Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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sandeep (pvt service)     13 October 2014

What if rcr and divorce case run in the same court with same

my query is: what if RCR and divorce case runs in the same court with the same judge:

i have been through the past replies in the forum, almost all people have advised that both the cases run on their own merits, but what happens when the same judge is appointed for these two different cases irrespective of who files what case, RCR or divorce, 

if RCR is dismissed, then what happens to divorce

and if divorce is lost, then what happens to RCR

will the other case still run with the same judge.? and is is relevant who files first. divorce or RCR, ?

this is one question, no one has been able to answer with confidence, my own lawyer is confused on this, hence request you to please advise. 



Learning

 18 Replies

Adv. Chandrasekhar (Advocate)     13 October 2014

Who filed the case first is totally immeterial.  The judge has got following options after evidence is taken and arguments are heard: 1.  He can dismiss both RCR and divorce petitions; 2.  He may allow RCR and dismiss divorce; 3.  He may dismiss RCR and allow divorce.  4.  HE CANNOT ALLOW BOTH RCR AND DIVORCE.

1 Like

Adv k . mahesh (advocate)     13 October 2014

RCR is restoration of conjugal rights means wife or husband is asking the court to make the other party to come and stay with other party legally 

divorce is ending the marriage without any bonds 

how come both withstand legally and under what law

if either party want to save the marriage and live happily then withdraw divorce 

and if both want divorce as both are not happy with the marriage then withdraw rcr by giving the reference of divorce case details in the petition filed in the court 

1 Like

sandeep (pvt service)     13 October 2014

thanks adv mahesh and adv chandrashekhar....appreciate your replies. what i wanted to know is, does winning of one case (either divorce or RCR) automatically dismiss the other by default or both run concurrently even if one is dismissed>

Adv k . mahesh (advocate)     13 October 2014

answer is in your query itself

1. say divorce is granted and what is the use of RCR when you both does not have status of marriage as per law as you both are divorced legally  

2. say RCR is granted what you will do with Divorce case in hand as you both try to save your married life and live happily 

so decide and keep one case which is required in your life and fight for that case 

sandeep (pvt service)     13 October 2014

thank you adv mahesh, actually my crux of the question is different, maybe you have not got it right. just to make it more clear: with regards to your point number 2, that given scenario will exist when the other respondent spouse accepts the RCR, and both decide to stay together, but what will happen if the other spouse still is adamant for a divorce inspite of RCR been awarded to the other spouse? so what will happen in that scenario? especially when the same judge is deciding the case? when he himself has awarded the RCR decree to (say: the wife) and husband is still adamant for a divorce and has already filed for a divorce in the same court, then what will happen to his divorce petition, when the RCR has been awarded to the wife before deciding on the divorce petition of the husband........? t

Adv k . mahesh (advocate)     13 October 2014

before or after awarding RCR you can file a petition in the court stating both parties want divorce and both parties should appear before the court and file the petition mutually 

its nothing but mutual consent divorce as both parties want divorce and no reconciliation wanted so better before court awarding rcr withdraw the rcr petition and contest divorce and also you both can file mutual consent divorce if the divorce petition is more then one year old and your mcd will be granted within three months time 

talk to your lawyer about this and their are lot cases you can browse in indiakanoon.org

Adv. Chandrasekhar (Advocate)     13 October 2014

The judge who is allowing the RCR will definitely dismiss the divorce between the same parties.  Similarly, if the judge is allowing divorce, then definitely dismiss the RCR. He has no power to allow both RCR and divorce. 

Adv Archana Deshmukh (Practicing Advocate)     13 October 2014

There is no need to be confused, the matter is very simple... both the cases will run concurrently like 2 suits clubbed together or like sister suits. The judge will either allow divorce and dismiss the RCR or allow RCR and dismiss the divorce petition or can even dismiss both the cases but he will never allow both the cases.

1 Like

sandeep (pvt service)     13 October 2014

@adv archana madam, thank you for your reply to my query, you have understood my query in totality, actually while going through a lot of threads here, i found that many lawyers have suggested that both RCR and divorce run on their own respective merits. but as you suggested either one of them will get dismissed, but this is the scenario when one judge will here both the cases. but what happens if both cases are filed in two different courts. many lawyers here have advised that even if RCR is won by one spouse, the divorce case of the other spouse will still continue as both are two different cases. so: if one judge hears both cases: either of the two gets dismissed if two judges are hearing two different cases, then even if RCR is won by one spouse the other spouse can keep fighting his or her divorce petition in the other court...am i correct.i he or she is adamant on divorce even if the other spouse has won RCR... i have gone through many threads of eminent people here like shonee kapoor, mr tAJOBS, ESIS, and other experts here, almost all have said that these are two different cases, and will run parrallel, and if one wins the RCR, the other divorce case will still run as the other spouse still wishes to seek divorce........

sandeep (pvt service)     13 October 2014

so if RCR is allowed, why is the other divorce petition getting dissmissed? the other spouse did not have the opportunity to express his say for the cruelty caused.wont he or she get the opportunity to carry on his or her divorce petition for separation.?

abcd wxyz (Programmer)     14 October 2014

Please esteemed Lawyers answer my query as well???

My related question here is that if husband files for RCR and wife or Court both rejects the RCR.

Then thinking of no possible way out If husband files for divorce after loosing RCR so does that make divorce plea week?

As the other lawyer will definitely mention that since the husband has lost the RCR petition so he is now filing for divorce. Cause while fighting RCR husband would give arguements in favour of living together and incase of divorce husband will make allegations/arguements against living with each other...

Adv Archana Deshmukh (Practicing Advocate)     14 October 2014

When both the cases i.e. RCR and divorce are running simultaneously, then the evidence and pleadings in both the cases is bound to be similar, so how can there be 2 different conclusions...???  I hope you have understood the logic now. When RCR and divorce cases are running simultaneously in different courts, then it is always advisable to get one of them transferred, so that both can be tried before the same judge. If one case is filed after the judgement in other then, there is bound to be difference in the pleadings of the case and hence different result. 

1 Like

sandeep (pvt service)     14 October 2014

@adv archana.........thank you maam for your indepth reply to my query.....so are you suggesting the following scenario will take place if the cases are not transferred:

even if RCR is given to the other party, the divorce case will run to to give an opportunity to the petitioner to prove his point and not be dismissed just becase  RCR has been awarded. 

this exact situation has even confused the supreme court:

Man gets divorce order, his wife a decree to live together

https://timesofindia.indiatimes.com/india/Man-gets-divorce-order-his-wife-a-decree-to-live-together/articleshow/44808099.cms

 

 

 

 

sandeep (pvt service)     14 October 2014

since RCR cannot be forced upon by the courts on any party and is just a decree, then does it automatically justify in an automatic dismissal of a divorce case midway which is enforceable on both parties..also, in RCR cases, it is all about desertion, who deserted whom, and who was the culprit in desertion, and the faulting party is ordered to take the spouse back home. the points of cruelty are not counted here caused by the other spouse, whereas in the divorce case, the points of cruelty are counted and discussed if there is  any scope of living together so arent these two cases different to run to a logical end?


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