Restitution of conjugal rights
Hi Sir,
The situation: Wife is not willing to live with husband. Wife is not willing to give divorce to the husband. She is keeping total custody of the child and is not allowing the husband to see the child.
My friend got married in 2010. He is from lower-middle income group. His wife is also working and is of much higher income than my friend. Due to petty issues now and then, his wife deserted him within 5 months of marriage. She was pregnant at that time and eventually gave birth to a male child in 2011.
My friend (The Husband) wants to live together with wife and child and made several efforts. But all in vain. He was never allowed see the child, even at the time of birth
Eventually, in 2015, he filed for Restitution of Conjugal Rights. The trial is about to begin. His wife is totally reluctant to join him (Counter filed to that effect). So, even if the court passes an order in his favour, his wife is not going to join him for sure. In addition, the wife would continue the fight in upper courts.
At this point, he came to accept reality and want to seek divorce on the grounds of “Desertion”.
The wife is not willing to join him in marital life. She is not willing to give him divorce unless he gives up the child. The husband is not willing to lose the child altogether. So there is no possibility for mutual consent. So, for child, he decided to file application for joint custody.
The husband is in a dilemma as to how to go about the divorce. His advocate suggested him to withdraw the RCR and file a Divorce petition with Desertion as ground. My friend wants to seek second opinion from this forum as to the right approach.
Is it possible to file Divorce petition with desertion as ground and stating that he is more than willing to live with wife and child and if that is not acceptable to the wife then he would like to get divorced ? Can the husband file Divorce petition without withdrawing his RCR petition ? Or should he absolutely withdraw the RCR petition in order to have the divorce petition admitted ?
Can the husband file a Divorce petition and ask that it be heard together with RCR petition ? He really wants to live with his wife and child. But if that is not possible, he wants divorce. Whatever it is, the wife is contesting RCR. And she would contest Divorce as well. She just wants to trouble the husband and keep the child to herself.
Would really appreciate if you can provide any suggestions or recommendations.
Asked 7 years ago in Family Law
Religion: Hindu