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galsober@yahoo.co.in (def)     20 January 2011

Divorce on cruelty ground Vs RCR/DV

Husband filed for divorce on cruelty grounds. Wife submitted package of 498A+406 application in CAW cell + Sec 24HMA + DV ACT upon husband. She also says during mediation that she is willing 2 live with the hubby & child (its the husband who blew the whistle against his constant humiliation & spoiled matrimonial life). She is expected to file RCR in between too.

How this RCR will be treated in the backdrop of divorce application (on cruelty grounds) & pending 498A application?

In DV Act there is provision to restore wife to his house that too ‘under PROTECTION!’ Interim orders of DV also come within short time. What will happen to his cry for getting relief from her cruelty which he raised in original divorce petition?

Husband fears: God forbid if divorce is denied too, is there any way out so as to not to live with that wife who remained so cruel to him in all his married life? Is there any law which protects him to forcibly live with her?



 27 Replies

Avnish Kaur (Consultant)     20 January 2011

IS THERE ANY DISCREPANCY IN her pleadings in all these cases , just find it out .

valentine thakkar (advocate)     21 January 2011

If she files the maintenance case against you, she will win. If she files RCR in that case also she will have an upper hand. Both way U r the looser.

WrdRelative (def)     21 January 2011

I am just reading and getting some info around. 

@Avnish  kaur

  What can be a "DISCREPANCY"?Some examples?

@Valentine Thakkar

So in this case, what is/are the option/s /help for Mr. Galsober ?

Thanks

JAYESH (Sr. Executive HR.)     21 January 2011

@Valentine Thakkar

I'm posting this on behalf of my friend. He is suffering as follows:

Sir if husband had filed RCR first & very next day wife had filed divorce u/s 13(ai) then who had upper hand.

Some information: Husband had caught some intolerable & offensive SMS & e-mail of wife & due to that they had some quarrel. During quarrel husband had slapped his wife twice. Again during quarrel they had some push & pulls in that wife got injured by falling on edge of bed. Now all this is used against husband.

now sir can you please tell me who will have upper hand.

Raj Kumar Makkad (Adv P & H High Court Chandigarh)     21 January 2011

Mr. Thakkar & Mr. Jayesh! I am sorry to remind you that we are experts meant to reply legally the questions being asked by lay-man and we experts are not here to set score or to make cross-questioning with each other.

 

Anyway, in the given case, husband cannot be forced to live with his wife even if his divorce petition is dismissed and RCR filed by wife is decreed. If RCR decree is passed in favour of wife even then after one year, either of the parties can file petition seeking decree of divorce if no restitution of conjugal rigthts is established during this one year period.

 

Mr. galsober! You have nothing to worry except some monetary liabilities. You shall after all get divorce either by way of your present petition or one year after decree of RCR petition of your wife.

2 Like

galsober@yahoo.co.in (def)     21 January 2011

@avinash! >>IS THERE ANY DISCREPANCY IN her pleadings in all these cases , just find it out<<

I wil do it as u suggested. In div case, her reply is pending, case in mediation. She only submitted SEC24 application yet.

@v. thakkar >>If she files the maintenance case against you, she will win. If she files RCR in that case also she will have an upper hand. Both way U r the looser<<

Sorry, this seems to be a mere assumption. She is a govt employee & earning equal to me. Only child lives with me. In such case I donot think any chance of maintenence.

@ Mr Makkar: Thanks! You got the point I was worried. Is it a set law that I wont be forced to live with her even thro' DV Act order/failed divorce on my face? Plz put som light on maintainenece issue also in the backdrop of new facts.

Also discuss one more thing. In case of Husband & wife querrel & the humiliation goes on increasing, husband takes it intolerable to hear her dirty words, is there no way out? N number of compromises have failed. Usually querrels happen when no third person is around, may be during odd hours of night. How come he bring witness at that time when querrel is on?

From where he will bring proofs of her misconduct/refusal to cook food/ refusal to have s*x/absent from home etc? how then divorce will be granted??

manjit kalra (system eng)     21 January 2011

in case u find discrepancy in her pleadings in various cases  , utilise these against her .

Avnish Kaur (Consultant)     21 January 2011

manjit is right.

Avnish Kaur (Consultant)     21 January 2011

jayesh please start a new thread and write in detail, what injury , wat is being used against him?

valentine thakkar (advocate)     22 January 2011

Dear All,

I give my opinion based on past judgement and the trends in the courts. When we discuss maintenance we must remember that there is a law and rule to give maintenance to wife. That's the reason Sec. 125 CRPC and relevant section in CPC, G&W Act etc. were enacted. Not to grant maintenance is an exception and would be treated by court that way only. So in most cases maintenance would be granted. That's what I wanted to convey in one-liner. So far as RCR is concerned, no court in the world can force any spouse to cohabit against his/her will because it is unconstitutional, against the public policy and against the freedoms granted. However, in the special marriage act after continuous non-cohabitation for 3 years, divorce can be granted. Meaning thereby that non-compliance of RCR Order by the court would lead to success in divorce case by the opposite party. This is the summary of RCR and Divorce. Again there are different grounds for divorce which must be proved. In the Special Marriage Act, the spouses are required to come with mutual consent for divorce. Recently the Apex Court has recommended one more ground of Irretrievable Breakdown of Marriage as an additional ground. 

For another query about fights between wife and husband, it must be borne in mind that in case of cruelty wife will get the sympathy from the court. If she is hit, the order would be in her favour. Again recently the Supreme Court has stated that a couple of incidents of cruelty are sufficient to prove cruelty within the marriage. Again there is a concept of legal cruelty in which violence is not necessary, total indifference of the husband toward his marital obligations would be presumed by the court as cruelty.

I hope the above answers all queries and suffices to clarify the concepts of  RCR, Divorce, Maintenance and cruelty. So tread safely...

Bhaskar for SOCIAL JUSTICE (Legal & Social Activist)     22 January 2011

Sir,

 

If wife has already taken one divorce before this second marriage and she has taken big money in the first divorce then will this be of use to the second husband who was widower and if he files case of divorce on Cruelty as the wife is not ready to reconcile without adoption of her child from previous marriage and she is treating child of husband with cruelty and also husband has proofs of cruelty against him like througing bottles on him, breaking bone of hand, refusing s*x,refusing household work, abusing, abortions without his consent, slapping servant, saying that she loves her ex too much etc etc.*Proofs are in the form of exchange of mails with her on all these issues)

Please advise.

 

 

valentine thakkar (advocate)     23 January 2011

The conduct n character of the wife are revealed by the fact that she has taken money in exchange of her first divorce. Again she is insisting on adoption of the child from her previous marriage. She is behaving cruelly towards husband and there are contemporaneous evidence in the form of exchange of correspondence; all these put together becomes a good ground for divorce. Was there no precondition as to adoption of the child after marriage? I think you have a strong case for getting divorce on the ground of cruelty. Non-compliance to marital obligations amounts to legal cruelty, but all this you have to prove in the court. For this you require a very good advocate.

Bhaskar for SOCIAL JUSTICE (Legal & Social Activist)     23 January 2011

Thakkar Ji,

Adoption WAS NOT DISCUSSED EVEN FOR A SINGLE TIME BEFORE MARRIAGE but after marriage when she and her child didn't behaved properly then arguments started then she started making issue of adoption and registration of marriage. 

Registration was not a problem as the marriage was solomonised in the Arya Samaj Mandir but doing adoption when she and her child are not behaving properly and on small small issues stop preparing food, take care of house , talking, s*x and went to her parents house ,how can adoption be done.

Is she entitled for maintenance if RCR or Divorce is filed by the husband.

She has Rs.20 lac in bank deposits and she is also earning around 20,000 per month which she confirmed on mail also but no direct proof is there as she may be taking salary on anyone elses name or in cash, ths same she did with her ex also and use to take money on her cousins name which she herself told me and i have proof of that earlier statement also with me.

Please advice.

 

 

valentine thakkar (advocate)     24 January 2011

You have a very strong case.

1. You have to find out the source of her income and prove the amount she is getting. Find out some paper, some secret deal, bank statement or witness.

2. Show proof that she has a huge bank balance and she is getting interest on it.

3. Prove that she took a huge amount for her divorce.

4. Prove that she is able to maintain herself and her child.

5. Request the court by application for custody of the child in case she asks for child's maintenance. Prove that the welfare of the child lies with you as she is temperamental and has doubtful character. She changes her mind every now and then and that she cannot give good education, sanskars, bright future etc. to your child.

Than and only then you will have a sweeping success over all claims of your wife. For all this you indeed need a good advocate.


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