Last Updated on January 6, 2023 by Satish Mishra
RCR stands for Restitution of Conjugal Rights under Section 9 of Hindu Marriage Act, 1955. When either of husband or wife leaves matrimony without reasonable excuse, which then court will examine is made out or not.
Through this analysis, the author will try to understand the concept of restitution of conjugal rights as under the Hindu Marriage act, 1955. This analysis will provide an in-depth assimilation of the extent of the power the courts enjoy in such cases. It will also highlight the importance of the effort shown by the plaintiff in such cases. Lastly, with the help of the various cases cited in the judgement of this particular case, this analysis will explain the concept of cruelty and dissertation.
Judgment Quoted – Restitution of Conjugal Rights (Jitendra Kumar vs Ankita Sharma @ Thakur on 6 April, 2021)
Facts
By the impugned Judgment dated 25.5.2017 and decree dated 2.6.2017, passed by the learned Additional Principal Judge, Family Court, Dhanbad, in Title Matrimonial Suit No. 413 of 2016, the learned Addl. Family Court, Dhanbad has dismissed the suit, instituted by the petitioner/appellant- husband for dissolution of marriage with the respondent-wife on the ground of cruelty and desertion and also for not obeying the Judgment dated 18.6.2014 and the decree of restitution of conjugal right dated 25.6.2014, passed against the defendant earlier in Title Matrimonial Suit No. 177 of 2011 by the learned Principal Judge, Family Court, Dhanbad.
The respondent, despite valid service of notice and substituted service of notice by publication did not appear before the Family Court and was debarred from filing the written statement in Title Matrimonial Suit No. 177 of 2011, which was decreed ex-parte in favour of the plaintiff-husband for restitution of conjugal rights.
The parties had entered into marriage as per Hindu rites and ceremonies on 28.6.2009, as per the case pleaded by the plaintiff-husband. They The Hon’ble Court leading happy married life at their marital home, but the parents of the defendant wanted him to reside as gharjamai. On 22.3.2011, the defendant left his house with all the belongings and flatly refused to lead a conjugal life with him. Title Matrimonial Suit No. 177 of 2011 was then preferred by the husband for restitution of conjugal right. The plaintiff had filed two affidavits in T.M.S. No. 177/2011 in examination-in-chief. One by his father and the other by himself as P.W.-1 and P.W.-2. Apparently, no appeal was preferred by the defendant wife against the decree of restitution of conjugal rights. The instant O.S. No. 413 of 2016 was instituted against the respondent-wife on the ground of cruelty and desertion and also for not obeying the decree of restitution of conjugal rights, passed against her, in terms of Section 13(1) (i-a)(i-b), (1-A) (ii) of the Hindu Marriage Act, 1955.
Also Read- RESTITUTION OF CONJUGAL RIGHTS (RCR)CASE CHANDIGARH PANCHKULA MOHALI
Issues Involved
(a) Whether the plaintiff was subjected to cruelty and desertion by the defendant ?
(b) Whether the marriage between the plaintiff and the defendant is liable to be dissolved on the ground of cruelty and desertion and also for non- compliance of the order passed by the Court under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights by defendant?
Rules and Laws
- Section 498-Aof the I.P.C.- Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purpose of this section, “cruelty” means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
- Section 13(1) (1-A) (ii) of the Hindu Marriage Act, 1955.
- Saroj Rani Versus Sudarshan Kumar Chadha, reported in (1984) 4 SCC- the absence of any facts pleaded and the allegation made by the wife before the Trial Court or before this Court, the learned Additional Family Court, Dhanbad could not have denied the relief to the plaintiff-husband on the ground that the plaintiff is taking advantage of his own wrong, as per Section 23(1)of the Act of 1955. He submits that the manner in which the respondent has refused to appear and contest the proceedings in Title Matrimonial Suit No. 177 of 2011 and in the instant O.S. No. 413 of 2016 as also in the present appeal is indicative of her complete indifference and disinterest to the matrimonial relationship.
- Samar Ghosh v. Jaya Ghosh, reported in (2007) 4 SCC 511- such a continuous and persistent negligence of matrimonial relationship on her part without any basis, for a period of ten years by now, would in itself amount to mental cruelty.
Also Read- A Comparison Between RCR and Divorce – Vakilsearch
Findings of Court
The Hon’ble Court have considered the submissions of learned counsel for the appellant and taken into account the relevant material pleadings and evidence, available from the Lower Court Records. The Hon’ble Court have also perused the impugned judgment and the judgment dated 18th June, 2014, passed in Title Matrimonial Suit No. 177 of 2011, whereby the decree of restitution of conjugal rights was granted in favour of the appellant ex-parte against the respondent. On a careful analysis of the materials available on record, it appears that the plaintiff-husband instituted Title Matrimonial Suit No. 177 of 2011, under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights, on the plea that the respondent left the matrimonial home on 21st March, 2011 without his consent and without any reasonable cause. Title Matrimonial Suit No. 177 of 2011 was allowed The Hon’ble Court and decreed in his favour without any contest, despite valid service of notice and even substituted service of notice upon the respondent. The respondent despite service of legal notice did not resume conjugal ties. It does not appear that the judgment and decree passed in Title Matrimonial Suit No. 177 of 2011 was subjected to any challenge by her. Plaintiff-husband, thereafter instituted the instant O.S. No. 413 of 2016 seeking divorce on multiple grounds of cruelty and desertion and also for not obeying the decree of restitution of conjugal rights passed against her earlier, under Section 13(1) (i-a)(i-b), (1-A) (ii) of the Hindu Marriage Act, 1955. The defendant again did not contest the suit, despite valid service of notice. Admittedly, she did not take any plea based upon institution of C.P. Case No. 3039(C)/2011 or institution of M.P. Case No. 176 of 2012 for living separately from the petitioner-husband as a reasonable excuse for leaving the matrimonial home.
Also Read- Whether to file RCR or section 9 of HMA if wife has abandoned
The learned Additional Family Court, Dhanbad, however, took these two factors against the plaintiff-husband to hold that he had obtained the decree of restitution of conjugal rights by suppression of facts. As it appears from the submission of learned counsel for the appellant, the C.P. Case No. 3039(C)/2011 was instituted after the institution of Title Matrimonial Suit No. 177 of 2011 by the plaintiff-husband. The C.P. Case No. 3039(C)/2011 instituted with allegation under Section 498-A of the IPC, is said to be pending. There was no finding of the competent court of criminal jurisdiction before the learned Addl. Family Court, Dhanbad to the effect that the allegations of cruelty in marriage made in the C.P. Case No. 3039(C)/2011 were found to be true against the plaintiff-husband. Mere institution of a criminal case under Section 498-A of the IPC could or could not be a reasonable ground for leaving the matrimonial home depending upon the facts and circumstances of each case. The respondent had not chosen to raise any such plea based upon the pendency of C.P. Case No. 3039(C)/2011 against the plaintiff- husband. On the other hand respondent by refusing to contest the Title Matrimonial Suit No. 177 of 2011 or the instant O.S. No. 413 of 2016 consciously waived her right to take any such plea. In the instant appeal, the respondent has chosen not to appear and contest despite valid service of notice twice. In terms of Section 23 of the Hindu Marriage Act, 1955, no party can be allowed to take advantage of his own wrong. Section 23(2) further provides that before proceeding to grant any relief under this Act , it shall be duty of the Court in the first instance, in every case where it is possible so to do consistently with the nature and circumstances of the case, to make every endeavour to bring about a reconciliation between the parties. The respondent by refusing to appear in the instant appeal has precluded the Court from making any such endeavour to bring about reconciliation between the parties. As a matter of fact by not only refusing to resume conjugal ties in obedience of the decree of restitution of conjugal rights and further by not contesting the instant O.S. No. 413 of 2016 and the present appeal, respondent has created an impression that she is not interested in maintaining the conjugal ties with the plaintiff-husband. In the absence of any contest by the respondent, it is not proper to draw an inference that the plaintiff is taking advantage of his own wrong. What wrong could it be, in itself, is a matter of question and speculation. The plaintiff, on the other hand appears to be pursuing his remedies lawfully, while the respondent has chosen not to appear and contest.
However, The Hon’ble Court are not in a position to render any finding on the ground of cruelty and desertion on the basis of the materials on record. As submitted by learned counsel for the appellant, CP case is pending since the complainant/respondent is not appearing for evidence. However, on the ground of non-compliance of the decree of restitution of conjugal rights in terms of Section 13(1-A) (ii) of the Hindu Marriage Act, 1955, in the light of the facts and circumstances discussed above, there is no reason why a decree of dissolution of marriage should not be granted in his favour. The Hon’ble Court do not find any disentitling grounds to deny the relief to the appellant, under Section 13(1-A) (ii) of the Hindu Marriage Act, 1955.
Also Read- Shefali Khan Dewal vs Saurabh Khandelwal on 29 March, 2019
Accordingly, the appeal was allowed by The Hon’ble Court. The impugned Judgment dated 25.5.2017 and decree dated 2.6.2017, passed by the learned Additional Principal Judge, Family Court, Dhanbad, in Title Matrimonial Suit No. 413 of 2016 The Hon’ble Court, hereby, set aside. The marriage between the parties stood dissolved on the ground of failure on the part of the respondent to comply the decree of restitution of conjugal rights by the respondent-wife, in terms of Section 13 (1-A) (ii) of the Hindu Marriage Act, 1955.
Conclusion
In conclusion, The Hon’ble Court can say that, in the cases where the plaintiff has not taken enough steps to prove his/her intensions to fulfill the decree, in such cases they are said to have approached the court with not-clean hands and in such a situation, the court takes that into consideration. However through this case one can also see that in situations where a person leaves their marriage without any justification, restitution of conjugal rights can be granted.
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