RCR – Should one file it or NOT?

The content below is copied from the following link and I thank the author for writing such a brilliant piece!!!!!!!

http://www.lawyersclubindia.com/forum/Why-not-to-file-restitution-of-conjugal-rights-43385.asp#.UiyTacZ_N5I

***********************              By Shonee Kapoor             ************************

Dear Friends,

I see a lot of advise about filing RCR (under various matrimonial laws, mostly Sec 9 of Hindu Marriage Act, 1955) whenever you face 498-a or threat of 498-a. I find no merit in filing RCR at all. I honestly think that this is the most useless provision of law. I hear varius arguments in favor of it, I don’t agree with any of them

Argument 1 in Favor of filing RCR has been, it would reduce maintenance or end maintenance.

Look at it like this, what the statute says in CrPC 125 (4) if the wife, without any sufficient reason, she refuses to live with her husband. One has two ways of proving the same. Either get a decree of RCR in his favour or defeat her claims in CrPC 125 petition. No prizes for guessing, which one is going to be easier. The onus of proving that she has no rhyme and reason is going to be far difficult than proving that her allegations are not sufficient. Also, you are trying to cut one maintenance, whereas you would be paying maintenance under Sec 24 of HMA, 1955 till RCR would remain pending in the court. NO ACTUAL BENEFIT RATHER IT MAY TURN OUT TO BE LOSS MAKING PROPOSITION.

Argument 2 is that she would have to run to your city to defend this.

Wrong again, she would put a transfer petition in Supreme Court/ High Court and get the case transferred, the SC/ HC is always too lax in such matters, more so, if some other litigation is pending in her area.

Argument 3 is she would be spending money on defending it.

More often than not, the money would come from your pocket only, as she would claim litigation expenses from you u/s 24 HMA. Even if your wife is earning and she may not get maintenance, but litigation expenses is denied very rarely by courts.

Argument 4 is that it would stop her divorce Petition.

Sorry, both cases run on their respective merits.

Argument 5 is that it would be easier to get AB.

I have yet to listen to more absurd reason. Do we think that Judges are fools? Can’t they see through us? They face the same situation day in and day out. On one hand you are saying, listen My Lord, she is laying baseless and concocted allegations of worst nature, on the other hand you are saying, I am willing to stay with her. Also, please note that RCR can never be conditional.

Argument 6 is that it would be easier to get divorce if she does not comply with the decree.

Yes, on the face of it. There is a ground available for divorce, if there is a decree of RCR in your favour, which has not been complied with for more than one year, you have right to seek divorce on the same ground. But, BUt, BUT… and its not a small but, it’s the decree which has been enforced and executed under Order 21 Rule 32 of Civil Procedure Code, 1908. Hence, count the number of cases you would be fighting to meet your end. 1. RCR, 2. Enforcement of Decree, 3. Divorce and 4,5,6… n all revisions and appeals she would file.

Pitfalls, filing of RCR has its own pitfalls.

1. She might agree to come back, with 498-A pending on you. You can not refuse because the RCR is pending despite 498-A on you.
2. You have condoned all the offences till the date the RCR is pending in court. That means that if you are acquitted on a false 498-A on xx date, and you withdraw RCR on xx+1 date, you have legally condoned the false 498-A. Sorry pal, no divorce for you on this ground. Remember Criminal Cases generally run faster than civil cases.
3. You would be unnecessarily increasing the litigation and strain on your own self, when you are in court stating something, contradictory statements of yours can be used against you.
4. God Forbid, if you loose the RCR case. You are doomed. The court won’t entertain your divorce petition. You are at the mercy of your lovely 498-A wife to get divorce thereafter.
5. Even if you succeed, wife can file permanent alimony under S. 25 of HMA.

Regards,

Shonee Kapoor
harassed.by.498a@gmail.com

PS: I would love to hear from my lawyer friends, any other reasons why one should file RCR.

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