Upgrad LLM

counter claim + restitution of conjugall rights


Respected Gurus,

I have a strange situation :

I have filed a divorce OP in the year 2014, later without filing counter/WS my wife opted for RCR(Restitution of conjugal rights) , as recently I am aware that my wife cannot file an independent petition U/S 9 of the HMA as counterclaim not maintainable without written statement. is it correct please suggest me 

 

 
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Advocate

The facts, as posted, lacks clarity. What is the opinion of your advocate?

 
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Respected Sir, 

My concern here is wife cannot file counterblast my divorce OP with a new petition via Restitution of Conjugal rights, she can first file the written statement/counter opposing my divorce OP, then only she can counterclaim whether it may be via with the same written statement or after the written statement. 

But without a written statement, she can not counterclaim any relief as per Order 8 rule 6A & 6B, my lawyer was not aware of this he said he will through.

Just want to understand the court went in a opposite direction, by numbering the RCR and then accepting her written statement in my divorce OP. 

My point is very clear the RCR not maintainable as per LAW.

Please clarify.. whether my understanding is correct or not ?

 

Thank you.

 

 

 
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Advocate

In my understanding RCR does not constitute a counterclaim.

 
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Advocate

If notice of case filed by you stand duly served upon your wife then she is bound to file her written statement in case filed by you and if does not file her Written statement within specified time then her defence is liable to be struck of and case filed by you is liable to be decreed. However, your wife has independent right to file counter claim in pernding case filed by you and the counter claim is required to be filed along with reply.  Your wife also has right to file independent right to file seperate and independent petition u/s. 9 HM Act but such petition does not amount to counter claim as both petitions are seperate and independent. 

 
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Respected Siddharth Sir,

Thanks a lot for your thoughts on this!

Since my wife had introduced her cause of action in the Section 9 petition of HMA based on my divorce petition, therefore she ought to file the Writtenstatement/defense/counter in my divorce OP.

After the latter, she can opt either independent petition U/S 9 of HMA

or 

Counterclaim along with the WS 

or Counterclaim after filing the WS also.

 

First she needs to file the WS, correct me if I am wrong.

 

Thanks a lot for your precious advice.

 

Thank you.

 

 

 

 

 

 

 
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Advocate

Both proceedings under section 9 HM Act and Divorce petition are seperate and independent proceeding. So your wife has independent right to file petition under section 9 HM Act while you have also independent right to file divorce petition. Your wife is legally bound to file her written statement in your divorce case while you are also bound to file written statement in petition under section 9 HM Act filed by your wife. Your wife along with her written statement can file her counter claim in your case.
 
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exec

she has all the right to file a section 9 case, however, it is imperative that she files a written statemen/reply to your divorce petition too. both divorce and RCR section 9 are like sister cases which have a bearing on the other case, so, you file an application in court asking for the opposite party to file her reply, failing which, you can proceed without her reply and ask for the court to give a 'no say' order and proceed further in your case. 

things to  keep in mind:

do you really want to keep her or divorce her (make up your mind)

have you received a copy of your RCR case and the summons?

if yes, have you filed a reply to her RCR petition,? if no, file the reply along with a certified copy of your divorce case running in another court.

ideally, both the cases can be clubbed together and go hand in hand in one single court

you can ask for dismissal of her RCR case as you have already filed for Divorce prior to her RCR case

second thing:

has she filed for 24 hma (maintaience) 

you have to make preparations for HMA 24 section 125 

she wont file DV as she has filed RCR

 

 
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