Marriage after failure of restitution of conjual rights


My friend got married four years back and their marriage lasted for 6 months, after which the wife left my friend's home and did not return back.Some time the wife filed a dowry case against my friend and his family in police and was forwarded to DPO and was declared as false.Later he filed a restitution of conjual rights in family court and was later granted the same in his favour,but still his wife failed to comply to the order and the time of 2 years (since he is a christian) has elapsed.So in this case whether he can go for remarriage?
Since there was a total of 3.5 years of deseration in which 2+ years of separation of failure of restitution.

Kindly suggest the best way to proceed with marriage. 

 

I am reposting the same message, as i wrongly posted in other category

 
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Practicing Advocate

File for divorce in the family court / dist. court (where there is not family court). Without a divorce decree your friend cannot validly remarry. If the wife is not interested to come for cohabitation then, MCD will be a better option.

 
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Advocate

Your friend has 3 strong grounds to get divorce immediately.  1. On false dowry cases, cruelty can be a factor for applying for divorce and there are judgments in favor husband to get divorce.  2. One year after the passing of decree of RCR anyone of the party to marriage can apply for divorce under S.13 (1A). 3. Desertion makes a ground under S.13(1) (ib). 

 

Consult a good local advocate.

 
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Dear Sir/Madam,

Thanks for your reply. Could you please expand MCD?

Also since the boy is a christian , 2 years wait period on restitution of conjual rights is also passed. So as you said,he has three strong reason for applying divorce.

1. Deseretion for 3 years and more

2. Failed to comply with degree of restituion

3. Court declared false case for dowry 

He is much concerned whether if he goes for divorce application , it will take atleast 1 year and he fears that his age will be running. Could you please tell me if he goes for divorce how long will it take to complete. What in case again if the wife starts aruging in the court  if he fills divorce case? but already she has failed to comply with degree of restituion. He also concerned wither any alimony will be ordered if he goes for divorce, though he has valid reason.

 
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Dear Dilip,

 

Agreeing with suggestions given by my bother and sister colleges, As requested MCD means Mutual consent divorce petition which can be filed by Husband and wife jointly seeking mutual divorce.

On presentation of the same court will give six months time as waiting period for re-union. If possible. If the same is failed, the matter will be decided by the court in accordance with Law

 
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Advocate

@Dileep Kumar.  I am sorry for giving you wrong advice.  If your friend is christian what I said in my previous message is not applicable to him.  He should apply for divorce under the The Divorce Act, 1869. The sections applicable are Section 10 (viii), 10 (ix) and 10 (x).  If he had registered marriage under Special Marriage Act, then this will not apply, he has to go under the provisions of Special Marriage Act.

 
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Yes he has got restitution thru 1869 act.The problem is the girl is not coming for any sort for geting things done.not ready to join with him after he got restitution in his favour and not even ready to give mutual too. So he is much concerned to file divorce now and if he is filing how long will it take . What problem will be created if he goes for remarriage without divorce since the girl has failed to obey court order on restitution. So he is thinking what will the court can do if he go for marriage as the girl is not concerned about him anymore
 
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Advocate

Do not take easy view about the issue of remarriage without obtaining decree of divorce from a competent court, it will have very serious consequences.  Even if she had not obeyed the decree of RCR that does not construe any right on your friend to remarry without obtaining a decree of divorce from competent court.  As far as her resistance to cooperate is concerned your friend can file a Divorce under sections I mentioned in my previous message.  It would be called a contested divorce.  If divorce is filed by a joint petition by your friend and his wife together then it is called a Mutual Consent Divorce.  As she is not willing to cooperate your friend must file a contested divorce.  There are very strong grounds for him to get divorce very quickly even if his wife does not cooperate.  Let him file contested divorce if she is not coming forward for Mutual Consent Divorce. 

 
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Thanks sir for ur valuable reply. Also tell us incase if his wife started contesting the divorce case will it take long time or will be given divorce automatically since she failed to comply restitution decree.and whether maintenance can be claimed by him as she did not obey
 
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