• Marriage - Section 9, 24, 13

I have been married in july 2013. From first night my wife has negative attitude as it was against her wish and threatened me she will do abortion if she become pregnant.I came to Bangalore with her after 12 days of marriage.I was trying to appease her and went to visit few places in karnataka. She somtimes shown love with me as well but sometimes threaten to divorce as well.
  On 23 rd September2013 her Brother in law came and took her with him, she took most gold jewellery as well.later on i saw her marriage profile active at on matrimonial site. and when father called her brother on Deepavali , he told she gone to Pune to search job.My brother and others had gone to her place ,but she denied and told that she would talk me face to face .Later on I gone to my native place and call her brother but they didn't came.
Then we filed case in court for Marriage Restoration (section 9) ,Then she asked for maintenace of 50000 rupees per month.During counselling by judge she told that we have expelled herfor dowry and want to come back if I agree her all conditions , But outside of court her brother told for divorce , but they are asking 3 lakh more rupees and not returning our jewllery worth 1 Lakh.
I was fired by company in Feb 2014 and not got job till yet and she was doing job before marriage,but not now.
Now my advocate suggest that we should file divorce case(section 13).
Now I have doubts-
1.If I ask for divorce then  Will I have to give more maintenance to her ,as she will get sympathy of court?
2 .Should I take back my marriage restoration case ?
Asked 2 years ago in Family Law from Bangalore, Karnataka
Religion: Hindu
Dear Client,
Till the final order of the RCR filed by you agains her  under section 9 of HMA the court will not grant maintainance for her. You are finally advised that, make efforts through negotiations and bargain for Mutual Consent Divorce under section 13 (B) of Hindu Marriage Act.If  you file divorce petition under section 13(1) of HMA it will be difficult to get divorce,  you have to establish her cruelty against you.
Mohammad Khaleel Ahmed
Advocate, Hyderabad
184 Answers
1 Consultations
3.9 on 5.0
Namashkar
No,court cannot show any sympathy to your wife.Moreover,  whatever she ask for maintenance for that you have to file the counter against her claim, and you have to say  your earnings and then  basing on your financial status court will pass the  order.If court passes the  order beyond your financial status you can approach the  apex court.
yes  you can take back the marriage restoration case.
Namavarapu Rajeshwar Rao
Advocate, Hyderabad
13 Answers
0 Consultations
3.7 on 5.0
1. The quantum of maintenance does not depend upon the nature/type of matrimonial suit. In other words the suit for divorce does not compound the existing legal dispute as widely misinterpreted.
2. If you think that in the changed circumstances the suit for restitution of conjugal rights is no more a reality then after withdrawing it  you can file suit for divorce.
It is your call and you have to take this.
Devajyoti Barman
Advocate, Kolkata
5239 Answers
54 Consultations
4.9 on 5.0
Hello,
Whether you file for divorce or not of your wife asks for maintenance you are liable to pay. Usually 1/3 rd of your earning will be ordered as maintenance. It is advisable to negotiate for a Mutually consented divorce as this will help you determine a one time alimony and besides this you will get a decree for divorce.
You can draw up a consent term and this will settle the marital dispute once and for all.
Do provide your input to your lawyer and allow him freedom to conduct the case. It is important you repose your faith in your lawyer.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
in your case it is better you proceed for mutual consent divorce. for this you may mutually settle terms & conditions. as your wife is not willing to join your company no RCR suit is going to make any difference only the thing if she admits this in court she may not get maintenance
Avdhesh Chaudhary
Advocate, Greater Noida
565 Answers
20 Consultations
3.9 on 5.0
1) with draw petition filed by you under section 9 of HMA for RCR 

2) RCR is of no use as even if obtain a decree you cant force your wife to stay with you. at most after obtaining decree if wife refuses to come back you can file for divorce later . 

3) file for divorce on grounds of mental cruelty . refusal to have sex amounts to mental cruelty. 

4) you have not mentioned whether your marriage was consummated or not . 


5) even if you are unemployed you are bound to maintain your wife . court will direct you to pay maintenance . 


6) it is better to file for divorce by mutual consent as you can get divorce in 6 months time . 

7) contested divorce cases take around 5 years to be disposed of
Ajay Sethi
Advocate, Mumbai
23325 Answers
1220 Consultations
5.0 on 5.0
1. You should withdraw RCR in the given circumstances as even if it is allowed it wont bring the desired result in as much as your wife may still refuse to return to her matrimonial house. Filing for divorce is what the situation demands. The amount of maintenance which the court will grant to her has no co-relation with any case, divorce or restoration, pending in any court. Even if the restoration was already granted by now the court could still have allowed her a higher amount of maintenance. Every case is special on its own merit, so her maintenance claim will be decided regardless of any other case pending between both of you. She cannot get any sympathy of the court if a case for divorce is filed against her. 

2. As mentioned earlier, further continuing the restoration case in the given circumstances will be an exercise in futility.

3. Mutual Divorce is what you should be looking forward to as it hassle free divorce.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
1. if u file divorce case in court then court can award 1/3 of ur salary amount as maintenance to ur wife.

2.better withdraw RCR case from court as it is futile exercise.

3. ur advocate is right. file divorce petition in family court on grounds of mental creulty and desertion.

4.best remedy for you is to go for MCD if ur wife agree for it.

5. rate my reply also.
R.K. Nanda
Advocate, New Delhi
457 Answers
0 Consultations
3.8 on 5.0
1. Filing of RCR case is wastage of time and money. Even if you get favourable order, your wife may refuse to join you and no Court can force an unwilling wife to join her husband,

2. You shall have to provide her maintenance even by begging or borrowing as has been stated by the Apex court,

3. Talk to her and go for mutual consent divorce amivably by giving her some compensation,

4. MCD is quickest and hassle free.
Krishna Kishore Ganguly
Advocate, Kolkata
12127 Answers
233 Consultations
5.0 on 5.0
Hi, it is your duty to pay the maintenance, it is better go for divorce and contest the case or settle the matter amicably and file a petition for divorce for mutual consent.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. Maintenance decided by the court on the basis of living standard, income of husband, in case wife is a working lady then it is also take in consideration that how much she earns or likely to earn ( in case she resigned), amount of maintenance would be lowered by these mitigating factors . But in all cases you are bound to maintain her.

2. She already said before the judge that you expelled her for demand of dowry and also her brother seeks 3 lakh rupees from you, so it is very tough for you to file suit under section 13 B i.e. divorce by mutual consent.

3. At this stage it can't be said that your marriage went fail, you should give one more chance to your wife to consider all the facts and future aspects of her life, mainly her life after divorce, so in this regard case filed for restoration of conjugal right is right step. It shows that you want to live with her.

4. If your wife want to get divorce she will file a case for cruelty under section 489 A IPC and now she is bound to proof cruelty from your side. In this condition it'll be easy for you defend yourself if there is no fault done by you. 

5. You should join your job or search any job, it'll be good for you because resign from a job and  stay at home may infers that you want to set you goal or evade himself for maintenance.
Shivendra Pratap Singh
Advocate, Lucknow
2760 Answers
41 Consultations
4.9 on 5.0
if she doesnt joins you without a valid reason that itself is a ground for divorce. you can file divorce case on  the ground of cruelty and desertion
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
withdraw RCR case from court as it is futile exercise for she wont come back to you as her  brother told you.
File  divorce petition in family court on grounds of cruelty refusal of sex amounts to cruelty but it may take years to conclude so try for MCD if she agrees for it. Whether employed or not, you have to maintain your wife if she is not having any source of income to maintain herself.
S.P. Srivastava
Advocate, New Delhi
703 Answers
13 Consultations
4.8 on 5.0
if it is not possible to live together them Mutual consent divorce is best option for both the parties, try to settle the matter amicable. it will be better
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0
1. The issue of compensation will arise only if your wife files domestic violence proceeding against you. Her refusal to return to you cannot operate to oust her right to seek compensation/maintenance from you. 

2. The hearing in section 24 is still underway according to the facts furnished by you. If the court awards her financial support you would have to honour the judgment. 

3. It is up to you if you wish to file for divorce or wait for your wife to file it. In the event she files divorce you would get an opportunity to contest it. There are no pros and cons of you or she filing for divorce. Regardless of who among you files for divorce, the allegations leveled in the divorce petition will have to be proved. If they are not proved the petition will eventually be dismissed.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
5.0 on 5.0
how you can file both things together ie section9& divorce. if you want to file divorce you have to withdraw section9 before that. section 24 is for intriem maintenance if awarded you have to before any proceeding under section 9
Avdhesh Chaudhary
Advocate, Greater Noida
565 Answers
20 Consultations
3.9 on 5.0
1.no,if she doesn't come back after court order then  court will  not  exempt you from compensation.

2.yes.

3.yes.

4.first withdraw RCR and then file divorce petition.

5.depends on facts stated in divorce petition.
R.K. Nanda
Advocate, New Delhi
457 Answers
0 Consultations
3.8 on 5.0
Dear Client,
You need not pay as she demand . Let  continue her activity before court. Nothing will happen , if the court grant maintainance to her , you have option to approach High Court through reivision under 482 crpc. Wait till she agree your terms of divorce.
Mohammad Khaleel Ahmed
Advocate, Hyderabad
184 Answers
1 Consultations
3.9 on 5.0
Hi, even if your restitution of conjugal right case allowed you can't fore her come back to your home and court will not do so and question of maintenance you have to pay and it is duty bound to pay the maintenance and it is better file for divorce.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. Your publishing advertisement after she left is not at all prudent legally and it awarded an excuse in your wife's hand for not returning to you,

2. If she does not return to you even after Court order without any valid reason, then certainly it will go in your favour about payment of compensation to her,

3. The hearing u/s24 is pending and your lawyer should advance above reason for not paying any compensation,

4. It hardly makes any difference who files the divorce suit first. The suits will be considered on merit only.
Krishna Kishore Ganguly
Advocate, Kolkata
12127 Answers
233 Consultations
5.0 on 5.0
If she doesn't come back without stating a cogent and valid reason she is not entitled to get maintainence. That it self is a good ground for divorce
Jeshma Mohandas KP
Advocate, Kozhikode
567 Answers
1 Consultations
3.5 on 5.0
1) if your wife is unwilling to return to her matrimonial home dont bow down to your in law demands . in case court passes decree for RCR and your wife refuses to stay with you then you can file for divorce after expiry of 1 year . 

2) wife who deserts her husband without sufficient cause is not entitled to maintenance . 

3) if hearing has taken place on wife application under section 24 HMA you would have to comply with court orders passed in this regard . if you are aggrieved by order you can move HC against said order . 

4)we had earlier advised you to with draw RCR and file for divorce . 

5) you cant keep on waiting indefinitely for your wife to file for divorce . as it is contested divorce cases take 5 years to be disposed of . better file for divorce at earliest . if you arrive at an settlement said petition for divorce can be converted into divorce by mutual consent
Ajay Sethi
Advocate, Mumbai
23325 Answers
1220 Consultations
5.0 on 5.0
Dear Querist
my opinion on your queries are as under:

1.She is unwilling to come back and my inLaws want extra money from me, But I want to minimize the compensation,Now if she doesn't come back after court order then whether court will exempt from compensation?If it is there please let me know Section number.
Opiniop: is there any pending application under section 25 of Hindu Marriage Act for alimony or not? if not then no need to worry for compensation. the court can not pass any order which is not mentioned in prayer or if there is no specific application filed by the petitioner.

2. Hearing on section 24  happened only  ,should I delay compensation until hearing on section 9 happens?
Opinion: In section 24 of HMA she is entitle to get pendelite maintenance only and nothing else and for this she should be unable to maintain herself and you have sufficient means, then only the court may pass any order, you may press over section 9 more then divorce.
 
3. Should I wait for divorce petition from their side?
Opinion: When you filed RCR then till the final disposal of the RCR you can not file the divorce case.

4.Relatives of wife already met to my advocate, after that my advocate wants that I should file divorce petition.
If I file divorce petition they will allege me as I want to divorce her to get more dowry from next marriage, I had given advt for marriage in magazine when  she left me last year, She has already made these during counseling .She wanted  to show that we teased her to leave . 

Opinion: No need to file any divorce case till the final disposal of RCR case if any. otherwise you may try for mutual consent divorce.

5 What is cons and pro whether they file Divorce petition or I file it?( Please consider compensation amount as well. )
Opinion: Future is uncertain and without allegations and facts I can not discuss the cons and pro of divorce.
Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
4.9 on 5.0

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