If wife does not appear in court you would get exparte decree
you should file application in family court seeking joint custody of your child
Restitution of conjugal rights
My wife and me have been separated for past 4 months. She is been adamant and has blocked me in all platforms. I have a daughter who is 4 years old. She allows me to see her only once a week for an hour or so. After repeated efforts also there has been no improvement. I filed a restitution of conjugal rights case. She dint turn up for the first hearing even after receiving court notice. The date for next hearing is been informed. I want to know what will happen if she doesn’t turn up and also if she comes for the next hearing. What has to be done to meet my daughter without Any restrictions.
Asked 1 year ago in Family Law
Religion: Hindu
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7 Answers
Court will pass exparte order after some stages in the said case and give you decree
- Under Hindu Minority and Guardianship Act, 1956, mother is natural guardian and custodian of child till it reaches age of five years with visiting rights to father. Thereafter, father is natural guardian and custodian of child with visiting rights to mother.
- You can submit an application in Court seeking visiting rights to daughter like taking her for outings on week ends, taking her to your home etc. After she reaches crosses five years, you can obtain permanent custody of her.
- Filing RCR futile exercise as any decree obtained in RCR is not executable. No Court in world can force a spouse to join other spouse. It will ultimately lead to divorce coz after two years of such decree if she did not join you, you will be entitled to obtain divorce from her.
Meeting your child is a different subject to that of the Restitution of conjugal rights case.
You may have to file an application seeking visitation rights in the same RCR petition or file a separate child custody case seeking visitation rights to visit your child as per the time table you may propose in your application.
In the RCR case, if she has accepted the summons and do not appear before court nor being rep[resented by a lawyer, then the court will set her exparte and may pass an order as prayed for by you.
If she appears before court on the next date and decides to contest the case she may file a counter and challenge the allegations leveled b y you against her in the RCR petition.
They client I am sorry to you that but if she did not turn up for the proceeding you me seek exparted degree from the court against her. Moreover in order to visit your child you have to ask for court permission and order.
You have to instruct your advocate to press the court for an ex parte order if your wife continues to evade the legal process. You may ask your lawyer to file a petition praying for an interim order allowing you free access to your minor child without any resistance from your wife. In case of default, you may move for contempt of court.
- Since, you have filed the RCR , then her presence before the court is necessary after receiving the notice/summon of the Court.
- Hence, if she will not appeared after dully served the notice, then the Court may pass ex-parte decree against her after accepting your claim
- Further, if the said decree passed , then she cannot claim maintenance from you if she refuse to accompany you after passing the said order.
- Further, if she refused to give custody of the daughter , then you can move an application for the same , and to get the visitation rights as well.
