Hindu marriage act

Asst. Law (PSU)

Can one take a principle plea for restitution of conjugal rights under section 9 of the HMA.,1955 and an alternative plea for judicial separation under section 10 or divorce under section 13 on the grounds of desertion for two years simultaneously in the same petition,(in case the plea under section 9 of HMA does not fructify.) The rationale for the same being that if the plea for restitution of conjugal rights does not fructify due to the spouse being not amenable to that, can the husband ask for a decree of judicial separation or for that matter divorce under the same petition as an alternative plea.
 
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On the face of it, it sounds to be reasonable.  But, when a spouse (suppose husband) files Section 9 RCR, his thrust in the body of the petition would be that the wife deserted him  without having any reasonable cause.  Then, it would be difficult for him to seek either divorce or judicial separation on the ground of cruelty or any other ground available under Section 13 or 10 of the Act. Because, the grounds under Section 13 and 10 are contra to the grounds under Section 9 of RCR.  Suppose, in his RCR petition he alleges a number of cruel acts perpetrated by his wife and alleges that she left without having any reason and he is willing to take her back, it amounts to condonation of cruel acts and hence on that reason also, he will not be entitled to divorce or judicial separation.  As such, such alternative prayer is not possible if you combine Restitution prayer with divorce/judicial separation prayer.


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Now I know why litigants rosm court endlessly. @samarpan isnt correct. Go with advise of Ramesh ji.
 
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Asst. Law (PSU)

Originally posted by : Samarpan (M)9599874404
On the face of it, it sounds to be reasonable.  But, when a spouse (suppose husband) files Section 9 RCR, his thrust in the body of the petition would be that the wife deserted him  without having any reasonable cause.  Then, it would be difficult for him to seek either divorce or judicial separation on the ground of cruelty or any other ground available under Section 13 or 10 of the Act. Because, the grounds under Section 13 and 10 are contra to the grounds under Section 9 of RCR.  Suppose, in his RCR petition he alleges a number of cruel acts perpetrated by his wife and alleges that she left without having any reason and he is willing to take her back, it amounts to condonation of cruel acts and hence on that reason also, he will not be entitled to divorce or judicial separation.  As such, such alternative prayer is not possible if you combine Restitution prayer with divorce/judicial separation prayer.

So the remedy should be either to withdraw RCR petition and file a fresh petition for divoce??

Factually, what has happened is that this is a case of my friend. He filed RCR 3 years back and has had only 6 dates granted by the District Court. In the second date, the case was referred to mediation centre of the same court, but the mediation failed. His wife is not willing to come to his home and has stated the same in the court. But the Judge astonishingly refused to take this statement of her on record!! and the judge admonished my friend. The wife is not willing to divorce him unless my friend pays Rs 35 lakhs to her.  On the top of it, my friend lost his job and currently has no source of income.  Advice solicited. Also is there any remedy for misconduct of the Judge in not recording the said statement of the wife. 

 
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N.A

Originally posted by : gautam arora
 but the mediation failed. His wife is not willing to come to his home and has stated the same in the court. But the Judge astonishingly refused to take this statement of her on record!! and the judge admonished my friend. The wife is not willing to divorce him unless my friend pays Rs 35 lakhs to her.  On the top of it, my friend lost his job and currently has no source of income.  

 

When your friend has lost his source of income how will he manage to continue RCR, because it obvious she will file counter petition of sec 24 of HMA for maintenaince. and firstly court will decide the application of sec 24 of HMA

 
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Asst. Law (PSU)

Originally posted by : Sachin



Originally posted by : gautam arora



 but the mediation failed. His wife is not willing to come to his home and has stated the same in the court. But the Judge astonishingly refused to take this statement of her on record!! and the judge admonished my friend. The wife is not willing to divorce him unless my friend pays Rs 35 lakhs to her.  On the top of it, my friend lost his job and currently has no source of income.  





 

When your friend has lost his source of income how will he manage to continue RCR, because it obvious she will file counter petition of sec 24 of HMA for maintenaince. and firstly court will decide the application of sec 24 of HMA

She has not filed for maintenance, as her plea would be unmaintenable as She is working as a Gazetted Officer with Govt. of India. 

 
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When she is not willing to live with her what is the purpose of filing RCR. 


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^^^ That fcuks like u won't understand as you r not a lawyer.
 
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If he is hopeful that the RCR case would go in his favour, continue it and after getting favourable RCR decree, file execution and wait for one year, then apply for divorce on the ground of non-compliance of RCR decree by wife.  Otherwise, file divorce case and pursue it. In the meantime, if both parties come to compromise, go for mutual consent divorce.

 
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