A common phenomenon during 498a/DV litigation is that the wife leaves her matrimonial home and starts to live in some other place, thus denying her husband of his conjugal rights. Some lawyers will tell you that you should apply for RCR (Restitution of Conjugal Rights), also called Section 9 of Hindu Marriage Act. These lawyers are only trying to entangle you in a fruitless battle which will enrich them at the cost of ruining your life. Avoid such lawyers like the plague. Why this writer thinks so, is explained as follows.
A petition for Restitution of Conjugal Rights is a petition to order the wife to come back to you. This is done supposedly to allow the spouse who wants to save the marriage to save it. Why the lawmakers included this provision in the law on marriage and divorce in India is a mystery –considering the fact that they knew perfectly well that you cannot force an unwilling spouse to cohabit with the willing spouse, even if they are in the same bed.
Further, the slow speed of Indian courts ensures that the marriage is long dead before the aggrieved party is finally able to see his or her effort through to the conclusive stage in the court system. This will occupy many years of your life and lead to the wastage of lakhs of rupees, and in the end, even if you win it, even the Chief Justice of India or the Full Court of the Supreme Court cannot enforce it. Nobody can force your wife to come back to you, even if there is a court order from the highest court.
Your unscrupulous lawyer may say that the RCR petition insulates you from 498a. This is utter hogwash. An RCR petition does not protect you from 498a in any way whatsoever. Remember, it is you who is asking your wife to come back, and she is refusing to come back. She can easily claim that this is due to dowry cruelty by you and your family –and indeed, this is what is invariably done by such wives. Ask yourself, if you force your wife with the aid of a family court to tell why she has left you, and if she is angry at you, then what other route remains for her than to accuse you of harassing or torturing her?
RCR is a horrible, horrible mistake for the criminal side of your battle too. It means in effect that you are declaring that you have forgiven all the cruelties of your wife, and that you do not mind that she has left you; denied you sex and love; filed a DV case against you and your parents; filed 498a against you and your parents; and all other similar actions taken by her. You lose your right to file divorce on the grounds of cruelty the moment you file RCR. You practically lose your right to file for divorce on any grounds whatsoever for months if not years after your RCR has been decided upon by the highest court.
Further, you have to fight your RCR until the highest court, and then you have to fight again from the lowest to the highest court to get the decree enforced. Even at the end of that, it is not enforceable at all.
There is another provision in the HMA that once one party succeeds in getting a positive decree as a result of his/her RCR petition, the parties have to resume cohabitation within a period of one year, failing which, either party can get a divorce decree. This provision renders the whole RCR concept meaningless, because the party which wants a divorce can lead the other party up the garden path by allowing them to win the RCR decree in as short a time period as possible, and then using the same against them. This can be done by not contesting the RCR petition; and, thereafter, not resuming cohabitation within the succeeding year. This eventually results in a divorce decree at the end of that period, and the deserting party gets what they want.
The above passage also explains why the notion that an RCR can dull your wife's divorce petition is foolish. She gets two pathways to divorce in this case, not just one.
Another funny thing which reveals the lopsided interpretation of the law by the judiciary in our country is that the wife can file an RCR and a 498a at the same time. The courts do not interpret her RCR in this situation to mean that she has condoned the putative cruelty of the husband. They permit the 498a to be admitted, and allow the husband to suffer the illogical legal atrocity of a woman trying to send him to jail and to bring him to her bedroom at the same time.
An RCR petition cannot reduce your maintenance expenditure either, as your wife has more than one pathway to get maintenance from you. India is the only country in the world where the wife has at least four legal provisions enabling her to ask for maintenance, and it is impossible to stop all four attacks if she is hell-bent on harassing you. Further, you must note that due to section 24 of HMA she can claim money from you to fight the case against you. And although you can file the RCR case in your city, the record so far overwhelmingly supports the probability that the legal battle will have to be fought in her city.
So discard all thoughts of using this legal provision.
Written by Manish Udar
Published by Manish Udar
Page created on 15th July 2013
Last updated on 20th April 2015