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Lord Ganesha (service)     12 February 2012

Filing of rcr under sec 9 and divorce under sec 13

Can the Cases for Restitution for Congugal Right under sec 9 and Divorce under sec 13 be filed parallel at the same time at two different courts ( places) ??????



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 4 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com))     12 February 2012

yes but not by the same party. 

mukesh gupta (advocate)     12 February 2012

obviously, there is no such bar as the matter in issue in both the petitions are different and hece no bar of res sub-judice or other is applicable.

Jamai Of Law (propra)     12 February 2012

Huuummmm!,

 

 

But it is mutually destructive plea although there is no plea in bar such as res subjudice.

 

 

Are you saying that you want to make aplea that "Either do something to get my marriage reconciled, or else give me divorce!!!!!"

 

Then this is already provisioned in case there is no restitution after such decree is passed.

 

 

 

 

But making a plea of divorce means that person has now made up mind that marriage bond ought to be broken once for all and no looking back or dual mind on it.

 

Then how can one take amutually destructive stand? 

 

But still as padam said it may be maintainable based on circumstances of the case.

 

 

Decree of Divorce: it is a declaratory decree. There is hardly anything to execute it.

 

Decree of RCR: it is like (quite nearly) a mandatory injunction  asking the performance of some specific act, but execution can not be enforeced but alternatively penalties may get attracted, and after the laspse of prescribed time of 1 year DH accrues with a ground for divorce.

 

 

If the divorce case is purely based on 'desertion' or 'constructive desertion' then (otherwise its very nasty to file such suits) ...............

 

To save on time, one can file a plea of divorce parallelly and ask the same to get 'sine die' until decree of RCR creates a new ground for divorce!! ... 

 

The ONLY reason is that 'desertion' may looked from the perspectives of RCR.


k.chandrasekharan (advocate)     13 February 2012

Mr.Bharat Chugh has given one line reply which is sound. Mr.Jamai of Law's answer is expansive but to the same effect. Mr.Padam's answer too is correct, though techically only.

The petitioner being the same person, there can not be alternative pleadings, though in civil law, alternative reliefs can be prayed for. The pleading for RCR is to be reflective of the Petitioner's state of mind for saving the marriage. In divorce proceedings, the state of mind as to the conclusion of the irretrievability of marriage has to be reflected in the pleadings. Both these are mutually contradictory. The clever respondent can get both the cases thrown out by the court. The petitioner would be left sulking, as further remedy is remote. Marriage subsists in law and no new marriage can be contracted. A lonely life has to be led.

Even in the case for divorce, efforts taken to save the matrimony by the petitioner has to be narrated to establish bona fides, if the objective is to succeed. So, engaging in both cases simultaneously would be counter-productive.

It is empirically found that defending RCR case is mostly difficult. So the petitioner normally succeeds unless intentional suppression of acts of omission and commission, on the part of the petitioner suppressed in the pleadings, are brought out in the respondent's evidence effectively.

Patience pays. So RCR is the best course for the petitioner.


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