• Can husband get divorce on basis of restitution of conjugal right

We got married Mar, 2013. My (33) wife (30) is pursuing PhD in Calcutta University after completing her double MA on history. This was an arrange marriage where my parents and she belongs to same Guru’s disciple. From a daily news paper my parents found this add in matrimony column and within a couple of months we got married.  She has an elder brother and retired school teacher father and house wife mother.
Just before 3-4 days of our marriage we come to know that her brother use to stay with his wife and 5 years old son in his wife’s parental home as her father denied their marriage 6 years before. Still we progress as everything was set up and cards are also distributed. 
After marriage when we went to honeymoon, she use to say that she doesn’t like to have family or child as she likes to roam free or to live like religious community woman. I thought that time will heel all this but I was wrong. In first few months she use to lead conjugal life but I felt that she doesn’t like so much. Afterwards, this has been stopped permanently as I feel that she doesn’t like this. She use to complain that due to TV serials, she can’t continue her study. My parents, both are old, retired (Father) and have nothing to do in general other than “Puja-Path” and watching serial in my 2BHK flat (bought on 2011, EMI running), but they reduced to watch TV because of her. After that she uses to do complain about food habits and other small small things. After 7 months, in Oct, 20113, she went to her parental house for preparing NET exam. This was the start. After that she came on just few days before our marriage anniversary and again went her parental home as her excuse was my home is not proper for her study and her father use to support this. Days goes and she came only twice to collect her ornaments between Mar 2014 to Oct 2014.
Several times I called her to stay with us and my parents also, but the excuses are same from their side as she needs to prepare and attend NET exam, so she couldn’t come to her in law’s house and her family use to support the same. On Nov’14, I tried to make this thing settle by went to her parental house and ask her for a vacation to Sikkim for a week. Her father denied strongly as this would hamper her study. But one of their neighbour and family friend get into this matter and made her father agree on this. We went to Sikkim, the days were awesome but we never lead a conjugal life during this period as she doesn’t like. I had tried but she denied and I never forced her.  
We returned back to our home on Saturday and the very next Sunday, she went to her parental house. That was 18th Oct, 2014. Since then she never come to our house. 
We met outside twice and I tried my level best to make her understand, but she doesn’t ready to come to my house. Her one of the prime concern is my parents specially my mother. Along with that she doesn’t like as I am spending money for them by taking them to restaurant and vacations. Along with that she wants me to stay with her as her elder brother is doing. She used to start cursing to my parents.
I stopped to meet her, and now our parents started taking over phone. Her father uses to curse my mom in every call and stated that before completion of her PhD, she will not come back to her in law’s house. If in the mean time she get any job, even it is outside the city or state, she will join as she is not there to serve her in law’s  (NB: After marriage, as she is studding, My Mom kept a cook and a maid servant so that the house hold work should not hamper her study).  
I asked for a mutual divorce directly to her, but she said that she will never give me divorce as she doesn’t want me to marry again, and if I force then she will demand a lum sum of about 20 – 30 lakh as she knows very well that I can’t afford that. She use to threat me with the statement that if she wants, she can go any time to police and complain under 498A but as she has a little respect to my parents , so she doesn’t want to do that. She can try to come back if I move to a different rented flat.
I am working in a private firm, bought a flat and giving EMI in every month.  I have my parents, both 60+ years; I can’t leave them as this is my responsibility. She doesn’t give me divorce, and all my crucial days are getting passed with giving me mental pain. 
Please suggest me how can I get rid of this complex situation? I do not want to live with her anymore or to continue this marriage along with that I can't give the lum-sum amount what she is expecting. She is pursuing PhD, so she is very well deserving candidate for any job. Please suggest me.
You valuable suggestions are highly solicited.

Regards,
Roy
Asked 6 months ago in Family Law from Kolkata, West Bengal
Religion: Hindu
1) if your  wife is refusing to return to her matrimonial home you can issue her legal notice to return to matrimonial home 

2) if she refuses file for divorce on grounds of mental cruelty 

3) contested divorce would take around 5 years to be disposed of 

4) in case wife files false 498A case obtain Anticpatory bail from sessions court 

5) your wife is highly qualified and is not entitled to maintenance 
Ajay Sethi
Advocate, Mumbai
23100 Answers
1212 Consultations
5.0 on 5.0
Issue a legal notice under RCR (Restitution of Conjugal rights) asking her to come back and join you immediately if she does not comply file a RCR Petition on the same grounds stating very clearly that you want her to come and rejoin her matrimonial home and restore back your conjugal rights, if after receipt of notice also she does not come forth then the court will allow the petition and order your wife to come and join you within a fixed period of time, failure to comply with the courts order you can seek divorce on these grounds and the same will be allowed.
Kiran N. Murthy
Advocate, Bangalore
765 Answers
50 Consultations
5.0 on 5.0
Hello,
1) If you file for Restitution of Conjugal Rights and get an order in your favour and she fails to abide by the order, then that becomes a basis for you to obtain divorce.However you will have to wait two years after the order to take advantage of this. This would mean that practically you will end up wasting a lot of time unnecessarily.

2) The best option would be to file for divorce if you no longer desire to continue with the relationship where she has unreasonable demands and want to abuse legal provisions as she often threatens.

3) You can file for divorce on grounds of mental cruelty. Although she can file for alimony, there is no hard and fast rule about you have to pay certain amount as compensation. Once you have filed the case in the court you will have opportunity to get a mediation through the court and get the petition to convert into a mutually consented divorce.
S J Mathew
Advocate, Mumbai
1949 Answers
65 Consultations
5.0 on 5.0
Dear Mr. Roy
Immediately file a divorce case against her based on cruelty under section 13{1}{ia} of Hindu Marriage Act 1955.
After filing divorce if she filed any case against you then those cases can be consider as counter blast case and your chance will be very high to win the cases.

Feel Free To Call
Nadeem Qureshi
Advocate, New Delhi
3517 Answers
129 Consultations
4.9 on 5.0
1. Collect evidence of her abusing your parents and also that she has left  your house in Oct'2014 and also the she has refused to join you to lead a family life,

2. File a divorce petition in the month of Oct'2016 i.e. after 2 years of her leaving you on the ground of cruelty and desertion, 

3. Do not worry for 498A complaint since the teeth of 498A menace has bee broken by Supreme Court who has directed the police of all the states not to make any arrest against 498A complaint without conducting investigation about the complaint.
Krishna Kishore Ganguly
Advocate, Kolkata
12034 Answers
227 Consultations
5.0 on 5.0
Dear Mr. Roy,
Think for a divorce it is inevitable in your case. If you want your marriage to last, then you have to keep making an effort to be romantic. But the nature of your wife is not supposed to lead a good and healthy relationship. The failure to shift loyalty from parents to spouse is a central issue in almost all marital conflict. More over a threat for filing a case like 498A is not a good sign for a long term married life. 
You can file for divorce on grounds of mental cruelty and desertion. In case of desertion, the burden of proof lies upon the petitioner. Absence of her conducts giving reasonable cause to the deserting spouse to leave the matrimonial home. Desertion must be for a continuous period of two years.
In your case mental cruelty is a good ground for divorce. Non-consummation can add. Non-consummation means couples are either unable to have successful sexual intercourse because of fear or lacking the power to perform penetrative sex.
A wife who is well qualified and is capable to earn cannot sit idle and claim maintenance from her husband. If a woman’s income is at least half of her husband’s income, then most often she may not get any maintenance. Qualified woman can’t claim maintenance
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0
The subject or title  you have chosen is slightly confusing to the tale you have narrated above.
Well this is a clear cut case of desertion and refusal for conjugal relationship.
If the period of desertion or refusal to have conjugal relationship or cohabitation is more than two years, you can file a contested divorce on the same grounds. 
For this you dont need to have her consent.
Let she contest or even claim the huge alimony amount, you can challenge her claim based on the proof she may produce before court for that.
Her maintenance claim can be repudiated by you on the grounds of her high qualification.
T Kalaiselvan
Advocate, Vellore
13910 Answers
127 Consultations
5.0 on 5.0
1. You are free to file for dissolution of marriage on the ground of cruelty as a spouse denying sex is an act of cruelty on the other. If she files 498A then apply for anticipatory bail to contest the case on merits. 

2. If she files for maintenance then you can contest it on the ground that she has sound educational qualifications and was not subjected to an act of domestic violence.
Ashish Davessar
Advocate, Jaipur
18055 Answers
445 Consultations
5.0 on 5.0
1) GD in locla police station will help your case 

2) correspondence , chat messages , sms will help you in proving that wife was not in laws house since oct 2014 

3)your parents can obtain injunction restraining her from disturbing their possession of the house 

4) wife will seek interim maintenance during pendency of divorce case

5)you can file for divorce on expiry of period of one  year from date of marriage on grounds of cruelty . need not wait for 2 years
Ajay Sethi
Advocate, Mumbai
23100 Answers
1212 Consultations
5.0 on 5.0
1. The 2014 GD will be sufficient if you feel like having one for defending your future cases.


2.  The RCR judgement in your favor will be a strong evidence in your favor.


3.  You have filed the RCR and have got the decision in your favor, so how do you think that you would want to avoid her from entering in your house.  Please remember that she is still your  legally wedded wife hence she has got rights to residence.




4.  It is their decision which cannot be predicted.


5.  You have to make sure that you have followed the formalities after getting RCR judgment

6.   Yes, certainly it can be a weak point to your divorce process.
T Kalaiselvan
Advocate, Vellore
13910 Answers
127 Consultations
5.0 on 5.0
1. GD will certainly be considered as a valuable evidence if called by the Court,

2. When she had left you, you should have filed a police complaint for her leaving you. Normally in such cases, husbands take in writing from the leaving wives that they are leaving the house of their own,

3.If you are staying in the house owned by your father/mother, take up a rented house immediately and file the divorce suit from that rented house. This way you can detach your parents from her future onslaught, if any. Your parents can also file a police complaint against her and after that avail a restrain order on her to enter their house, 

4. Yes, certainly she will appeal for interim order for maintenance which she is entitled to, if she is not employed,

5. Collect all evidence in support of your allegations and construct adequate defense for her retaliation,

6. No. You can file divorce petition after one year of marriage on the ground of cruelty. You can add the ground of desertion after 2 years of her leaving you.
Krishna Kishore Ganguly
Advocate, Kolkata
12034 Answers
227 Consultations
5.0 on 5.0
1. A fresh GD may be filed if there is a fresh threat or apprehension. This will be of limited help.

2. Emails, smses and phone calls asking her to return to her matrimonial home are what you require to prove that she deserted you.

3. During subsistence of marriage she has the right to reside in her matrimonial home. The only way to stop her from entering the house is through a court order in a suit for injunction.

4. She may ask for interim maintenance.

5. Better wait for two years to complete and then go to court. 
Ashish Davessar
Advocate, Jaipur
18055 Answers
445 Consultations
5.0 on 5.0

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