after taking into consideration the income, assets and other property of your’s and your wife will award monthly compensation. Any one can apply for under this section for maintenance irrespective of religion or caste. Application for interim maintenance need to be filled, so that interim relief can be awarded. Court may depending upon the facts of case, award interim maintenance also.

Domestic violence Act, 2005 for relief and order to live at matrimonial house(father-in laws home), your wife  can also claim for return of all items given to your wife during marriage and also for compensation and damages for the mental cruelty suffered by your wife and court has power to appoint one protection officer, who will keep check and report court during your wife's stay at father in laws home. This law applies to all irrespective of religion or caste.

Maintenance is governed by separate act for each religion:-

Sec. 24 of Hindu Marriage Act: Application under sec 24 can be made. under this section both husband/wife can apply for maintenance or alimony whereas the wife under Hindu law have additional option and can claim maintenance under Hindu Adoptions and Maintenance Act, 1956. These provision applies to Hindus only.

Law of maintenance for Christians community is governed by The Indian Divorce Act 1869. Sec 36 of the Act provides for alimony pendente lite which is very much similar to the provision of Hindu marriage act.

For Muslim Women, right of maintenance is governed by Dissolution of Muslim Marriages Act, 1939 and the Mualim Women (Protection of Rights of Divorce) Act, 1986.

NOTE: The court while deciding the alimony takes into consideration the salary, income , assets and expenditure of both husband and wife. These proof are vital in case of alimony

4.The husband has to wait for a period of one year to enforce the decree of RCR. Thus, various personal laws also hold that where there is no restitution of conjugal rights or resumption of cohabitation between the parties for a period of one year or above after the passing of the decree for restitution of conjugal rights in a proceeding to which they were parties; it can become a ground for divorce. Here it is necessary to note, that this ground is available to both parties.

5. This may not be allowed by court . Because it is against "Right to Privacy" of a person .(Court will consider this request as a strange one .)

6.If your wife has no income to survive then the court will definitely allow maintenance to her and that will be continued till her remarriage or getting of sufficient income 

7. You can .

8.After getting an RCR how can you divorce her . You  can get divorce only after filing an OP(HMA) before a family court .Then during that period if she is giving an interim application for divorce she will definitely get that . (If you are genuinely want a good relation with her you just file RCR and live with her happily)

NB:Personal Opinion:This is a typical example for how the matrimonial disputes are  going on nowadays. Within one year a lot of misunderstandings happened in your relation .You are even considering "Restitution of conjugal rights" as a weapon to fight against your wife . RCR, and counciling sessions  before a divorce decree all are meant to support the family system in our society . And not meant to play with . If there is harmony in relation, then no spouse will tend to dominate .If there is lack of care and love then only all these will happen . So think in a positive way and try to solve the problem in a harmonious way

 

Agree Comment 0 Agrees over 3 years ago

1. Three essential conditions for RCR   

               Firstly Your wife must have withdrawn from the society of the other; secondly, the withdrawal must be without any reasonable reason, and thirdly, the aggrieved party applies for the restitution of conjugal rights. Once these conditions are fulfilled,  court may decree of restitution of conjugal rights to bring about cohabitation between the estranged parties.

If the aggrieved party is unable to convince the court and it founds that the petitioner is guilty then the decree of restitution of conjugal rights is not granted. An added advantage from this is that if the parties are not following the decree for cohabitation after the passing of the decree, continuously for one year, it becomes a ground for divorce under Section 13.

2. It is possible to file under DV Act  or sec.498A during the period of pending RCR . If Domestic Violence is proved before court of law then no court will give a favorable decision for your RCR

3.The Indian law on alimony or maintenance  is very clear and the prime aim behind alimony law is to provide security to spouse after separation.

                                        Maintenance case u/s 125 Cr.P.C : Your spouse can file maintenance case and court after taking into consideration the income, assets and other property of your’s and your wife will award monthly compensation. Any one can apply for under this section for maintenance irrespective of religion or caste. Application for interim maintenance need to be filled, so that interim relief can be awarded. Court may depending upon the facts of case, award interim maintenance also.

Domestic violence Act, 2005 for relief and order to live at matrimonial house(father-in laws home), your wife  can also claim for return of all items given to your wife during marriage and also for compensation and damages for the mental cruelty suffered by your wife and court has power to appoint one protection officer, who will keep check and report court during your wife's stay at father in laws home. This law applies to all irrespective of religion or caste.

Maintenance is governed by separate act for each religion:-

Sec. 24 of Hindu Marriage Act: Application under sec 24 can be made. under this section both husband/wife can apply for maintenance or alimony whereas the wife under Hindu law have additional option and can claim maintenance under Hindu Adoptions and Maintenance Act, 1956. These provision applies to Hindus only.

 

 

Law of maintenance for Christians community is governed by The Indian Divorce Act 1869. Sec 36 of the Act provides for alimony pendente lite which is very much similar to the provision of Hindu marriage act.

 

For Muslim Women, right of maintenance is governed by Dissolution of Muslim Marriages Act, 1939 and the Mualim Women (Protection of Rights of Divorce) Act, 1986.

 

 

NOTE: The court while deciding the alimony takes into consideration the salary, income , assets and expenditure of both husband and wife. These proof are vital in case of alimony

 

 

4.The husband has to wait for a period of one year to enforce the decree of RCR. Thus, various personal laws also hold that where there is no restitution of conjugal rights or resumption of cohabitation between the parties for a period of one year or above after the passing of the decree for restitution of conjugal rights in a proceeding to which they were parties; it can become a ground for divorce. Here it is necessary to note, that this ground is available to both parties.

 

 

5. This may not be allowed by court . Because it is against "Right to Privacy" of a person .(Court will consider this request as a strange one .)

 

 

6.If your wife has no income to survive then the court will definitely allow maintenance to her and that will be continued till her remarriage or getting of sufficient income 

 

 

7. You can .

 

 

8.After getting an RCR how can you divorce her . You  can get divorce only after filing an OP(HMA) before a family court .Then during that period if she is giving an interim application for divorce she will definitely get that . (If you are genuinely want a good relation with her you just file RCR and live with her happily)

 

 

NB:Personal Opinion:This is a typical example for how the matrimonial disputes are  going on nowadays. Within one year a lot of misunderstandings happened in your relation .You are even considering "Restitution of conjugal rights" as a weapon to fight against your wife . RCR, and counciling sessions  before a divorce decree all are meant to support the family system in our society . And not meant to play with . If there is harmony in relation, then no spouse will tend to dominate .If there is lack of care and love then only all these will happen . So think in a positive way and try to solve the problem in a harmonious way

 

 

 

Asked at July 09, 2018

 

Agree Comment 0 Agrees over 3 years ago

Sir

Answer to your 1st question 

If you have decided that you don't want to stay with her in that case you may send her notice for amicable settlement. This may help you for divorce or RCR . Your wife can file Domestic violence no matter what petition you have filed.

2nd and 3rd 

Your wife can claim maintenance if she is a house wife and not educated. In the same situation if she cannot afford to come to court and fight litigation the court may allow some litigation cost upon you but,  the same is applicable after going through the merits of the matter.

Sir for your further questions 

If you are not interested in this relationship you may directly go for divorce petition. 

She can ask for Maintenance at any point of time. 

If you decide upon the divorce case rest of your questions are satisfied. 

Thanks

Agree Comment 0 Agrees over 3 years ago

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