bharat 16 July 2017

Withdrawing a divorce case :merits and demerits

I have applied a divorce under mental cruelty and desertion ground in 2015.After that she applied for maintenance under CRP ,agin under domestic violence and again against my CP (DIVORCE CASE).She is not ready to give divorce,AS I am an govt employee and posted in other state it is very difficult to attend all the date.Already I am paying maintenance of 7000 as interim maintenance and noe family judge has ordered to pay 14000 as maintenance.I have two child also.She is not allowing me to see nor even to talk.My lawyer suggests that we will withdraw the case.After that she will file the divorce automatically.I am confused and can't understand what to do.After withdrawing my divorce whether she can apply for living together?We are living separate from last 2 years.Now I don't want tolive with her at any cost.But I want my children back.So please guide me in this regard. Whether I should withdraw the case or what.

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Raveena Kataria (Advocate ) 16 July 2017

Yes, please bear in mind, she can apply for restitution of conjugal rights (essentially a court decree granted to a spouse when the other spouse has withdrawn from the society of the former for no apparent/good reason.) Cohabiting with you is her marital right, and your failure to comply with the decree shall further weaken your case.

If the application that she's filed against you under d/v is false, you need to prove that to the court with evidence. (For instance, proof you haven't inhabited with her for over two years, in case her grounds of d/v application involve your actual presence in the incident(s) mentioned.)

I'd strongly advise you to get in touch with another advocate for further assistance. In my opinion, withdrawl of your petition would not be a very prudent move.

bharat 16 July 2017

If she applies for restitution of conjugal right, am I bound to stay with her? Can the court compel me to do that.

Raveena Kataria (Advocate ) 16 July 2017

Well, if you do not comply with the decree, your wife will attain another ground for divorce upon the elapse of a year due to your non-compliance with the decree. Even if the divorce is granted to you both, you may be ordered to pay maintenance to her even till long after the divorce. Thus, I'd advise you to tread carefully and get better legal assistance.

Siddharth Srivastava (Advocate) 16 July 2017

If you want you can ask custody of your children by filing application u/s 26 HMAct. If your wife did not file divorce case after your withdrawal of case then what you will do? Withdrawing case would amount to waiver of allegations at your end? Divorce case is a civil matter so you are not required to appear on each date of hearing. Go strategically. In case of need contact with details.

bharat 16 July 2017