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kavita (Junior Advocate)     16 June 2011

DV Act and restitution of conjugal rights

My client is still in deep love with his wife who have filed case under D.V. ACT, 2005. We are fighting our level best. A completely false cases, based on false contentions. hmmm. The case has reached Evidence stage. The problem is, my client is keep asking me to file a case of RESTITUTION OF CONJUGAL RIGHTS when D.V. ACT CASE is still active and in progress. What could be the solution on it? Is it really possible to file a case of RESTITUTION OF CONJUGAL RIGHTS against his wife who has filed DV ACT against him?

I will be really thankful if stalverts and legal eagles out there could help me see the light.

Regards,

Kavita



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 4 Replies

Sandeep Aggarwal (Advocate)     16 June 2011

one can tell only after reading the grounds mentioned in the DV act case

Sandeep Aggarwal (Advocate)     16 June 2011

 

one can tell only after reading the grounds mentioned in the DV act case. Consult me on my mobile No. - 09041688967


Tajobsindia (Senior Partner )     17 June 2011

@ Author

1. There is no as such BAR that he can't file a civil suit to restitute his conjugal rights! Also Bharat Ratna ADV Act is not like S. 125 CrPC where she has to state reason to be separate form her husband ! It is a pure deadly “prime facie” clumsily  drafted Act.
2. Both Acts ‘intent and objects” are different and tomorrow if her Bharat Ratna suit is “dismissed” then what option one will suggest to him (Divorce and or RCR!) given to understand the facts that he is interested in establishing his conjugality all these days ! Anyhow the cat will be out once the finality of Bharat Ratna DV Act is in front of you and your client given to understand that it has reached Evidence stage and it is just matter of few more dates is it not so!
3. Going through ‘Grounds’ / understanding it are irrelevant at this stage as the matter is in advance sub-judice stage and anyhow you may not be going to spill it in open forums para wise is it not so !!!!

 

Adv. Chandrasekhar (Advocate)     17 June 2011

Kavitaji,

Before adverting to the problem what your client has, I talk first about your problem as we are fraternals in the same profession.  A junior advocate's job is the unenvious one - first he has to heed the wishes of his client, how unreasonable they may be.  second he cannot give his advice quite frankly to his client, because if the advice does not to his liking, he may leave the camp of the advocate even without paying for the services he already got. thirdly, at each and every stage, the junior advocate puts his step unsurely thinking every minute that had it been the senior advocate he would have taken a different step (whereas it is not so).

So my first advice to you is leave the tag of junior advocate.

Now, I come to the problem of your client.

If your client is in deep love and wants to resume married life with a wife who filed DV case, the solution DOES NOT LIE IN FILING THE CASE OF RETITUTION OF CONJUAL RIGHTS. Restituion of conjugal rights decree does not help the estranged couple to forget their differences and resume cohabitation.  On the other hand it has two (in your case three) distinct disadvantages.  Number one filing restitution of conjugal rights means he has condoned all the cruel acts perpetrated by her against him.  If in future, he wants to take advantage of her cruel acts in any matrimonial proceedings, he is not allowed to refer to any of her act till the date of filing of RCR petition. Number two, we presume that he succeeds in RCR case and he gets a decree.  But it cannot be executed forcefully.  If she wants to obtain divorce decree, she applies the divorce under Section 13 (1A)(ii) (you read it for proper understanding)  one year after passing of the RCR decree and obtain divorce.  You see the irony, your client wants restitution and for that you filed RCR, but she gets divorce taking advantage of your RCR case.  Number three, if she does not get maintenance in DV case, she may under Section 24 file an application for interim maintenance and litigation expenses in your RCR case and may likely to get away with maintenance order.  So, even though your client insists for RCR out of his unshattered love towards his wife, this is not advisable to file RCR in the given circumstances.  But, how you will convince him about this, is your skill(wo)manship.

Then what is the solution to this problem?

In the problematic situations like this, your first role should be to find out the real facts of estrangement.  for that you have to go out of briefs feed by the clients (some of them are also liars and do not tell the whole facts or conceal vital facts).  Once, you find out the real cause, you can judiciously come to conclusion that these differences can be sorted out or cannot be sorted out.  If they can be sorted out, then you have to rope the elders of both families together to solve the problem  and in between you intervene your self with inspiring intellectual inputs.  If the problems cannot be resolved, buy the time so that they themselves understand that there is no option except divorce and ask you for mutual consent divorce or contested divorce

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