Why not to file restitution of conjugal rights

Legal Evangelist - TRIPAKSHA

Dear Friends,

 

I see a lot of advise about filing RCR (under various matrimonial laws, mostly Sec 9 of Hindu Marriage Act, 1955) whenever you face 498-a or threat of 498-a. I find no merit in filing RCR at all. I honestly think that this is the most useless provision of law. I hear varius arguments in favor of it, I don't agree with any of them

 

Argument 1 in Favor of filing RCR has been, it would reduce maintenance or end maintenance.

Look at it like this, what the statute says in CrPC 125 (4) if the wife, without any sufficient reason, she refuses to live with her husband. One has two ways of proving the same. Either get a decree of RCR in his favour or defeat her claims in CrPC 125 petition. No prizes for guessing, which one is going to be easier. The onus of proving that she has no rhyme and reason is going to be far difficult than proving that her allegations are not sufficient. Also, you are trying to cut one maintenance, whereas you would be paying maintenance under Sec 24 of HMA, 1955 till RCR would remain pending in the court. NO ACTUAL BENEFIT RATHER IT MAY TURN OUT TO BE LOSS MAKING PROPOSITION.

 

Argument 2 is that she would have to run to your city to defend this.

Wrong again, she would put a transfer petition in Supreme Court/ High Court and get the case transferred, the SC/ HC is always too lax in such matters, more so, if some other litigation is pending in her area.

 

Argument 3 is she would be spending money on defending it.

More often than not, the money would come from your pocket only, as she would claim litigation expenses from you u/s 24 HMA. Even if your wife is earning and she may not get maintenance, but litigation expenses is denied very rarely by courts.

 

Argument 4 is that it would stop her divorce Petition.

Sorry, both cases run on their respective merits.

 

Argument 5 is that it would be easier to get AB.

I have yet to listen to more absurd reason. Do we think that Judges are fools? Can’t they see through us? They face the same situation day in and day out. On one hand you are saying, listen My Lord, she is laying baseless and concocted allegations of worst nature, on the other hand you are saying, I am willing to stay with her. Also, please note that RCR can never be conditional.

 

Argument 6 is that it would be easier to get divorce if she does not comply with the decree.

Yes, on the face of it. There is a ground available for divorce, if there is a decree of RCR in your favour, which has not been complied with for more than one year, you have right to seek divorce on the same ground. But, BUt, BUT… and its not a small but, it’s the decree which has been enforced and executed under Order 21 Rule 32 of Civil Procedure Code, 1908. Hence, count the number of cases you would be fighting to meet your end. 1. RCR, 2. Enforcement of Decree, 3. Divorce and 4,5,6… n all revisions and appeals she would file.

Pitfalls, filing of RCR has its own pitfalls.
 

1. She might agree to come back, with 498-A pending on you. You can not refuse because the RCR is pending despite 498-A on you.
2. You have condoned all the offences till the date the RCR is pending in court. That means that if you are acquitted on a false 498-A on xx date, and you withdraw RCR on xx+1 date, you have legally condoned the false 498-A. Sorry pal, no divorce for you on this ground. Remember Criminal Cases generally run faster than civil cases.
3. You would be unnecessarily increasing the litigation and strain on your own self, when you are in court stating something, contradictory statements of yours can be used against you.
4. God Forbid, if you loose the RCR case. You are doomed. The court won’t entertain your divorce petition. You are at the mercy of your lovely 498-A wife to get divorce thereafter.
5. Even if you succeed, wife can file permanent alimony under S. 25 of HMA.

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com

 

PS: I would love to hear from my lawyer friends, any other reasons why one should file RCR.


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Congrats Mr. Kapoor, well explained.  I also concur with you on every point and I cannot add any other point.  I also discourage to file RCR either it is husband or wife.  But in respect of point 6, my opinion is somewhat different.  If husband does not have any valid ground as stipulated in law to seek divorce and he wants to take divorce for the reason he has some other "attraction" waiting in the wings for marriage or incompatiability with the wife, which is not a ground for divorce at present or has extra-marital relationship and wants to give legal sanctity to such relationship and for that wants divorce from the wife, he has no other option except to file RCR and follow all other steps, you explained very well,  howsomuch they are cumbersome.


Total likes : 4 times

 
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Partner/Advocate

RCR somehow shows ur intentions that tyou wanna live with ur wife.... if it is in ur favour.... you may get some linient view in 498 A case..... thats it.... 

 
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Legal Evangelist - TRIPAKSHA

Thanks Adv Chandu,

 

Praise from veterans and practitioners like you means a lot. I am humbled.

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com


Total likes : 7 times

 
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engineer

Shonee Kapoor, what are the benifits that may RCR may bring for Husband... could to think in this direction. Plz share your research details when ever research finishes... Thanks in advance.
 
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Legal Evangelist - TRIPAKSHA

Trust me Siv, I have not found any.

 

According to me, this is one of the most useless provisions of law and should be deleted from the statute. In fact Hyd High Court had deleted this provision once and for 11 months it was not enforceable.

 

However, lot of injustice has been done in the name of "Saving the institution of Marriage"

 

Regards,

 

Shonee Kapoor

harassed.by.498a@gmail.com


Total likes : 6 times

 
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Thanks for explaining, please tell in case what effect does it make if wife files RCR and 498 on husband... where husband refuses to come back.... will it give any benefit...

 
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engineer

Hi Angel, Wife can not file RCR and 498A. Because the action of wife by filing the 498A says wife is injured and she felt danger to her life with the attitude of the husband....refer section 498A IPC. If wife files RCR it reveals that husband is no more danger to her life and wife wants husband with her ....but not in jail.... If both are filed without husbands written statements in support of the RCR or 498A then wife attitude is clear that any one case of RCR or 498A is false and husband may approach High Court to quash the proeedings under section 482 IPC saying that wife does not want husand in jail....husband attitude is not danger to her life and the criminal case proceedings will not lead any useful purpose.
 
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Legal Evangelist - TRIPAKSHA

Siv, You would be surprised to note that there are many cases, where wife has filed both 498-a and RCR, thereby putting the husband in a catch 22 situation. Though there are no legal benefits, moral high ground is available to wife, again under the umbrella of "Saving the institution of Marriage." The husband should defend any such move tooth and nail. Regards, Shonee Kapoor harassed.by.498a@gmail.com

Total likes : 7 times

 
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add o cat

RCR has its own merits which was formulated for the old generations... where india was under developed with single meagre salary.. nowadays even females work and hence they are now misusing the legal system... unless legal reforms are effected, i doubt all our sections have any meaning in the first place... if the wife is running away in divorce, rcr is one way to stop it... and vice versa... but rcr is not truly effective because it provokes the other party to do mischief with law under 498 or whatever... due to the inability of our legal system and whole system snoring, offlate we read news that the husband has shot dead the whole family lot of wife in the court itself due to their mischief with law... under 498 dowry harassment marital rape attempt etc... now not just RCR, OUR WHOLE LEGAL SYSTEM IS MEANINGLESS DUE TO DELAYS... IMAGINE A COMMON MAN RUNNING AROUND COURTS FOR DECADES WHEN HE DOES NOT HAVE A TWO WAY MEAL FOR A DAY...

 
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