My spouse left her matrimonial home along with our 8 month’s old son in Jun’ 2016 with her father and since then we have been living separately. The issue unfolded when I fell sick in the month of Jul’ 2016 and requested her to return back which she refused and didn’t even bothered to inquire about my well-being at all. Though I realised this a little late but she took away all the jewellery including the one which was gifted to me. After which, post my recovery, I made a visit to her paternal home in Jul’ 2016 to bring her and our son back which she refused again on the pretext that she does not like staying with me at her matrimonial home and rather wanted to meet my parents along with hers’ to discuss a couple of petty issues which she has woven over the time for e.g. Sharing of bank a/c passwords, marriage registration, involvement in finance etc(These along with some others were basically hard stop conditions for her return) We(Myself and my family) have made numerous efforts to reconcile the matter through dialogue along with face to face meetings however the situation still remains the same and for the last couple of months we have stopped communicating with each other at all. I understand that no one can force anyone to continue a relationship especially when there is no trust, affection, intimacy amongst the partners. Given the overall situation even I don’t see a point that this marriage could work anymore and hence want to end this amicably. Can you please advise what should be my next step - 1. File a RCR ? and then go for a divorce with mutual consent, if possible ? 2. In my case how should a RCR be drafted to be impactful with no loop-holes? 3. Should the settlement be done before we file a mutual divorce or later? 4. What points should be considered and articulated for a mutual divorce(if possible) so that there is no issue in future?
1.Yes,there is no harmin fling RCR. Whether mutual settlement occurs or not you pursue the RCR.
2. Drafting is the job of the lawyer which would draft the same on your advice. It must highlight your good things and her bad things.
3. If and when settlement occurs then only mutual divorce is filed.
4. Mention of withdrawal of allegations and her waiver of right of maintenance.
These are main points. For other important points you take advice of your lawyer.
File for divorce by mutual consent
2)no need to file RCR as your wife does not want to stay with you
3) if you want to file RCR mention efforts made by you to save your marriage, visits made to her parental home
4) in MCD it should be mentioned that streedhan is in wife possession and no exchanges are pending between parties
5) maintenance of child , alimony should be mentioned
6) it should be mentioned that you would have joint custody of the son
1. RCR is always a good move in such a scenario as by filing it the husband is able to make a positive declaration of his intention to cohabit with his wife. It can be withdrawn if both the spouses are into a positive agreement to split amicably through a mutual consent divorce.
2. Drafting the RCR is the job of your lawyer.
3. MOU has to be executed before filing mutual consent divorce.
Can you please advise what should be my next step -
1. File a RCR ? and then go for a divorce with mutual consent, if possible ?
It is not advisable to file a RCR case for any reason.
If she has clearly indicated that she is not willing to live with you anymore there is no point in filing the restitution of conjugal rights case.
Even if the court decrees the case in your favor you cannot compel your unwilling wife to live with you.
Therefore you may better go for divorce case directly, fist ask her if she agrees for filing divorce on the grounds of mutual consent, if she declines the offer then you may file contested divorce case on the grounds of cruelty and desertion.
2. In my case how should a RCR be drafted to be impactful with no loop-holes?
If you are interested i filing RCR only then you may contact a local advocate who will help you draft the petition and file the case.
3. Should the settlement be done before we file a mutual divorce or later?
The settlement, as per negotiations and the agreement thereon, can be settled accordingly, there is no hard and fast rules about this.
4. What points should be considered and articulated for a mutual divorce(if possible) so that there is no issue in future?
The points that are to be taken care of shall be:
the one time setlement amount and mode of payment including number of installments;
exchange of each other's articles;
the custody of child with whom and who will bear the expenses for child's education and future well being etc., ;
Visitation rights of child if custody is with her;
Any other issue of concern including an undertaking that nobody will sue each other in future once this marriage is dissolved by a decree of divorce.
