• What to do after rejection of RCR petition

I am 38 and my wife is 37 and having 2 years old daughter. She is living separately since 2 1/2 years with daughter. I tried to bring her back but she was not ready. So I filed a petition in April 2012 in Kutum Nyayalaya u/s 9 ,  After around 30 - 32 hearing she did not appeared a single time in the court & in the reply of notice her advocate gave the reason that because she is working so she have to live at other place & make a lot of non sense allegations. 

On this behalf of this reply court rejected my petition on the ground that because she is working so she have reason to live separately.  Court also mentioned that because She is living in a big city where my daughter will have better education facility and I can up-down from that city so my application is rejected. 

After getting notice of u/s 9 she filed a case in Domestic Violence Act. which is also pending.

Please help me, what should i do now. I tried to mutual divorce but she is not giving any reply. Neither she is ready to live with me and nor she is not leaving me. 

Please tell me -

1. What will the effect of rejection of RCR Application
2. After rejection of my RCR Petition can I file a divorce petition
3. After rejection of my RCR Petition what will the effect of DV Petition.
4. What should I do now, so I can free from this mental torture.
5. Any other legal way to resolve this problem.

Please help me
Asked 2 years ago in Family Law from Sehore, Madhya Pradesh
Religion: Hindu
A decree of restitution of conjugal rights implies that the guilty party is ordered to live with the aggrieved party. Restitution of conjugal rights is the only remedy which could be used by the deserted spouse against the other. A husband or wife can file a petition for restoration of their rights to cohabit with the other spouse. But the execution of the decree of restitution of conjugal rights is very difficult. The court though is competent to pass a decree of restitution of conjugal rights, but it is powerless to have its specific performance by any law.At present as per the provisions available under the Indian personal laws, the aggrieved party move a petition for a decree of divorce after one year from the date of the passing of the decree and the competent court can pass a decree of divorce in favour of the aggrieved party.
If the divorce petition is not filed than you can file  for divorce on the ground of the desertion i.e Section 13(1)(ib) only if a period of 2 years has elapses from the date of desertion.
Further, you can file a divorce on the ground of cruelty under Section 13(1)(ia) under the Hindu Marriage Act 1955, as desertion by your spouse can also amount to cruelty, both mental and emotional.
Further please specify whether she has filed a criminal complaint under DV?
Incase yes, then you will have to defend the case and take reasonable ground for your defence.
Sudershani Ray
Advocate, New Delhi
192 Answers
25 Consultations
4.9 on 5.0
1. The dismissal of RCR has no such adverse impact on your existing dispute.
2. Yes, you can file divorce suit on the ground of cruelty but on cause of action filed after the date of filing RCR.
3.The merit or outcome of the RCR has no connection with the DV case.
4.File a suit for divorce.
5.Try to resolve the dispute amicably.
Devajyoti Barman
Advocate, Kolkata
5239 Answers
54 Consultations
4.9 on 5.0
Hi, if the Restitution of conjugal right has been dismissed you can prefer appeal to the High court and in the mean while you can file divorce petition on the ground of desertion and even after dismissal of your restitution of conjugal right petition you can file a divorce petition and petition filed under DV act is separate proceedings and you can contest the case on merits and it is my personnel opinion it is better go for divorce by mutual consent.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. Filing RCR is of no use since even if you get favourable order, she may refuse to join you,

2. Only benift in getting favourable order from the Court in RCR application is that you can get the Decree of divorce quickly if she refuses to join you within 1 year from the date of receipt of the said decree,

3. You can file a divorce petition on the ground of cruelty since filing false DV case is also treated as cruelty,

4. Rejection of your RCR petition will have no impact on any cases file before or will be filed afterwards,

5. Engage a local lawyer having expertise in this field and file a divorce petition on the ground of cruwlty or on any other valid ground.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
1. no bad effect on you.

2.yes, u can file divorce petition in family court on grounds of mental creulty and desertion.

3.Dv case is separate one and fight it in court with help of lawyer.

4.file divorce petition in family court on grounds of mental creulty and desertion asap.

5.if possible go for mutual consent divorce.
R.K. Nanda
Advocate, New Delhi
457 Answers
0 Consultations
3.8 on 5.0
1)if your wife was not willing to stay with you then you ought not to have filed RCR . you cant force your wife to stay with you .since your wife is staying separately for 2 years you should file for divorce on grounds of mental cruelty . mere rejection of RCR wont affect your case adversely 

2)after rejection of RCR you can file for divorce. 

3) since you filed RCR your wife filed DV case as counter attack . rejection of RCR has no effect on DV case . contest Dv case on merits . 

4)you should file for divorce now on grounds of cruelty. 

5) since your wife has no desire to stay with you try to convince her for divorce by mutual consent . contested divorce cases take over 5 years to be disposed of . divorce by mutual consent only 6 months
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0
Dear Querist
My opinion on your queries are as under
1.  There is no effect on your status you may file a contested divorce before family court where you are residing or where both of you were residing. 
2. The cause of action should be based on the reply filed by her in which she mentioned all false allegations. 
3. There is no effect on dv case but you may prove her willful desertion. 
4.file contests divorce against her as soon as possible. 
5. After filing the case try to settle the matter amicably through court counseling or mediation.
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
Dear Client,
You are advised to file a divorce petition before the court under section 13(1) of Hindu Marriage Act. It is better to convince her for Mutual Consent Divorce through negotiations and bargain.You are advised to defend the filed DV case. Further file a child custody case against your wife stating  the apprehension of the welfare of the child in the hands of working woman, and pray with the court to direct your wife to admit the child in good residential school.
Mohammad Khaleel Ahmed
Advocate, Hyderabad
184 Answers
1 Consultations
3.9 on 5.0
1. RCR is just a paper tiger. Please understand that in a free country you cannot force any one including your spouse to stay with you. The only benefit you draw out of RCR is that if the spouse does not join you within a year you can seek divorce on this ground.

2. Rejection of RCR does not impair your right to file for divorce. Your divorce petition will be decided regardless of the outcome of RCR.

3. DV petition and all other cases filed against and by you will be decided irrespective of the RCR outcome. RCR has no bearing on any other case.

4. You may apply for divorce on the ground of cruelty. 

5. Attempt to convince your wife to go for mutual divorce since it is quick and hassle free divorce, failing which you may unilaterally file for divorce.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
Hi, you can ask for custody of the child and also request the court to admit the child in good residential school but she may file objection and subject to the decision of the court.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. To file an appeal in the High Court is your indefeasible legal right, but no purpose will be served by doing so as no court including the Supreme Court can coerce your wife to return to her matrimonial house.

2. If she has not responded positively to your suggestion to apply for mutual divorce, you may unilaterally file for divorce. Until and unless she agrees to end the matrimonial tie through the intervention of court, mutual divorce cannot be filed.

3. You can file for child custody to obtain the custody of your child. Court will never pass an order for admitting the child in a particular school. It will merely decide which parent has to be awarded the custody of child.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
1.no.

2. then  u can file divorce petition in family court on grounds of mental creulty and desertion

3.yes, u can file child custody case in court..
R.K. Nanda
Advocate, New Delhi
457 Answers
0 Consultations
3.8 on 5.0
1)filing an appeal in HC against rejection of your RCR petition is of no use . as mentioned earlier you cant force your wife to stay with you . you have already wasted 30 months in your RCR case . do you want to waste 5 more years in appeal? 

2) you will only waste time and money on legal fees . 

3) better file for contested divorce on grounds of cruelty as advised earlier . 

4) custody of child is generally given to mother . you can get visitation rights . further according to court chances of education are better in city wherein your child is  staying with her mother and  admitted in school . court wont pass any order for admission of your child in residential school .
Ajay Sethi
Advocate, Mumbai
23328 Answers
1220 Consultations
5.0 on 5.0
1. You want to file appeal before the High Court with what prayer? For directing the Court lower not to reject your RCR and hear it? What is the use? Even if you get favourable order she may refuse to join you and there is no law which can force her to join you if she is not willing to,

2. File your divorce petition immediately,

3. Child custody petition for taking custody of minor child will not succeed unless you can prove that it is for their welfare. It is difficult to prove at this stage since her lawyer will contest vehemently.
Krishna Kishore Ganguly
Advocate, Kolkata
12131 Answers
233 Consultations
5.0 on 5.0
Dear Client,
You are advised to file quash petition before High court for DV case, make efforts to convince her for MCD, If she not agree file divorce petition at your self under section 13(1) of HMA.You are advised to file a child custody case also with strong grounds of the welfare of child is under threat.
Mohammad Khaleel Ahmed
Advocate, Hyderabad
184 Answers
1 Consultations
3.9 on 5.0
that itself is a good ground for divorce. you an obtain divorce by filing a petition on the ground of desertion without any valid reason
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
When any case will be pending under Guardian and wards act for child custody then the applicant may file an application for children admission in good school for welfare of the children and the court is bound to see the welfare of the child. because the welfare of child is more then dispute between the parties.
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
you should file for divorce on grounds of desertion & mentle cruelty. you may also request for admission of your child in good school in your custody petition
Avdhesh Chaudhary
Advocate, Greater Noida
565 Answers
20 Consultations
3.9 on 5.0

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