Why not to file restitution of conjugal rights

What are the ways by which the legal framework can be amended for cl.498a ,desertion beyond 2+ years etc.Can SC impose it on all State HC or individual states can take its own stance

I agree with Mr. Shoone kapoor that the RCR should not be filled.. BUt my point of view is that why to stay with that girl who fas filled false compalints against you.. She may do it later also.. Avoid such girls and start your life from afresh..

Mr RK,

Many think that RCR is a protective measure to avoid 498a punishment, and files. Thats the core topic of discussion of this thread

Yes,

 

Many think so, but there is no sound basis for the same.

 

 

 

Shonee sir,

    

I am a great fan of yours and have been reading all your threads since last 6 months to be compitent to fight 498a, if it comes my way.

    

But I found myself confused after reading this thread as I still think that RCR is useful (though not always), please correct me.

     

Whenever a wife leaves a matrimonial home and not willing to come back, after waititng for a certain period husband is left with 2 below legal option (and boh can very well invite 498a so there is no escape) :

   

(1) Divorce : Filing divorce on cruelty ground (and deserton). Cruelty that has taken place inside 4 walls is difficult to prove and it may take 20 years to get divorce on such vague allegations. And if 498a is filed after divorce then I have observed (by reading various posts) that husband is considered as the one who is running from marriage and thus judges trouble him as there main motive is to save marriage at any cost.

       

(2) RCR: In a normal husband-wife relation, while filing RCR husband can easily show (though that wont be a strong/useful evidence) that he has taken good care of his wife by supporting medical bills, honeymoon destination, credit card shopping bills, 100s of emails/chats exchanged of good times and his efforts to call her wife back to matrimonial home (like emails, phone call recordings). Now once he files RCR with such supporting evidences then onus of proving him wrong shifts on wife and now she has to prove (beyond reasonable doubt) that he has done cruelty (which is again very difficult to prove). She can definitely claim that *as her husband was cruel so she has left her matrimonial home* but mere allegations (without any supporting grounds) should not be enough to set aside his RCR so most likely husband will win RCR and after some time he can file divorce on desertion ground.

Please correct my understanding.

        

Disclaimer :    :-)   Sir, main confused hoon ki kaise divorce loon wife se :-( so divorce/RCR evaluate ker raha hoon :-( she has deserted and not coming back and not responding to MCD requests. I have enough poofs (emails, phone recordings) that I made efforts to call her back and her parents voice recording that I have take good care of her but due to our incompatibility she won't come back :-( No blame game yet. I am also not willing to let her join back as I have made enough genuine efforts to make her realise but she is a typical 21st CENTURY GIRL.

     

P.S. She has extra-marital affair and happily f*cking around with her boyfriend. Maintance and alimony cannot come my way as she is earning in 7 digits yearly and she will NEVER come back, it is gauranteed.

last 3 lines of ur post indicate that, the wife, herself will be in a hurry to get out of this failed marriage.

just wait and watch ... she will agree for MCD

Fight_with_498a

 

You may read Point 6 of the post.

 

Regards,

 

Shonee Kapoor

Shonee sir I have a small disagreement with a part of your argument no 6 "But, BUt, BUT… and its not a small but, it’s the decree which has been enforced and executed under Order 21 Rule 32 of Civil Procedure Code, 1908. Hence, count the ..." HMA doesn't mention that rcr decree needs to be executed for no cohabitation after 1 year of passing of rcr decree , to be a ground of divorce. there are some apex court and high court judgements where divorce has been granted to decree debtor as well as decree holder on this ground alone.without execution petition being filed.though its true that apex court has finally ruled that though this is a ground for petition to be admitted courts are not bound to mechanically grant divorce because petition is admissible. I would be obliged if you can give me some judgement wherein divorce is not granted on this ground only because execution petition was not filed. I am in real need of such a judgement. regards ASHOK

I would give you atleast one such judgment later at night or tomorrow. I believe it is a Madras HC judgment.

 

 

 

Regards,

 

Shonee Kapoor

Shonee sir I am attaching apex court judgement in dharmendra kumar vs ushakumar case where divorce was granted to decree holder without filing of execution petition by her

Supreme Court of India Supreme Court of India Dharmendra Kumar vs Usha Kumar on 19 August, 1977 Equivalent citations: 1977 AIR 2218, 1978 SCR (1) 315 Bench: Gupta, A.C. PETITIONER: DHARMENDRA KUMAR Vs. RESPONDENT: USHA KUMAR DATE OF JUDGMENT19/08/1977 BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. FAZALALI, SYED MURTAZA CITATION: 1977 AIR 2218 1978 SCR (1) 315 1977 SCC (4) 12 CITATOR INFO : R 1984 SC1562 (5) ACT: Hindu Marriage Act 1955-Section 13(1A)(ii).-23(1)(a)-If divorce can be obtained for absence of restitution of conjugal rights after decree for restitution is granted by a person who refuses to have restitution-Whether such a conduct amounts to a wrong within the meaning of sec. 23 (1) (a) of the Act. HEADNOTE: The respondent-wife was granted a decree for restitution of conjugal rights on her application under s. 9 of Hindu Marriage Act, 1955 by Additional Senior Sub-Judge, Delhi, on 27th August 1973. On 28th October 1975, the respondent presented a petition under s. 13(1A) (ii) of the Act in the Court of Additional District Judge, Delhi for dissolution of the marriage by a decree of divorce-stating therein that there bad been no restitution of conjugal rights between the parties after the passing of the decree for restitution of conjugal rights. The appellant-husband, in his written statement admitted that there had been no restitution of conjugal rights, between the parties after the passing of the decree in earlier proceedings, but stated that he made Dharmendra Kumar vs Usha Kumar on 19 August, 1977 Indian Kanoon - https://indiankanoon.org/doc/1248559/ 1 SORRY FILE IS NOT GETTING ATTACHED OR COPIED TOTALLY

well drafted article....

Finally able to copy in 'MSWORD' complete judgement previously posted Supreme Court of India Supreme Court of India Dharmendra Kumar vs Usha Kumar on 19 August, 1977 Equivalent citations: 1977 AIR 2218, 1978 SCR (1) 315 Bench: Gupta, A.C. PETITIONER: DHARMENDRA KUMAR Vs. RESPONDENT: USHA KUMAR DATE OF JUDGMENT19/08/1977 BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. FAZALALI, SYED MURTAZA CITATION: 1977 AIR 2218 1978 SCR (1) 315 1977 SCC (4) 12 CITATOR INFO : R 1984 SC1562 (5) ACT: Hindu Marriage Act 1955-Section 13(1A)(ii).-23(1)(a)-If divorce can be obtained for absence of restitution of conjugal rights after decree for restitution is granted by a person who refuses to have restitution-Whether such a conduct amounts to a wrong within the meaning of sec. 23 (1) (a) of the Act. HEADNOTE: The respondent-wife was granted a decree for restitution of conjugal rights on her application under s. 9 of Hindu Marriage Act, 1955 by Additional Senior Sub-Judge, Delhi, on 27th August 1973. On 28th October 1975, the respondent presented a petition under s. 13(1A) (ii) of the Act in the Court of Additional District Judge, Delhi for dissolution of the marriage by a decree of divorce-stating therein that there bad been no restitution of conjugal rights between the parties after the passing of the decree for restitution of conjugal rights. The appellant-husband, in his written statement admitted that there had been no restitution of conjugal rights, between the parties after the passing of the decree in earlier proceedings, but stated that he made Dharmendra Kumar vs Usha Kumar on 19 August, 1977 Indian Kanoon - https://indiankanoon.org/doc/1248559/ 1 attempts to comply with the decree dated 27th August 77 by writing several registered letters inviting the respondent to live with him to which, according to him she never replied. The husband contended that she herself prevented the restitution of conjugal rights and was making a capital out of her own wrong which she was not entitled to do. HELD : No circumstance has been alleged in the instant case from which it could be said that the respondent was trying to take advantage of her own wrong. Section 13(1A)(ii) of Hindu Marriage Act 1955 allows either party to a marriage to present a petition for dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for the period specified, in the provision after the passing of the decree for restitution of conjugal rights. Sub-section (1A) was introduced in section 13 by section 2 of Hindu Marriage (Amendment) Act 1964. Section 13 as it stood before the 1964 amendment permitted only the spouse who had obtained the decree for restitution of conjugal rights to apply for relief by way of divorce. The party against whom the decree was passe(, was not given that right. The relief which is available to the spouse against whom a decree for restitution of conjugal rights has been passed cannot reasonably be denied to the one who does not insist on compliance with the decree passed in his or her favour. In order to be a "wrong" within the meaning of s. 23(1)(a) the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled. Mere non-compliance with a decree for restitution does not constitute wrong within the meaning of section 23(1)(a). [317D-G] JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 949 of 1977. Appeal by Special Leave from the Judgment and Order dated 19-10-1976 of the Delhi High Court in F.A.0., No. 170 of 1976. Naunit Lal, R. K. Baweja and Miss Lalita Kohli, for the Appellant. S. L. Watel, C. R. Somasekharan, R. Watel and M. S. Ganesh, for the Respondent. The following Judgment of the Court was delivered by GUPTA, J.-On her application made under section 9 of the Hindu Marriage Act, 1955, the respondent was granted a decree for restitution of conjugal rights by the Additional Senior Sub-Judge, Delhi on 316 August 27, 1973. A little over two years after that decree was passed, on October 28, 1975 she presented a petition under section 13 ( IA) (ii) of the Act in the Court of the Additional District Judge, Delhi, for the dissolution of the marriage by a decree of divorce. Section 13 (IA) (ii) as it stood at the material time reads : "Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground- (i) x x x (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of two years or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. The provision was amended in 1976 reducing the period of two years to one year, but this amendment is not relevant to the present controversy. In the petition under section 1 3 (IA) (ii) she-we shall hereinafter refer to her as the petitioner-stated that there had been 'no restitution of conjugal rights between the parties to the Dharmendra Kumar vs Usha Kumar on 19 August, 1977 Indian Kanoon - https://indiankanoon.org/doc/1248559/ 2 marriage after the passing of the decree for restitution of conjugal rights and that there was no other legal ground why the relief prayed for should not be granted. Her husband, the appellant before us, in his written statement admitted that there had been no restitution of conjugal rights between the parties after the passing of the decree in the earlier pro- ceeding, but stated that he made attempts "to comply with the decree (for restitution of conjugal rights) by writing several registered letters to the petitioner" and "otherwise" inviting her to live with him. He complained that the petitioner "refused to receive some of the letters and never replied to those which she received", and according to him the petitioner "has herself prevented the restitution of conjugal rights she prayed for and now seeks to make a capital out of her own wrong". The objection taken in the written statement is apparently based on section 2 3 (1 ) (a) of the Act. The relevant part of section 2 3 (1) (a) states : Decree in proceedings. "23. (1) In any proceeding under this Act, whether defended or not, if the court is satisfied that- (a) any of the grounds for granting relief exists and the petitioner........ is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief...... " On the pleadings the following issue was raised as issue No. 1 "Whether the petitioner is not in any way taking advantage of her own wrong for the reasons given in the written statement ?" 317 Subsequently the following additional issue was also framed "Whether the objection covered by issue No. 1 is open to the respondent under the law ?" This additional issue was heard as a preliminary issue. The Additional District Judge, Delhi, who heard the matter, relying on a Full Bench decision of the Delhi High Court reported in I.L.R. (1971) 1 Delhi 6, (Ram Kali v. Gopal Dass), and a later decision of a learned single Judge of that court reported in I.L.R. (1076) 1 Delhi 725, (Gajna Devi v. Purshotam Giri) held that no such circumstance has been alleged in the instant case from which it could be said that the petitioner was trying to take advantage of her own wrong and, therefore, the objection covered by issue No. 1 was not available to the respondent The Additional District Judge accordingly allowed the petition and granted the petitioner a decree of divorce as prayed for. An appeal from this decision taken by the husband was summarily dismissed by the Delhi High Court. In the present appeal the husband questions the validity of the decree of divorce granted in favour of the petitioner. Section 13 (IA) (ii) of the Hindu Marriage Act, 1955 allows either party to a marriage to present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage for the period specified in the provision after the passing of the decree for restitution of conjugal rights. Sub-section (IA) was introduced in section 13 by section 2 of the Hindu Marriage (Amendment) Act, 1964 (44 of 1964). Section 13 as it stood before the 1964 amendment permitted only the spouse who had obtained the decree for restitution of conjugal rights to apply for relief by way of divorce; the party against whom the decree was passed was not given that right. The grounds for granting relief under section 1 3) including sub-section (IA) however continue to be subject to the provisions of section 23 of the Act. We have quoted above the part of section 23 relevant for the present purpose. It is contended by the appellant that the allegation made in his written statement that the conduct of the petitioner in not responding to his invitations to live with him meant that she was trying to take advantage of her own wrong for the purpose of relief under section 1 3 (1 A) (ii) On the admitted facts, the petitioner was undoubtedly entitled to ask for a decree of divorce. Would the allegation, if true, that she did not respond to her husband's invitation to come and live with him disentitle her to the relief ? We do not find it possible to hold that it would. In Ram Kali's case (supra) a Full Bench of the Delhi High Court held that mere non-compliance with the decree for restitution does not constitute a wrong within the meaning of section 2 3 Dharmendra Kumar vs Usha Kumar on 19 August, 1977 Indian Kanoon - https://indiankanoon.org/doc/1248559/ 3 (1) (a). Relving on and explaining this decision in the later case of Gajna Devi v. Purshotam Giri (supra) a learned Judge of the same High Court observed "Section 23 existed in the statute book prior to the insertion of section 13(1A)...... Had Parliament intended that a party which is guilty of a matrimonial offence and against 318 which a decree for judicial separation or restitution of conjugal rights had been passed, was in view of section 23 of the Act, not entitled to obtain divorce, then it would have inserted an exception to section 13 (1 A) and with such exception, the provision of section 13(1A) would practically become re- dundant as the guilty party could never reap benefit of obtaining divorce, while the innocent party was entitled to obtain it even under the statute as it was before the amendment. Section 23 of the Act, therefore, cannot be construed so as to make the effect of amendment of the law by insertion of sec- tion 13(1A) nugatory. advantage of his or her own wrong" occurring in clause(a) of section 23(1) of the Act does not apply to taking advantage of the statutory right to obtain dissolution of marriage which has been conferred on him by section 13(1A). In such a case, a party is not taking advantage of his own wrong, but of the legal right following upon of the passing of the decree and the failure of the parties to comply with the decree............" In our opinion the law has been stated correctly in Ram Kali v. Gopal Das (supra) and Gajna Devi v. Purshotam Giri (supra). Therefore, it would not be very reasonable to think that the relief which is available to the spouse against whom a decree for restitution has been passed, should be denied to the one who does not insist on compliance with the decree passed in his or her favour. In order to be a 'wrong' within the meaning of section 23 (1) (a) the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled. In the case before us the only allegation made in the written statement is that the petitioner refused to receive or reply to the letters written by the appellant and did not respond to his other attempts to make her agree to Eve with him. This allegation, even if true, does not amount to misconduct grave enough to disentitle the petitioner to the relief she has asked for. The appeal is therefore dismissed but without any order as to costs. P.H.P. Appeal dismissed. 319 Dharmendra Kumar vs Usha Kumar on 19 August, 1977 Indian Kanoon - https://indiankanoon.org/doc/1248559/ 4

I don't think there should be any practical reason to go for RCR. As husbands, we have already made a mistake. Same thing repeating again would not be termed as a mistake, it would be blunder. If anyone wants to end his life, then RCR can be an option. Because of all these shortcut ways to get out of 498A trouble, we ourselves look clowns in the Judiciary system, which the other parties take advantage of. We already suffered a lot in terms of money and life and social status................still I can't imagine the need for reconciliation. Take back the same woman in life & try to save maintenance................Huh!!!! height of optimism. 

But you would be amazed people file RCR even when they should have filed divorce on the grounds of Adultery.

 

 

 

Well written article sir, where do you poractise.