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ashoksrivastava (scientist)     27 January 2013

Is rcr decree executable against wife

Dear sirs pl. help me in following query about which I have received conflicting opinions from experts

:IS RCR decree executable or not against wife?order21 rule33cpc speaks about executionprocedure only when its against husband Iam quoting from bombay high court judgement

Bombay High Court

Vijendra B. Singh vs Uma Vijendra Singh on 21 April, 2010

Bench: A.S. Oka

 

"sub Rule 1 of Rule 32 of Order XXI of said Code provides that a decree for restitution of conjugal rights may be enforced by attachment of the property of the party against whom the decree has been passed. This is the mode prescribed for executing a decree for restitution of conjugal rights under Rule 32 of the said Code.

4. Rule 33 of Order XXI of the said Code reads thus:- ORDER XXI : EXECUTION OF DECREES & ORDERS

Rule 33 : Discretion of Court in executing decrees for restitution of conjugal rights.-

(1) Notwithstanding anything in rule 32, the Court, either at the time of passing a decree against a husband for the restitution of conjugal rights or at any time afterwards, may order that the decree shall be executed in the manner provided in this rule.

(2) Where the Court has made an order under sub-rule (1), it may order, that in the event of the decree not being obeyed within such period as may be fixed in this behalf, the judgment-debtor shall make to the decree-holder such periodical payments as may be just, and, if it thinks fit, require that the judgment-debtor shall, to its satisfaction, secure to the decree-holder such periodical payments. 7

(3) The Court may from time to time vary or modify any order made under sub-rule (2) for the periodical payment of money, either by altering the times of payment or by increasing or diminishing the amount, or may temporarily suspend the same as to the whole or any part of the money so ordered to be paid, and again revive the same, either wholly or in part as it may think just.

(4) Any money ordered to be paid under this rule may be recovered as though it were payable under a decree for the payment of money."

Sub-Rule 1 of Rule 33 of Order XXI of the said Code starts with non- obstante clause. Thus, Rule 33 will have overriding effect over the rule

32. Under Sub-rule 1 of Rule 32 it is provided that the decree for restitution of conjugal rights can be enforced by attachment of property of the party against whom the same is passed, provided, the party had an opportunity of obeying the decree and has willfully disobeyed it. Thus, what is contemplated by Sub-rule 1 of Rule 32 is willful disobedience on the part of the party against whom such a decree has been passed. However, Rule 33 overrides Rule 32 because of non-obstante clause and it confers power on the Court passing a decree either at the time of passing a decree against the husband for restitution of conjugal rights or any time afterwards to direct that the decree for restitution of conjugal rights shall be executed in the manner provided in Rule 33. Thus, it is not necessary that at the time of passing a decree for restitution of conjugal rights, the Court has to pass an order that the decree shall be complied with in accordance with Sub-rule 2 of Rule 33. Even after passing a decree, the Court can issue a direction that the decree shall be executed 8

in the manner provided in Rule 33. In such event, under Sub-rule 2 of Rule 33, the Court has power to direct that in the event the decree not being obeyed within such a period as may be fixed in this behalf, the judgment-debtor shall make to the decree-holder such periodical payments as may be just. In a given case the Court may require the judgment-debtor to secure to the decree-holder such periodical payments. As distinguished from Sub-rule 1 of Rule 32, willful disobedience is not a condition precedent for passing an order under Sub-Rule 2 of Order 33 directing the judgment-debtor to make periodical payments to the decree- holder. The Court gets power when it is found that the decree has not been complied with within such period as may be fixed in this behalf. The power can be exercised under Sub-rule 2 of Rule 33 once the "

I amnot sure if rule33 makes decree unexecutable sgainst wife apex court in sarojrani vs sudarshan kumar case has observed"

It is significant to note that unlike a decree of specific performance of contract, for restitution of conjugal

rights the sanction is provided by court where the disobedience to such a decree is willful i.e. is deliberate, in

spite of the opportunities and there are no other impediments, might be enforced by attachment of property.

So the only sanction is by attachment of property against disobedience of a decree for restitution of conjugal

rights where the disobedience follows as a result of a willful conduct i.e. where conditions are there for a wife

or a husband to obey the decree for restitution of conjugal rights but disobeys the same in spite of such

conditions, then only financial sanction, provided he or she has properties to be attached, is provided for. This

is so as an inducement by the court in appropriate"  still some experts on the basis of rule 33 say its executable only against husband. pl help

 

 



Learning

 5 Replies

Goutam Prasad (Advocate)     27 January 2013

In stead of discussing law, I would like to inform you that RCR decree against any party is practcally non-executable, if one party remains adament. It is because, for execution, you can only try for property attachments or civil imprisonment, but even then if he or she remains adament then no one can force to live togather.

In such situation, the other party gets ground of divorce and the same becomes easy way for divorce as this situation is easy to prove.


Goutam Prasad
Advocate
Supreme Court of India

Mob: 9810753838

https://www.aegisjurist.com

https://www.facebook.com/aegisjurist

ashoksrivastava (scientist)     27 January 2013

Sir if any party files for divorce on grounds of no cohabitation after 1 year of passing of rcr decree both parties blame each other for non restitution despite their best efforts.In such cases several high courts have questioned as to why the person winning rcr decree didn't go for its execution.My question is whether husband is barred by law to file execution petition against wife or not? atleast executing court will send warrant to wife wherein she will have to record her intention to join or otherwise and thus  there will be less scope for false blame

Msk-need -nuetral- laws (self)     28 January 2013

Yes, Ashok, you should go forward for its execution, but failing to respond to it within 90 days, go ahead with divorce, no maintenance for wife and ground for dvorce in contested situation.

sandeep (pvt service)     01 March 2015

@adv gautam prasad.......can you please shed some light on RCR decree passed in favor of wife (Wife has filed RCR, and in the event, if she wins it, then what happens to the husband? ) request your kind advise...thank you

Adv. Chandrasekhar (Advocate)     01 March 2015

even though the question was addressed to Sh. Gautam, my reply is as follows:

1.  She can file for execution and seek attachment of property in the event of his non-compliance. 

2.  After one year, she can file divorce petition on  the ground of non-compliance of RCR decree.

3.  Even the husband has got a right to move divorce petition after one year on  the ground that RCR decree passed in favour of wife has not been complied.  Even though he is a defaulter, he will be granted divorce. (There are divergent opinions on this point, but most of the courts including the S.C. said that defaulting husband has got right to file divorce petition on this ground and get the divorce decree).


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