• About conjugal right

My daughter has filed a case against my son in law for domestic violence,dowry and claim for maintenance for herself and her 2 infants sons.the case is hearing in an Assam SDJM COURT
husband is working a para govt. dept. in assam.in the meantime the son in law approach a family court for a conjugal right, my daughter is not at all interested to live with the cruel and greedy husband
and accordingly she even refuse to appear the family court.
Now the point is if she continue does so, i.e to avoid the family court  and only concentrate the case she filled in the SDJM COURT, How the family court see this denial of appearence,Plz.advice
Asked 4 months ago in Family Law from Guwahati, Assam
Religion: Muslim
Appear before the court and fight the RCR case the court can not force to your daughter to live with her.
If court pass an RCR decree against her then the maintenance case will be effected for your daughter, even if he claim child custody then this decree will effect.
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Nadeem Qureshi
Advocate, New Delhi
3537 Answers
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wife is bound to appear before the family court if she has been served through notice by the Hon´ble court otherwise bailable warrant can b issued against her
Keshav Kumar
Advocate, New Delhi
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0 Consultations
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Immediately file a reply on RCR case and also fight strongly child custody case, prove before the court the he is not best person for welfare of children, the welfare of children is prime concern of the court and proved before the court that she is best person for welfare of children.

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Nadeem Qureshi
Advocate, New Delhi
3537 Answers
130 Consultations
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The case instituted by husband of your daughter in family court as I understand is for restitution of conjugal rights under sec 9 of HMA,which is a civil nature. Your daughter may choose to ignore the court summons in this regard. However,suit for divorce on the ground of cruelty and maintenance etc has to be decided by family court. 
Sushil Jha
Advocate, Patna
161 Answers
1 Consultations
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Marriage under all matrimonial laws is union imposing upon each of the spouses certain marital duties and gives to each of them certain legal rights. The necessary implication of marriage is that parties will live together. Each spouse is entitled to comfort consortium of the other. So after the solemnisation of the marriage if either of the spouses without reasonable excuse withdraws himself or herself from the society of the other then aggrieved party has a legal right to file a petition in the matrimonial court for restitution of conjugal rights.The restitution of conjugal rights is often regarded as a matrimonial remedy. The remedy of restitution of conjugal rights is a positive remedy that requires both parties to the marriage to live together and cohabit.

Appearing before the court is the duty of a person. If the notice is served properly and the respondent does not attended before the court, then he become declared as exparty. Desertion without any cause much affected the other claims of your daughter. fight the RCR case properly .

Children are fragile, handle them with care. If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access.The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute. in the proceedings related to custody and visitation rights of the minor children, the interest and welfare as well as the desire and decision of the minor children is of paramount concern and should not be based on the ego satisfaction of the warring parents.
Ajay N S
Advocate, Ernakulam
1916 Answers
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Dont take me wrong as per i can read is u belong to muslim community 
For the question u habe asked no court can pass impunge order to bound ur daughter to live with her husband. The court cando counselling. But it is on the patties if they want to cohabit together or not.
Ask her to join family court 
Shivam Sood
Advocate, Ludhiana
80 Answers
0 Consultations
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Your daughter has to appear in court and contest false RCR case filed by husband 

2) if she does not appear court would pass exparte decree on husband favour 

3) if she does not want to stay with husband then daughter should file for divorce on grounds of mental cruelty 

4) both suits would be clubbed together 
Ajay Sethi
Advocate, Mumbai
23370 Answers
1224 Consultations
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Custody of infants would be awarded to mother 

2) father would be seeded visitation rights 

3) welfare of children is paramount consideration 
Ajay Sethi
Advocate, Mumbai
23370 Answers
1224 Consultations
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RCR is useless 

2) even if husband obtains decree of RCR   he cannot force wife to stay with him 

3) but if wife refuses to stay with husband inspite of   decree of RCR being passed husband can file for divorce on expiry of period of one year 
Ajay Sethi
Advocate, Mumbai
23370 Answers
1224 Consultations
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Hello,
1) It is not appropriate to avoid appearance in the Family court and constant willful absence may be construed as  deliberate attempts to delay the process and probably admission of gilt. Therefore let your daughter reply to the RCR on grounds of cruelty and refuse to join him at the matrimonial home.

2) As they are infants the balance of favour weighs in favour of your daughter. Apart from this as the husband is full time employed, the kids would be taken care of by a third party and a mother would be the best guardian under circumstances. This must clinch your argument for custody. Be open to allow him visitation rights.
S J Mathew
Advocate, Mumbai
1954 Answers
65 Consultations
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Hi
 Your daughter has to appear in the court and reply .Her absence will help the husband to get a RCR decree.
 If she has reasons to stay away due to domestic violence , she ha sto file a reply accordingly submitting the documents of the cases pending .
in the RCR she can also file the litigation charges, maintenance for herself an d the children.
The RCR has been filed to make a defense for himself to disprove your daughter's allegations of domestic violence nad cruelty, so it is important that she should appear in the court and defend it
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
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1. Ask your daughter to attend the RCR case duly contesting the application otherwise it will be easier for her husband to get a favourable order directing your daughter to join her husband and in case she refuses to comply with the said Court order to join him, it will be easy for him to get decree of divorce with no or minimum compensation/alimony,

2. She can continue pursing the cases filed by her.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
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1. She should contest the child custody case filed by her husband fittingly,

2. mother is the natural guardian of children up to their 5 years of age.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
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Now the point is if she continue does so, i.e to avoid the family court  and only concentrate the case she filled in the SDJM COURT, How the family court see this denial of appearence,Plz.advice


It is her wrong decision to not to attend the hearing before the family court in the RCR petition.

If the court is passing an exparte decision in the RCR case she may stand to lose the other criminal cases like DV and maintenance cases if your son in law produces the judgment in RCR case before that court.


Let she simultaneously attend the RCR case too and express her grievances that why she is declining the offer to rejoin him narrating the cruel incidences in her counter. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
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He is also approach with the same SDJM court for his sons Custody,Plz. advice how we could strongly challenge his claim of custody.

This depends on the prevailing circumstances. 
Your daughter  should vehemently oppose his petition for child custody and argue that her husband is not trustworthy especially in the interest of the children. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
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1. It is wrong to not to appear in the court on summons. If she does not want to reside with her husband then the court will not force her to do the contrary, but if she dishonours the summons it will result in passing of an adverse ex parte decree against her, which can be executed and will result in denial of maintenance to her. 

2. She is free to contest the case of child custody on merits by leading evidence to prove that she is better placed than her husband to secure the welfare of children.
Ashish Davessar
Advocate, Jaipur
18190 Answers
449 Consultations
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you daughter must appear before family court and defend the case conjugal right case strongly with all defense as other wise ex-party and ex-partie orders will be passed and all the cases and effort will in vain. 
Lakshmi Kanth
Advocate, Hyderabad
230 Answers
2 Consultations
4.8 on 5.0

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