Anonymous
Asked December 28, 2016

Restitution of conjugal rights vs Divorce

  • 1 Answer
  • 2218 Views

-After 4 years of separation MC & DVC filed. In both petitions they only mentioned that her brother took her & kid due to mall nourishment. -She is Post graduate and worked 6 yrs before marriage. But no information whether she is working now or not. -She is one year elder to me which we dont know before marriage. -And she also took our joint locker key with her. She opened 3 days before she left and opened again after 4 years recently. -When she left in her banck a/c opened & deposited cash by me have cash 1+Lak which she spent already and also transferred now to her place. -For these 4 yrs we dont have any direct contact. But many times through relatives we tried for negotiation to re-union but no success. Once they called for talks and manhandled me also. -And we are staying in separate cities & states 1) MC notice sent to OLD address where we last lived together and separated. And owner took this registered letter & handover to me . Hence seems i have no choice apart from attending court on given date. --- In this case should I appear along with lawyer or I can appear without lawyer and ask for "time to search lawyer and file counter" 2) Hence, I guess DVC notice also they will sent to this same OLD address. Should I receive this Notice or ignore? Please note I am not residing on this address any more. Please suggest what to do? 3)MC & DVC filed in different courts but in same city where she is staying now . Is it possible to transfer to same court? 4) - Should I file for RCR or Divorce directly or both? what is preferable and favorable to me ? - Merits & demerits? ( we don't have intention to stay together any more but I am not sure how they react to RCR) -and if to file should I file in my place/state or her place/state? 5) -Should I also file for Child visitation & Child custody. -If so what is procedure? -are these 2 will become separate cases/petitions apart from MC, DVC, RCR/DIVORCE? -and merits and demerits. Please note we are staying in separate cities & states

Answer 1

ANSWER FOR QUERY ONE AND TWO-

 

Under Section 80 of Civil Procedure Code, 1908, you cannot reject any legal mail or notice that may so be sent to you.

 

Thus, you are advised to accept all such mails and notices from the court in the future as well.

 

 

ANSWER FOR QUERY THREE-

 

You can in your affidavit, request the court to shift the proceeding to any one of the two courts citing inconvenience. Section 20 of the CPC allows the same.

 

 

 

ANSWER FOR QUERY FOUR-

 

There are different laws of divorce for different religion. Hindus(which includes Sikh, Jain, Budh) are governed by Hindu Marriage Act,1955.Christians are governed by Indian Divorce Act-1869 & The Indian Christian Marriage Act,1872.Muslims are governed by Personnel laws of Divorce and also the Dissolution of Marriage Act,1939 &The Muslim Women(Protection of Rights on Divorce) Act,1986. Similarly, Parsis are governed by The Parsi Marriage & Divorce Act-1936. And there is also a secular law called Special Marriage Act,1954.

A cursory reading of the entire gamut of Indian Laws regarding Divorce makes it clear broadly that the Divorce can be obtained by two ways:

  • Divorce by Mutual Consent
  • Contested Divorce
  • Mutual Consent Divorce is a simple way of coming out of the marriage and dissolves it legally. Important requirement is the mutual consent of the husband & wife. Under Section 13B of the Hindu Marriage Act, a husband and wife can file a mutual divorce only when they have lived apart for at least a year. The couple must jointly mention about their inability to continue the marital relationship due to some unavoidable circumstances. Both the sides must voluntarily agree to dissolve the marriage.

The filing of a mutual divorce by both the husband and the wife is termed as 'the first motion'. A couple can file for a second motion after a gap of six months. The six months time span is provided to the couple so that they get the time to reconsider their marriage.

A divorce decree can be passed before the completion of the six months term if all the mandatory requirements for the divorce are sufficed. If the divorce file is not withdrawn within eighteen months the court passes a divorce decree. Incase one of the sides withdraws his/her petition the court initiates to make an enquiry. If the concerned side disagrees to give the consent, the court holds no right to pass the divorce judgment

There are two aspects on which Husband & Wife have to reach to consensus. One is the alimony or maintenance issues. As per Law there is no minimum or maximum limit of maintenance. It could be any figure or no figure. Next important consideration is the Child Custody. This can also be worked out effectively between the parties. Child Custody in Mutual Consent Divorce can be shared or joint or exclusive depending upon the understanding of the spouses. Duration of Divorce in Mutual Consent varies from one month to six months or more from States to States and as per the High Court directions.

2. Contested Divorce. you will have to contest it. Indian laws in general recognizes cruelty (Physical & Mental), Desertion (Period varies from 2 to 3 years), Unsoundness of mind( of Incurable form), Impotency, renouncing the world, etc. Aggrieved party has to take one of the above grounds of divorce and will have to file the case in the Court of appropriate jurisdiction. Party which files the case has to prove the case with support of evidence and documents. On successfully proving the case, divorce will be granted and divorce decree will be drawn up accordingly.

 

Time duration for obtaining divorce varies from case to case & place to place. Generally speaking, contested divorce proceedings take approximately 18 to 24 months. Mutual Consent Divorce varies from 4 weeks to 7 months and more. In DelhiMutual Consent Divorce is possible with in two to four weeks.

 

Generally speaking procedure for obtaining Divorce in all forms of law (based on religion) is same with only bit of variation.

 

 

Thus, I will advice you to go for divorce by mutual consent as it is relatively less time taking than a contested divorce proceeding.

 

 

 

 

 

 

 

 

 

ANSWER FOR QUERYNUMBER FIVE-

 

The Hindu Marriage Act 1955, has exhaustive laws related to child custody and child support. If the child is below five years, the custody is unanimously awarded to the mother. In case of older children, the custody of a girl child is generally given to the mother, and that of the boy child to the father. Visitation right is an important aspect of child custody, which specifies how frequently of the estranged parent can meet his/her children.

 

Child support is intricately linked to child custody, since it is most practical for the parent taking care of the child, to receive financial support for bringing up the child. In an overwhelming majority of divorce cases, it is the mother who is entitled to child support, since she is the primary caretaker of the child or children post-divorce. However, like alimony rights, child custody and support are also of subject to respective marriage laws of the estranged couple. In case of divorce by mutual consent, the parents should to take the help of a lawyer in order to thrash out the details of child custody and child support. In cases of contested divorce, on the other hand, the receiving parent is best advised to make a strong claim for child support, under the guidance of her lawyer. Finally, it is up to the court to specify the amount and duration of child support, where the divorce is being contested. If you want the custody of your child, please specifically mention it in the divorce plea.

 

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