Withdrawal of Restitution of Conjugal Rights

Querist : Anonymous (Querist) 28 October 2010 This query is : Resolved
Dear Experts,

Husband wants to file divorce but he filed a restitution of conjugal rights before. Is it mandatory to file a formal application before the family court to withdraw the RCR petition.

Or is it fine to make a submission before the judge that the husband withdraws the petition and make an endorsement that he will press for restitution as he has filed a divorce.

Pls clarify.

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Devajyoti Barman (Expert) 28 October 2010
First the husband will have to withdraw the application with leave to to sue afresh under 23 of cpc.Mere withdrawal of RCR does not entitle the husband to sue for divorce as the suit for restitution has already condoned the past acts of cruelty of the wife and the subsequent suit for divorce would lie only if he could show a fresh cause of action after withdrawal of RCR.

Querist : Anonymous (Querist) 28 October 2010
counsels,

In this case husband filed restitution wife then filed annulment of marriage after 2 years husband came to know he was de-frauded by wife hence he filed annulment.

Is it mandatory in this case to file a formal application for withdrawal of restitution suit. or is it fine to make an endorsement in the court for withdrawal. The accrued cause of action is that the full extent of fraud was found out by the husband after 2 years of the marriage.

In this case wife cannot seek any cost under section 24 since she herself filed an annulment of marriage on her own.

Please clarify.

Kirti Kar Tripathi (Expert) 29 October 2010
in this case, it is necessary to withdraw the RCR first and obtain leave from the court to file fresh suit by making formal application. unless the court permits. no further proceedings are possible in this regard. Section 24 is applicable even the wife has filed the case at her own.

Devajyoti Barman (Expert) 29 October 2010
Right.

s.subramanian (Expert) 29 October 2010
I agree.

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