Can i convert ex-parte restitution into divorce petition prior to decree
DNJ
(Querist) 03 December 2012
This query is : Resolved
Dear Sirs,
Details of case:
I had filed for Restitution u/s 9 against my estranged wife in March 2012. My wife has never appeared before the Mumbai family court until now and the Judge has agreed to provide a ex-parte decree in my favour for which I now need to submit the original evidences on the next date.
I have a son also who is 3 years old and my wife stays at Nasik. My wife, after 6 months of Restitution petition has filed 2 cases against me : 1st one is u/s 125 CrPC and 2nd one against myself and my parents which is U/S 12(1) (DV), 18, 19 & 20. She is claiming maintenance of 20% of my salary of Rs. 1.25 lacs. I have already returned Stridhan to my wife’s relatives when they demanded it 2 years back and I had got it written on a Rs. 100 stamp paper.
My lawyer now suggests me to convert this ex-parte Restitution (prior to decree) into a Divorce petition with due permission of the Judge in family court.
Please advise:
1) If there will be any issue here in converting the Restitution petition to a decree and can this be done?
2) Will there be any merits in doing this now or should I wait? I do not intend to bring my wife back as I am in a very bad state of health including my parents who are also ill health and my wife by filing the DV and maintenance cases is purely harassing us. She is ill intented.
3) Can I request for a Fast track proceedings for my Restitution petition in Mumbai family court if conversion is not good for us?
4) Will I have to pay maintenance?
5) Can I apply in Mumbai High court for Quashing the DV case as the points mentioned by my wife in the petition filed by her in Nasik court are baseless?
6) Can i claim custody of the child?
As always, thank you very much. Your guidance has always been of great help to me.
Best regards,
Dharmesh
Devajyoti Barman
(Expert) 03 December 2012
1. There is no provision for conversion of RCR decree into that of divorce. For it you have to file a separate case for divorce after one year from the date of rcr decree.
2.Wait for sometime more.
3.No
4. Yes if she is unemployed.
5.You may try but falsity of ground is no ground for quashing.
6.Yes
ajay sethi
(Expert) 03 December 2012
no you cnanot convert RCR into divorce .
you should wait .
you have not mentiond your wife qualfications . whether she is working or not . if she is not working you have to pay maintenance .
high court is generally reluctant to quash DV case . you have to fight case on merits . .
you cna claim custody of the child but generally wife is given custody . you may get visitation rights
Raj Kumar Makkad
(Expert) 03 December 2012
I have nothing to add in the given replies.
R.K Nanda
(Expert) 03 December 2012
nothing to add.
