rajiv_lodha (zz) 01 August 2012

Rcr n subsequent divorce

Husband files Sec-9 HMA, which proceeds exparte as wife eludes summons. After 2 yrs of legal run case decided in favor of husband. Husband wants divorce now:

1) Shud he wait for 1 yr & then file for divorce.

2) Shud he apply for execution of this decree & then file divorce after it fails. How much time will be involved?

I also want to know the legal stand – If a husband gets RCR in his favor but wife fails to join him for 1 yr after RCR. Now he files for divorce on the grounds of non-execution of RCR decree, wife agrees to cohabit?? Hubby wants divorce that she failed to join him even after 1 yr of RCR, LAW says that u did so much effort on record to get ur wife back, when she is now ready to join u, then why u asking 4 divorce, go & live with her!

Shudn’t it be that hubby be given divorce even if wife is ready to join at this stage. Doesn’t the law say to her “Its too late madam, u have missed the bus. Hubby is entitled to divorce now”?

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3 Replies

Tajobsindia (Senior Partner ) 02 August 2012

1. It is right to say its too late madam, u have missed the bus. Hubby is entitled to divorce now.

rajiv_lodha (zz) 02 August 2012

Thanx Tajob, But what the law states? Any relevent judgments available?

Tajobsindia (Senior Partner ) 03 August 2012

1. See when you filed RCR the burden was on her to state satisfactorily to Court “refusal to stay away from husband for cohabitation and consortium”. Since she dindot prove it the Court granted Decree in your favour. Restitution decree is a peg on which to hang a divorce.

2. Now you are executing your decree but the matrimonial relationship has been terminated though marriage is subsisting. The marriage is in name only and not in substance. In law and not in fact.

3. Now at this stage if she says that "she wants to resume cohabitation and consortium with you" then the policy underlying the legislation is that it is not conducive to the public interest that men and women should remain bound together in permanence by the bonds of marriage the duties of which have long ceased to be observed by either party and the purposes of which have irremediably failed.

This is the law based on your facts.