There is a common belief that when the wife’s side files 498a/DV or any such package cases, the husband who has already filed RCR wishes to withdraw the RCR case and file for divorce on the ground of cruelty.

Experience shows that it is difficult to prove cruelty, and the chances of getting a divorce on the ground of cruelty are not that easy.

Now the question arises: what to do with a pending RCR case? Should we contest and get a decree, and what if the wife does or does not join? You need to understand one thing: if the wife has filed 498a and DV, the chances of her rejoining you are next to nil. So even if you get a decree of RCR in your favor, she will not join you.

Although the impact of an RCR decree with 125CrPC (i.e., wife left without any reasonable cause) is still pending consideration by the Hon’ble Supreme Court, the court does consider the effort you made in obtaining the RCR decree, which remained unexecuted and will impact maintenance.

So overall, RCR does have some benefits over directly filing for divorce. But getting an RCR decree will not grant you a divorce, and you cannot move on with your life.

True, RCR is the opposite of divorce; by virtue of an RCR decree, you want your wife back and nothing more. The court will grant the decree and ask the wife to rejoin the husband, but the court cannot forcefully compel the wife to rejoin the husband.

How will you use the RCR decree to get a divorce then?

Well, the answer to this lies in section Section 13(1)(ia) and section 13(1A)(ii) under this ground if party do not resume cohabitation within a period of 1 year of the passing of restitution of conjugal rights. The divorce is granted under section 13(1A)(ii).

So RCR is helpful in getting divorce and chances of divorce increases when such case is presented. Also if wife files RCR and husband files for divorce then also husband can take benefit of section 13(1A)(ii).

This is also evident from the language of under Section 13 (1A) (ii) of the HMA which is to the effect that “either party”, which includes the decree holder as well as the judgment debtor, who can seek divorce in case of non- compliance of decree of Restitution of Conjugal Rights. If the Parliament intended that it is only the party in whose favour the restitution has been allowed, who can avail the remedy under Section 13 (1A) (ii) of the HMA, then the language would have been accordingly used in the said Section. The very fact that Section 13 (1A) (ii) of the Hindu Marriage Act, enures to the benefit of “either party” clearly implies that in case of non-compliance of a Decree under Section 9 of the HMA, either party is entitled to seek divorce on this ground and the Judgment Debtor cannot be precluded from exercising his right to avail the relief thereof. Section 23 cannot be interpreted in a way to completely render the remedy under Section 13 (1A)

Nitish Banka

Nitish Banka is an advocate practicing in Supreme Court of India and can be reached at [email protected] or 9891549997