Asked June 11, 2016

RCR - Divorce

  • 1 Answer

Hello sir, My mother in law take my wife and my new born child from my house six month before for rest after delivery but now they are not sending back my wife and my child. They are blackmailing me to sign on stamp paper for many conditions which they want to fulfill. I am a govt employee. My mother in law clearly said that sign on stamp paper or live lonely whole life and if I try to go to court, she would teach me lesson. I tried my all efforts to bring my wife back but all in vain. I take help of elders of my family as well as her family but she (mother in law) send out of house to them. My mother in law interfering in my home since first day of marriage. She educate her daughter (my wife) to record all small things while we are together, even I don't know about this. So sir they left only two options for me ie: either accept their demands (which may increase in future) or live lonely whole life. Sir please guide me in this case. I think if I file section 9, they either counter file 498a or they make many allegations like DV or etc and hold this RCR for years. I think it is waste of my time. So pls help me in following questions: 1- Can I file RCR first? 2- Can I file divorce directly? 3- Pls suggest best family lawyer in Ajmer (Rajasthan) whose success rate is very high. 4- Can I seek child custoudy during RCR? 5-What loss would be to me in these case, I am a government employee, and pls suggest precautions?

Answer 1

Default avatar
Shreya Mishra

Restitution for conjugal rights(RCR) is granted when one of the spouses leaves the

matrimonial home and thus deprives the other spouse of conjugal rights. Yes, you can file

a suit for restitution for conjugal rights and alongside also file a suit for the custody of the

child. Both the suites can be filed simultaneously as was also done in the case of P.S.J.

Manickavasagam vs Chandramathi Dayamani[1]. If the Court passes the decree in

your favour and asks your wife to come back to her matrimonial home and she fails to do

so then after one year , under Section 13(1A)(ii) of the Hindu Marriage Act, 1955 , you

can file for divorce. Not resuming conjugal rights even after the passage of RCR decree is

a valid ground for divorce. However, you will have to prove that your wife had no

reasonable grounds to leave the matrimonial home.

There are several grounds for divorce­ desertion and cruelty applying to your case.

However, you cannot file for divorce under the ground of desertion, as it can be filed

only after a period of two years.[2] If you file for divorce under cruelty, you cannot

simultaneously ask for Restitution of conjugal rights as an alternative. This was held in

the case of Baldev Raj v. Bimla Sharma[3]. Another ground for divorce can be

irretrievable breakdown of marriage where you need to show that the marriage has

broken down in such a manner that it is absolutely not possible for both of you to live

together as a married couple. However, the threshold for that will be high and you

might be asked as to whether you have tried all other means to retrieve the marriage,

hence it is not advisable to go under this ground.

As regards Custody, there is no fixed principle on who will/might get the custody. The

Court has decided it on the basis of the welfare of the child. If you can prove that you can

take better care and it will be in the best interest of the child to be under your custody

then you might get it. However it goes beyond economical means and merely showing

that you are earning and hence in a better position to take care of the child will not suffice.

In light of the numerous false dowry cases and cases under Section 498A, the Supreme

Court has taken a stronger stand and has also increased the penalty for filing false

cases.[4] Hence you should not worry about that as the Court is taking all possible

measures to make sure that only genuine cases are filed.

[1]AIR 1965 Mad 468

[2]Family Law I, 3

rd ed by Kusum.

[3]AIR 2006 HP 33

[4]http://www.firstpost.com/india/flipside­of­dowry­law­men­recall­how­section­498a­is­unfairly- used­against­them­2172943.html

Agree Comment 0 Agrees over 5 years ago

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