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pt (swlf)     19 October 2013

Hindu marriage act 9

Please help,

My sister had a bad marriage and due to my parents pressure she had suffered a lot of torchure from her husband and in laws....but since it got too much....we have filed a complaint in Mahila Thana and they started the Counselleling..... Her husband appeared in two conuselling and said that he wants to keep her...but we know that its only to save himself from the legal case... He did not appear in third counselling and so we asked for action and the police filed FIR u/s 498a against him.......but before the FIR her husband filed a RCR section 9 in ...Family Court at his place......asking court to order my sister to come to him........

But since we know him and his family now..... that she would have life threat and if he takes back she will have to bear more torchure....we do not want to continue the marriage.

Is it possible that the RCR case be terminated,,,,if we show the proof of FIR and tell that what he had done and why she does not want to come back...... will the court then accept his divorce case(if filed in future)?

If the court accepts divroce case...she is not eligible to get any compensation for her and her child?

Please help as I am very confused to make the decision.



Learning

 9 Replies

T. Kalaiselvan, Advocate (Advocate)     20 October 2013

She can contest the RCR case and file a counter claim in the same petition for divorce by paying appropriate fees for the relief sought for and in that itself she can file petition for interim maintenance and also for permanent alimony also.

pt (swlf)     20 October 2013

sorry but I did not understand it.....can u explain in details......can you share the section and rules too..... Thanks

ashoksrivastava (scientist)     20 October 2013

Originally posted by : pt


sorry but I did not understand it.....can u explain in details......can you share the section and rules too..... Thanks

9. Restitution of conjugal right.

1*** When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights land the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly.

seeking, such relief on that ground.

 

Explanation.-Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of prov- ing reasonable excuse shall be on the person who has withdrawn from the society

23A.Relief for respondent in divorce and other proceedings. In any proceeding for divorce or judicial separation or restitution of conjugal rights, the respondent may not only oppose the relief sought on the ground of petitioner's adultery, cruelty or desertion, but also make a counter-claim for any relief under this Act on that ground; and if the petitioner's adultery, cruelty or desertion is proved, the court may give to the respondent any relief under this Act to which he or she would have been entitled if he or she had presented a petition seeking, such relief on that ground.

 

regards

ASHOK

 

.

 

pt (swlf)     20 October 2013

Thank you....Mr. Kalaiselvan and Ashok,  ...can I call you?

T. Kalaiselvan, Advocate (Advocate)     20 October 2013

Pt,

I will be available on Ph: +919443441062; you can clarify giving details to my mail id : kalai59thanga@gmail.com;

Adv. Chandrasekhar (Advocate)     20 October 2013

I support your line of thinking instead of your parental thinking.  In our society, including the judiciary, an approach is adopted to protect the institution of marriage even at the cost of repeated, continuous and inhuman physical abuse perpetrated against the wife by her husband.  The continuous preaching to the wife to tolerate all such abuses by the natal family may be due to the economic, social, family and culturlal  conditions in which the wife's natal family is living.  This forcefully sending the battered wife to the cruel husband is not a rare phenomenon in our country and in and every Section 304-B (dowry death)  convicted cases, you can note that the severe battering happened prior to  the unfortunate death of the wife.  So, I agree with your decision in your sister's case, going for divorce is far better than sending your sister to her husband in the name of 'protecting the sanctity and institution of marriage'.  Legal part is concerned - he filed Section 9 (RCR) case to put blame on the wife that she voluntarily has withdrawn from marital obligations only to evade the maintenance liability.  So, your sister has to contest Ssection 9 case filed by him on the ground that she has withdrawn his society for the reason of continuous physical  abuse she received from her husband's hand.  In this case itself, she can counter claim seeking divorce on the ground of cruelty.  In this very case, she can also move an application under Section 24 for interim maintenance for herself and the child.  But this maintenance will be applicable only till the case is before the court.  Once the case is decided either way, the interim maintenance will automatically stop.  So, to get maintenance permanently she can file an independent Section 125 Cr.P.C. case for maintenance to herself and the child, which will be provided to her till she remarries. 

ktkaran (maanger)     20 October 2013

If u think ur sister is being tortured then why waste time in courts in 498A etc.talk for mutual divorce and move on.Instead of  Court focus your energy on finding a better groom for your sister.

3-5 years will go in court for sure nothing will hapen overnight,so save this energy and do focus on getting her remaaried if you think that husband family is so bad.


(Guest)
Originally posted by : Adv. chandrasekhar

I support your line of thinking instead of your parental thinking.  In our society, including the judiciary, an approach is adopted to protect the institution of marriage even at the cost of repeated, continuous and inhuman physical abuse perpetrated against the wife by her husband.  The continuous preaching to the wife to tolerate all such abuses by the natal family may be due to the economic, social, family and culturlal  conditions in which the wife's natal family is living.  This forcefully sending the battered wife to the cruel husband is not a rare phenomenon in our country and in and every Section 304-B (dowry death)  convicted cases, you can note that the severe battering happened prior to  the unfortunate death of the wife.  So, I agree with your decision in your sister's case, going for divorce is far better than sending your sister to her husband in the name of 'protecting the sanctity and institution of marriage'.  Legal part is concerned - he filed Section 9 (RCR) case to put blame on the wife that she voluntarily has withdrawn from marital obligations only to evade the maintenance liability.  So, your sister has to contest Ssection 9 case filed by him on the ground that she has withdrawn his society for the reason of continuous physical  abuse she received from her husband's hand.  In this case itself, she can counter claim seeking divorce on the ground of cruelty.  In this very case, she can also move an application under Section 24 for interim maintenance for herself and the child.  But this maintenance will be applicable only till the case is before the court.  Once the case is decided either way, the interim maintenance will automatically stop.  So, to get maintenance permanently she can file an independent Section 125 Cr.P.C. case for maintenance to herself and the child, which will be provided to her till she remarries.

-----------------------------


 

 

Dear Adv. Chandrasekhar , A nice elaboration given on Women CONDITIONS.......

 

But you have missed to Add Male in the sentences which is highlighted. Because the condition which you have written in green highlighted sentences that should be written for both male and Female because suffering in marriage life is not only for females but also the similar condition of males.

 

So, when you generalize the topic of suffering then do put the similar conditions of both male and female. In today's world only female is not suffering as the statistical data has crossed it's limits which shows that in India the suicidal cases of male has emerged at alarming rate and it's main cause is due to marital disputes,Financial disputes and yes some where societical disputes.

 

So, My dear Advocate don't become only a 498a Lawyer or DVA lawyer or Maintenance Lawyer........


Do come out of from this and be A neutral Lawyer who is made to protect the law without caste,creed,colour or s*x.



(Guest)

The querist had a clear and wiser thought for her sister which I appreciate for his thinking...

 

1. Adv. Chandrasekhar has rightly opined on The RCR and it's causes.

 

2. No court can compell her to join her husband.

 

3. Better oppose his RCR and file for divorce if MCD has no chances to occur.

 

4. If She win RCR which also goes the way towards divorce after one year of  such judgement where no cohabitation between the couple.

 

5. If she wins RCR then it will Uplift her Divorce case and the decision will no longer to wait for her.

 

6. If she is 100% unable to maintain herself as she is not educated and not able bodied to survive without Husbands money then there are another 3 out of 5 ways to get maintenance.

 

7. Talk for MCD and get rid off this dead marriage without any hiccups rather than wasting years around court corridors.


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