Advice please
Sandeep Kumar
(Querist) 05 May 2013
This query is : Resolved
RCR filed in Dec' 2011
(before RCR several attempts made; by phone calls (having call records), parents going their home for take back - she refused, sending money order twice, internal meeting etc.) she refused RCR three times and finally lodged totally false 498a, 502,307 etc.,to all my family members in Aug' 2012.
got anticipatory bail from kolkata high court .
She has taken all "STRIDHAN" as high court advised.
Chargesheet submitted by police, no proof (only police repeated his story in the chargesheet)
Again, RCR sent, now received but not appearing and submitted for one more month time for response.
498a case also going to start.
Actually she trapped in her false 498a case, second way their family members urging for excuse.
Question - What she going to say in RCR, if she comes.
If they planning for money (maintenance or alimony)then how can stopped.
She having intention from beginning - not to look after family members and give all earned money. their family members (mother (father expired), brothers) used her to extort us.
She is not earning lady and no child.
Our intention - Not to keep her and don't want to pay single penny.
Advice please..
Advocate M.Bhadra
(Expert) 05 May 2013
Filing a suit for Restitution of Conjugal Right is no relief in fact and execution of the decree is difficult,moreover it is time and money loss.
File a suit for Divorce on mutual consent,failing which you can file a Divorce Suit on contest.
Restitution of Conjugal Rights - (Right to stay together)
If either the husband or the wife, without reasonable excuses, withdraws from the society of the other, the aggrieved party may approach the Court for restitution of conjugal rights.
The decree of restitution of conjugal rights cannot be executed by forcing the party who has withdrawn from the society from the other to stay with the person who institutes Petition for restitution. The decree can be executed only by attachment of the properties of the judgment debtor. The practice has shown that the decree of restitution is a paper decree.
However, if the decree of restitution of conjugal right is not honored for a period of more than one year, subsequent to the date of the decree, it becomes a ground for divorce.
Judicial Separation: Legal Separation without divorce
Either party to the marriage may present a petition on any of the grounds stated in the provisions for divorce, praying for a decree of judicial separation. A judicial separation is a legal way to stay separate from the spouse, without obtaining a decree of divorce. It also helps in cases to defend a petition for restitution of conjugal rights. A judicially separated spouse cannot be given a meaning to include a spouse merely living separately, and who has not obtained a decree for judicial separation.
In case, there has been no resumption of cohabitation between the parties to the marriage for a period of one year or upwards, after the passing of the decree for judicial separation, it shall be a ground for a divorce.
Restitution of Conjugal Rights is a remedy provided for Hindus under Section 9 of the Hindu Marriage Act 1961, for Christian and others under Section 32 of the Indian Divorce Act and for Muslim under their personal laws. The Special Marriage Act provides for the same remedy under Section 22. It provides that a decree be obtained from the court against a spouse who has withdrawn from the company of his/her spouse, to return and render conjugal rights to the deserted spouse. Conjugal rights are the rights and privileges arising from the marriage relationship, especially the mutual rights of companionship, aid, and sexual relations. The history of this remedy can be traced back to the Ecclesiastical Courts of yore, where desertion was not a matrimonial offence constituting a ground for divorce, and the only remedy available to a deserted wife was restitution of a decree of conjugal rights.
It is interesting to note that non compliance to a decree of restitution of conjugal rights was made punishable with imprisonment for a period of less than six months by the Ecclesiastical Courts Act, 1813, whereas earlier non-compliance with the decree was punishable with excommunication. In 1925, the Supreme Court of Judicature (Consolidation) Act, 1925, abolished imprisonment and non-compliance to the decree was to be ground for judicial separation.
Devajyoti Barman
(Expert) 05 May 2013
If you did not want to keep her then why did you file suit for RCR?
You have to then now withdraw the RCR and file suit for divorce.
However you can not avoid paying her maintenance or alimony.
Raj Kumar Makkad
(Expert) 05 May 2013
You have correctly been advised by experts.
prabhakar singh
(Expert) 06 May 2013
When your intention is "not to keep her " and not even to pay a single penny.
I can understand for what purpose your RCR is?
For time being she is justified to live away on grounds of allegations made by her in 498a.as an answer to your RCR and that would be her WS.
So your strategy of RCR is not foolproof and can not afford you relief of denial of maintenance to her.
What you should really do has already been advised.
