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Confusion regarding non-compliance of RCR decree

Dear learned members,

I am a working lady who has been driven out of her matrimonial house last year by her husband and in-laws. After a fews days my husband asked for mutual divorce. When I declined and wished to continue our marital tie, he threatened to file for contested divorce as soon as possible. My husband is still hell-bent upon divorce and not ready for any negotiation. When I consulted my lawyer he told to file for Restitution of Conjugal Rights, which I did. My husband hasn't filed for divorce yet, but has detached all contact from me and doesn't bother to appear in court either for RCR hearing. I guess I will get an ex-party decree.


But I am afraid, after I get the RCR decree and enforecement occurs, that is, I am dropped at my matrimonial house under police protection, my husband and in-laws will again torture me and I will be forced to return to my parental abode once again.


Now, under section 13 (1-A)(ii) of HMA 1955, it becomes a ground of divorce if conjugal rights is not restored within one year of RCR decree. I am afraid my husband will then file for divorce on this ground and can easily get his mission accomplished. When I brought this to my lawyer's notice, he said only the RCR petitioner can claim for divorce on this ground, not the respondent. He opined that "One cannot claim the advantage of his/her own fault.....If your husband doesn't bother to restore conjugal rights with you, thats his fault, not yours. You can claim divorce on this ground, not him"... Is he right?....I consulted a few more lawyers on this confusion and they all further confused me. Some lawyers said it is clearly written in section 13 (1-A)(ii) of HMA 1955 that "Either party to a marriage" can claim divorce if RCR decree is not restored, others said that there are preambles to this ground of divorce which needs to prove that the party filing for divorce is not claiming the advantage of his/her own fault.


I am hearing self-contractdictory opinions on this ground of divorce. Can anyone please give me the true picture?


 13 Replies

Jai Karan Nagwan (consultant)     08 January 2015

Don't worry since the RCR proceeding is on, your husband can not counter claim divorce on the ground of desertion. If he do that he is not going to gain anything out of it, but yes the suggestion given by lawyers that your husband can file divorce on above section and those section are CRUELTY & change of religion, if you have not changed your religion, should not worry. At the same time divorce on these both grounds is very tough and very easy in second and your husband would require to prove beyond reasonable doubt. Most dangerous ground in such situation can be divorce on character ground. lady should have and maintain high character. This has nothing to do with your query, but general caution for all victim ladies.


Dear Jai Karan,

Thanks for your reply, but my query still stands unanswered. I don't think Section 13 (1-A)(ii) of Hindu Marraige Act 1955 has got anything to do with desertion, cruelty or change of religion. It calls for divorce if RCR decree is not restored within 1 year. Please refer the quoted text below from HMA for your convenience. Request you to go through my original post all over again and if possible clear my confusion.


"(1-A) Either party to a marriage, whether solemnized before or after the
commencement of this Act, may also present a petition for the dissolution of the
marriage by a decree of divorce on the ground-

(ii) that there has been no restitution of conjugal rights as between the parties to
the marriage for a period of one year or upward after the passing of a decree of
restitution of conjugal rights in a proceeding to which they were parties."

Jai Karan Nagwan (consultant)     08 January 2015

Excuse me, misreading. You are right. RCS is in process and after decree of restitution, If there is no restitution, parties can file for divorce and again life long litigation.


Thanks again Mr. Jai Karan for ur response.


1) If there is no restituition, will my husband get divorce even if the restituition has been denied by him?

2) Now scared of the impending danger/torture once I return to my matrimonial house with RCR decree, now I have this feeling that perhaps lodging a general diary in the local police station would have served as a better alternative for me instead of going for RCR? I know its all in the past, but just asking. If in that general diary had I documented all the truth like my in-laws throwing me out of my matrimonial house, husband asking for divorce, total negligence towards me inspite of knowing I am eager to retain the martial tie, etc would have equally served as a legal defence for me in case my husband had filed for divorce on false cruelty grounds. Right? Please confirm. I think it would have been enough to LEGALLY prove that I am inclined to retain this marriage, instead of going for RCR. Am I right? Please share your views...I won't had to fearfully return to my matrimonial house, yet manage to save the marriage. Furthermore, since it would have been a general diary (not FIR), my husband and in-laws would have remained totally ignorant of this action of mine....Had I made a great mistake? Had I created a ground for divorce while trying to save the marriage?

3) What will be my situation legally if I WITHDRAW this RCR case now? Will this action go against me when my husband files for divorce in future on false cruelty grounds? 1st hearing of RCR is done, my husband didn't appear.

Jai Karan Nagwan (consultant)     08 January 2015

Point No. 1. Your efforts of saving this relation by filling RCR, placed your husband on advantageous footing. Surely your husband will appear and will place his divorce plea, since he has no fear of criminal action now. If this would have been 498a and DV, he would have filed RCR and relation could have been restored, yet unwillingly. Straight trees are cut first, hope it's apply here. Have listen many crook ladies, who files false case against their husband and gets benefits of their crookateness. However, not to repent for past, it's passed. Don't know which place are you from, yet My suggestion, consult good lawyer of your city. After listening your story, he can change the game.

naveen (business)     08 January 2015

When their is no love nd respect in between each other, nd ur thinking nd interests won't mach than their is no point in leading life together forcefully, it's better to depart in the interest of ur personal life nd happiness instead of suffering life long with unwanted relation or partner. U too think seriously can u be happy with court orders nd forcibly entering house when their is no respect or love towards U. Ur from which place, wat happened in between u?


Dear Jai Karan and Naveen, many thanks for your time and effort


Jai Karan, can you please reply to the three queries I raised in my last post?


498 won't apply for me. I have no evidence for it. I have never been subject to any physical violence, no dowry, no jewellery dispute. Yes, some false allegations have been made against me during our togetherness and there has been some verbal tiffs, but I have no evidence for those. Judgement will be granted on evidence, not allegations. Infact, nothing so serious has happened between us so as to term as "cruelty", neither from his side, nor from my side. Yes, the only form of "cruelty" I can allege against him is the intense mental sufferings that I have been subject to after being driven out of my matrimonial house and subsequent proposal of divorce. My 498 case would have been dismissed had I gone for it.


If I had filed Divorce case, my husband would have too gladly accepted it. He is eager to go for mutual divorce. He just wants to disembark me off his shoulders; no reconciliation, no second thought.


And if he had filed for RCR, I would have been in the same boat as I am now - he would have denied restituition and filed DV under section 13 (1-A)(ii) of HMA. Infact, in that situation scales would have been more titled in his favor since he would have been the RCR petitioner, not me.


I still believe considering all pros and cons, that just lodging a general diary in local police station (stating I want to reunite) and waiting for my husband's DV petition (on cruelty ground) would have been the best possible move for me to save the marriage. He won't have any evidence of "cruelty" against me and would have surely lost his DV case......Please share your opinion.


BTW, I am from a metro city of India. Naveen and Jai Karan, if you are eager to know my entire story and the real reason of my husband's behavior, you can share your email and/or contact no....Don't want to disclose in a public forum.

gd dy (gd dy)     16 January 2015

Discussion > Family Law > Divorce > Confusion regarding non-compliance of RCR decree
as well
Discussion > Family Law > Divorce > ALERT: a Crooked way to obtain Ex-Parte Divorce

content of both threads r contradictory to each other.
moreover the modus operandi of getting ex-partee may b possible in story and film.
However nothing is impossible.
Hw tht only expert and modus operator can inform u.


Dear Mr "gd dy",


Reply to ur "contradictory content" concern has been posted in the thread:

Discussion > Family Law > Divorce > ALERT: a Crooked way to obtain Ex-Parte Divorce

gd dy (gd dy)     16 January 2015

in Reply to ur "contradictory content" concern has been posted in the thread:Discussion > Family Law > Divorce > ALERT: a Crooked way to obtain Ex-Parte Divorce.

my reply is generic. master mind of modus operandi can b any one. only master mind can inform its intricacy.
fail to understnd why u tk personal.

Krishnaya vasudevaya (--)     17 January 2015

Hi Seabreeze,


I guess we both sail in the same boat right now. Our stories also almost the same. There was no My wife never been subject to any physical violence, no dowry, no jewellery dispute. Yes, some false allegations have been made against me during our togetherness and there has been some verbal tiffs, but my wife have no evidence for those. Judgement will be granted on evidence, not allegations. Infact, nothing so serious has happened between us so as to term as "cruelty", neither from his side, nor from my side. Yes, the only form of "cruelty" my wife can allege against me is the intense mental sufferings she had. 


She is too scared because I am diabetic. I did a blood test after marriage since I met with an accident and knew that I am diabetic. These made her so scared that she ran awar from my home. She is not coming back and filed maintenace case against me under section 125. I want to continue the maritial life but she is not interested. She wants the divorce but she wants to put words in our mouth and expects me to initiate it. Not sure where my life is leading. 


Based on my previous posts in this forum, I was suggested to file RCR from my place. She made all false allegations in the maintenance case that we took all her jewellery, made physical torture and beaten her. She needs 25K maintenance from me whereas our lifestyle was not even close to 50% of the maintenace she is claiming. She doesn't even belong to metro city yet she demands a very high maintenance. Her parents also encouraging her to do all these things. 


Why parents don't educate their daughters to continue the martial life? Parents themselves are spoiling the life of their children. Even though they knew that my wife's first engagement was broken and this is going to be the second break-up. 


what do you think? 


don't these people scared of the society that who will marry her daughter for the third time or there must be something fishy going on (somekind of past love affair) which surfaced back. 



gd dy (gd dy)     17 January 2015

Discussion > Family Law > Divorce > ALERT: a Crooked way to obtain Ex-Parte Divorce

one more thing.
excuse of not having ground fr filing any false case and tk great risk is not swallowable.
of course on being caught red handed any culprit gv excuse like this thgh not swallowable to even patient of mental hospital.
yes nothing is impossible bt the excuse is not swalloable.

bt hw tht only person behind this type of modus operandi tell u.

Krishnaya vasudevaya
both of u should hv consult to any physcian to knw wht precaution to b taken as well its side effects. also get the report frm diff. lab bcoz there r so many instances due to evn slight mistake of concerned person result of report may b differed.
hop in second report frm other lab u r normal.



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