• My wife not communicating with me properly and not willing to come back to me

Dear Sir,

I'm Sumit from Noida. I'm living here since 07 & half years along with my wife in Noida. We have got a child also who is 04 yrs. old. I sent my wife with her parents on 31st of Dec.'17. TIll Feb.'18 we had been chatting over phone very well. After 22nd of Feb.'18 when she had a call from some unknown no. she started quarreling with me over phone & her mother too got involved in that. After that I surrendered my no. & our communication was no more. Each member were having their own nos. but they were not ready to get her connected to me. On 03rd of March 2018, when she met with an accident once again every one started communicating with me for her treatment as doctor had advised her operation which was costing around Rs. 50K as per doctor. I had got mediclaim, so her treatment was covered through that which costed me around 82000.00. After that I managed to get her back home to Noida. But I was unknown of the fact that during her three months spending at home she was engaged with some other guy. She came with her younger sister with a game plan in their mind. She didn't wanted to give time to myself despite she kept on talking to her boyfriend. When I got some of the proof of her calls when I recorded her calls both of them got annoyed & tried to blame me that I have wrong feelings about my sister in law. In the mean time when I was unknown of their affair, she requested me to transfer some money to her boyfriend whom she told me that he is her brother. With the help of that money she asked her boy friend to arrange for their tickets & also he send them Rs. 3000.00 to my wife's account. Both of them they escaped from here once again to her parents. Now since two months I'm trying to call her back. She is refusing to come back. Now a days they are also not picking up my phone calls. When my sister & my Bhabhi wanted to talk to her, they [Her mother & herself] always threaten to go to high court. Kindly suggest. I don't want to lose my wife & son. Plz. help sir..........
Asked 4 years ago in Family Law
Religion: Hindu

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19 Answers

See first of all just an opinion if your wife doesn't want to live with you and has an affair then it better to take mutual divorce take custody of child and lead life peacefully as it is not logical to run after somebody not interested in you.

See otherwise what will happen you will run after she will file false domestic violence case and you will spend time running in courts to bring yourself justice and then also you will not get your wife.

now, since you want to stay with her file an petition for restitution of conjugal right before that you can serve her a notice for restitution and the court can pass such order but see if she is not willing nobody can force her.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Dear Sir,

You may get issue a legal notice for restitution of conjugal rights and thereafter file a petition for restitution of conjugal rights in family Court you will succeed.

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If conjugal right is not restored within one year of getting the RCR decree, the aggrieved party is eligible to get divorce.

Non-compliance with a decree of judicial separation

By sub-sec. (IA) of s.13 either spouse may present a petition for divorce on the ground that there has not been any resumption of cohabitation of the parties to the marriage for a period not less than one year after the passing of a decree for judicial separation. Resumption of cohabitation means living together in conjugal relationship. But this means is narrow and as such it should not be applied to all cases irrespective of their special and surrounding circumstances. The meaning of this expression therefore depends upon the intention of the parties, and there may be resumption of cohabitation even where the parties do not live under the same roof of matrimonial home. If there is sexual intercourse of the parties to the marriage, it is no doubt a good ground to presume the resumption of cohabitation, but that is not the conclusive evidence for this purpose. The birth of a child from an isolated act of sexual intercourse does not mean resumption of cohabitation. There may be resumption of cohabitation without having sexual intercourse. The court will grant a decree for divorce on the ground provided in sub¬ sec. (1A) of s.13 in the absence of any bar laid down in s. 23 of the Act. In a proceeding for divorce, a decree of judicial separation cannot be challenged on the ground of lack of jurisdiction of the court in the previous proceedings.

The statutory period of one year (previously two years) laid down in this provision will be operative from the date of the judgment of the District Court and with the lapse of this period the High Court in Letters Patent appeal may pass a decree for divorce under s. 13( 1 A) of the Act. But where a decree for judicial separation is passed by the High Court in appeal, period of one year (previously two years) will commence from the date of the decree in appeal But where an appeal is preferred against the decree and the decree confirmed by dismissing the appeal, the period of one year (previously two years) will run from the date of the original decree.

Non-compliance with a decree of judicial separation

By sub-sec. (IA) of s.13 either spouse may present a petition for divorce on the ground that there has not been any resumption of cohabitation of the parties to the marriage for a period not less than one year after the passing of a decree for judicial separation. Resumption of cohabitation means living together in conjugal relationship. But this means is narrow and as such it should not be applied to all cases irrespective of their special and surrounding circumstances. The meaning of this expression therefore depends upon the intention of the parties, and there may be resumption of cohabitation even where the parties do not live under the same roof of matrimonial home. If there is sexual intercourse of the parties to the marriage, it is no doubt a good ground to presume the resumption of cohabitation, but that is not the conclusive evidence for this purpose. The birth of a child from an isolated act of sexual intercourse does not mean resumption of cohabitation. There may be resumption of cohabitation without having sexual intercourse. The court will grant a decree for divorce on the ground provided in sub¬ sec. (1A) of s.13 in the absence of any bar laid down in s. 23 of the Act. In a proceeding for divorce, a decree of judicial separation cannot be challenged on the ground of lack of jurisdiction of the court in the previous proceedings.

The statutory period of one year (previously two years) laid down in this provision will be operative from the date of the judgment of the District Court and with the lapse of this period the High Court in Letters Patent appeal may pass a decree for divorce under s. 13( 1 A) of the Act. But where a decree for judicial separation is passed by the High Court in appeal, period of one year (previously two years) will commence from the date of the decree in appeal But where an appeal is preferred against the decree and the decree confirmed by dismissing the appeal, the period of one year (previously two years) will run from the date of the original decree.

Non-compliance with a decree of restitution of conjugal rights

Under cl (ii) of sub-sec. (1A) of s. 13 either party to the marriage may present a petition for divorce on the ground that there has been no resumption of conjugal rights for a period of not less than one year after the passing of a decree to that effect. The court before granting a decree for divorce on this ground may be satisfied that the petitioner is not disentitled to this right by reason of any bar laid down in s. 23 of the Act. After a decree for restitution of conjugal rights obtained by the wife under s.9 of the Act the husband is not entitled to the relief under s. 13( lA) of the Act if he fails to comply with the decree and also acts positively by ill-treating her and driving her away from the house.19 There are, however, conflicting decisions on the question of application of s. 23(1 )(a) of the Act. The Punjab High Court, the Mysore High Court and the Bombay High Court' were of the opinion that the petitioner in divorce proceedings cannot take the advantage of his or her own wrong for the purpose of this relief by non-compliance with the decree of restitution of conjugal rights.

But the FuIl Bench of the Delhi High Court is of the opinion that non-compliance with the decree for restitution of conjugal rights by the husband would not constitute 'wrong' within the meaning of s. 23(1)(a) of the Act. A reconciliation between these two sets of conflicting decisions has been suggested in an article3 that the equation of the judgment-debtor and the decree-holder for making a petition under this provision has no bearing on the conduct of either party after the decree is passed. But the court in divorce proceedings may consider the condiJct of the parties not considered in the proceedings leading to the decree. It is submitted that the plain wordings of s. 13(1A) have made no distinction between the parties to the marriage and hence any contrary holding would impute super added idea in the intention of the Legislature making the amendment for insertion of sub-sec. (1A) of s. 13 of the Act. Further, where the language is plain and simple without any ambiguity, s. 13(1)(a) should not restrict and control the application of s. 13(1A) of the Act. In a case where a consent decree for restitution of conjugal rights was passed, it would form the basis for divorce for non-compliance. It is to be noted that if a decree for restitution of conjugal rights is complied with, there is no scope for a petition of divorce.

AIl the controversies on this issue have come to rest on the decision of Saroj Rani v Sudarshan Kumar, where it has been held that after a decree for restitution of conjugal rights the husband is entitled for a decree of divorce under s. 13 of the Act and his failure to resume cohabitation would not amount to "wrong" within the meaning of s. 23(1 )(a) of the Act. But where the husband has obtained a decree for restitution of conjugal rights, only for the purpose of seeking a divorce under s. 13(1 A)(ii) of the Act and preventing the wife from performing her conjugal duties by driving her away from the house, this constituted misconduct under s. 23(1)(a) of the Act as the husband was taking advantage of his own wrong and hence he was not entitled to any relief under s. 13(1A) of the Act.6a

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

Further to safe guard yourself file an police complaint against the boy friend of your wife for adultery provide police with the call records, and engagement proof if any. Further also give a complaint against your wife and family that they are threatening you to file false cases against you,

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

file for divorce on grounds of adultery

2) make her lover co respondent in divorce case

3) also file case against her lover under section 497 of IPC for adultery

4) gather evidence about her extra marital affair

5) wife guilty of adultery is not entitled to maintenance

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

in divorce case seek sole custody of your child

2) iin case wife files false dowry harassment case apply for and obtain AB from sessions court

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

In case she files the false criminal cases you need to obtain an Anticipatory bail and defend yourself in the same,

See as a young friend i can suggest you to amicable settle with her dont pay her any alimony take a mutual consent divorce take custody of your son and lead a peaceful life there is time you can remarry with a better girl or at least wont run around courts for women who is not loyal to you.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

gather evidence of her adultery

2) then file for divorce on grounds of mental cruelty and adultery

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

file case against her lover under section 497 of IPC for adultery

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

You need to send her a notice for restitution of conjugal rights. If she still refuses to comeback , file a petition before appropriate court for RCR.

If she decides lodges a complaint under dowry or dv act or 498 a, in that case you can get anticipatory bail. But in such cases arrest in not immediate.

You have enough evidence to prove your innocence. You need not to worry.

Junaid Ali Khan
Advocate, New Delhi
173 Answers
1 Consultation

4.7 on 5.0

First of all if you have proof concrete proof that she's living in adultery them it's advisable to file for divorce and claim custody of child. If you do not have evidence better file for restitution of conjugal rights under section 9 of hindu marriage act..If she refuses to live with you after court notice is served them you can file for divorce and it.will be granted. Note that she may file for maintenance of child and herself which you need to pay up to 1/3 or 1/5 of your income. Better you send notice asking her to join your matrimonial home or to give you divorce. So that In case she files any dowry harassment case you can get anticipatory bail easily.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

You should file a case for divorce under Hindu Marriage Act on the ground of cruelty and extra-marital affairs as alleged by you. Simultaneously you should also file a case for the custody to your child.

But before doing so you should be careful about their activities and shall start collecting as many records as you can in against them. Like for e.g. -

1. Collect the proof of all the expenses which you have incurred on your wife including the recent medical expense,

2. Collect all the proof which establishes the relationship in between your wife and her boyfriend (as this will also help you in maintenance case. Law is very clear on this point a lady involved in extra marital affairs has no right to seek maintenance). Collection of this proof is extremely crucial for you. If you are not in a position to do it on your own then hire a detective agency for the same.

3. Collect all the proof which establishes the fact that your wife and in-laws has been cruel to you and your family. Start recording all the meetings and phone calls from here on wards.

4. Collect all the proof which establishes the fact that you have taken best care of your wife and children till the time they were residing with you and they have themselves left your premise with no intention of returning back.

5. Collect all the proof which establish yourself to be in a better position than of your wife on terms of finance, family situation, better livelihood etc so that you can easily seek the custody of your child.

6. If possible try getting a complaint lodged in against your wife and her boyfriend and move before the court under section 39 of CrPC 1973 informing the court that the concerned parties have ill intention against you and they may bring up false criminal case against you. So there to defeat their intention any criminal complaint against you shall be entertained only by the permission of court and not otherwise.

Pulkit Prakash
Advocate, Delhi
309 Answers
7 Consultations

5.0 on 5.0

Dear,

First of all i want to tell you that you are behaving like child, she want's to leave you and you don,t, why.

Leave her man, and go ahead in life.

and if you are not ready to do so then file application in section 9 in family court and file application for

custody of your child also.

But my last view for you to take divorce from her and live happily.

Tarun Agarwal
Advocate, Jaipur
769 Answers
3 Consultations

4.9 on 5.0

Dear Sumit,

FIRSTLY - relax - and dont worry about any thing - all the information that has been given by you in your notes is a positive information and will help you at later stage. Considering the scenarios at present it is best you take the first movers advantage - decide whether to file divorce or Restitution - PLEASE be very careful to make a decision as of today as both have their own pro's and con's. It is advised you speak in detail to a counsel of your local jurisdiction and take further steps.

Best of luck

Atulay Nehra
Advocate, Noida
1282 Answers
58 Consultations

5.0 on 5.0

Incase see files any FIR against you as you are living in Uttar Pradesh you need to file a petition for pressing the FIR and if not then you have to apply for thebail

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

1) You can file RCR case against her to come together both of you. In future you will safe by filing RCR case.

2) And against that guy you can file case under section 497 of IPC.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

You should be petition for restitution of conjugal rights under section 9 of the Hindu Marriage Act.

Hindu Marriage Act, 1955 (Section 9) says If either the husband or the wife, without reasonable excuses, withdraws from the society of the other, the aggrieved party may approach the Court for restitution of conjugal rights.

Siddharth Jain
Advocate, New Delhi
5928 Answers
101 Consultations

5.0 on 5.0

When the court gets satisfied with the aggrieved party’s contentions and when the court finds no reason as to why the aggrieved’s application should not be supported, the court may decree restitution of conjugal rights in the aggrieved party’s favor.

Siddharth Jain
Advocate, New Delhi
5928 Answers
101 Consultations

5.0 on 5.0

If you dont want to lose your wife and child, you may file a RCR petition for rejoining them through a court decree.

But do you think that she will listen to your words or request, if she has decided to spend her time with her boy friend alone, then it would be better that you collect evidence and lodge a criminal complaint against him under section 497 IPC for the offence of adultery.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

What should I prefer to do in order to protect myself in case she is willing to file any case agst. me so that I could be on safe side & also I could get them back? Kindly suggest.

Your RCR petition should safeguard you from possible legal attacks in the form of 498a case which should use it to retaliate your legal action.

Since there is no provision for AB in UP, you may better approach high court with a petition to not to arrest owing to the facts of her adultery and vindictive complaint against you.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

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