Divorce by Men: Shall Men Not File for Divorce

I have been attached to a few Men’s Rights Groups. Overall, the group mood is that Man should not file for divorce as he is unlikely to get the same and should contest tooth and nail if filed by a wife. So much so that in the cases of Adultery as well, when there are clear-cut proofs, men are advised not to file divorce and sometimes suggested to file RCR.

Myths include:

1. If husband files divorce he would have to pay more alimony.
2. The 498a (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023) wife will be set free to remarry and husband will be left handling the 498a (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023)etc.
3. Divorce cases run for years.
4. Cruelty and Adultery is near impossible to prove. Courts only treat the word of woman as true.
5. Add to this a strong sentiment of ZERO settlement.
6. One should tire the wife out and be patient till she comes forward for negotiated settlement.
7. And finally that divorce is easy when a man is acquitted of 498a (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharariya Nyaya Sanhita, 2023). This final point is often laced with a statement that the conviction rate of 498a is just 2%.

Let’s look at all these myths individually.

A. Alimony/ Maintenance

There is no truth in the above statement that men must pay more for AlimonyAlimony if they file for divorce. Alimony and Maintenance do not depend on who filed for divorce and when. It depends on factors like who has more income and who needs Maintenance. And in almost all cases, matrimonial cases often come with maintenance petitions.

Also, suppose one looks at the provision of S. 25 of HMA and the corresponding provision in SMA. In that case, one can see that the parties’ conduct is essential in deciding AlimonyAlimony. In effect, if the divorce is granted in favour of the husband and mentioning that the wife was the erring party in the relation, the AlimonyAlimony so decided will be less than if the divorce is granted in favour of the wife and mentioning that the husband was the erring party.

B. 498a wife will be set free while husband will be left with 498a

Looking life from the viewpoint of 498a (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) is fatal. One should look for his own fulfilling life and not keep someone else in a ditch. As long as the wife is in marriage, so are you. You also can not get remarried. And if you think of extra-marital for your own needs, please bear that the odds are stacked against you even there. False Rape cases are the next 498a (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023), and it is not uncommon for women to accuse men of bigamy etc.

And when a man gets divorced, proving that the wife is the erring party is not that admissible evidence in 498a (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) case. That strengthens your defences in 498a (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) and not weakens it.

Divorce Cases run for years. Men do not get divorced in India.

However, I shall concede that there has been an explosion of divorce cases in recent years, and there are not enough courts available to tackle the same. Naturally, most of the cases are delayed. The litigants are also to blame for the same. I have often seen parties delaying their cases on one ground or another. But waiting will not resolve this problem. If, say, it takes three years to get a divorce case decided. If you start in 2016, your case will be decided in 2019. However, if you wait till 2019 to file for divorce, your case will be decided in 2019. This situation is also improving drastically. For example, divorce cases are now being decided in Haryana in 18-24 months. So, as the Justice delivery mechanism for other things improves, it shall improve for family cases, too.

Time is of the essence. The words of Napoleon ring in my ear often. “Space we can recover; lost time never.” You spend each day of your youth waiting for something to get over, one day wasted without living fully.

D. Cruelty and Adultery are impossible to prove/ Men don’t get divorced in India.

There is nothing further than the truth. Cruelty and Adultery can be proved by the same kind of evidence which are used to prove dowry harassment. Moreover, one has to understand that in civil cases, the proof required is that of the preponderance of probability vis a vis strict proof required in criminal cases. These links can help you to know how you can prove Adultery/ Cruelty.

E. Men should strive for ZERO Settlement

Often, when a divorce case is fought, people are saddled with a dilemma in Meditation. To settle the case and get a faster divorce. Here, men are often prodded to go for a ZERO Settlement or pay ZERO alimony/ maintenance. Sometimes, that becomes a stumbling block in getting a divorce.

I had a sage Maths teacher. He taught us that ZERO is not a value. Rather, it is a concept. ZERO is just the absence of anything. Zilch. Nothing. And how can we achieve nothing? There are two other concepts in economics that very few people understand: Opportunity Cost, which is the loss of other alternatives when one alternative is chosen. One constantly spends money on litigation, maintenance, child support, loss of earnings when attending mundane court dates, cost of travel, and missed opportunities of pleasure, business or work. The other concept is cost-benefit analysis, a systematic approach to understanding the benefits of various alternatives and choosing which is best for a given set of benefits.

So when looking for ZERO Settlement, one has to look at what price you are paying in terms of Opportunity Cost and also what benefits accrue by fast settlement. One has to also look at whether the wife/ children will get any maintenance. Because, in certain cases, it is impossible to avoid interim maintenance.

F. Tire them Out

I have not heard anything absurd than this. (Maybe it works for people whose marriages are short-lived and no baby is involved. However, in such cases, mostly women accuse men of being impotent and file annulment on this ground. ) However, with marriages in which the woman is in her late twenties or early thirties or has a child, this technique may not work. The reason is straightforward. Unlike men, women have an expiry date of marriage. And most women won’t let you go when they reach that age. They will fight cases tooth and nail and want to return to the matrimonial house/ stay with you.

Also, in this case, you are letting the other person have control. They can also tire you out. When testing someone else’s patience, you don’t know the limits.

G. Wait for Acquittal in 498a/ allied offences; after all, the conviction rate is just 2% for 498a.

Yes, the conviction rate is less than 2% of all the cases of 498a (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) filed. But, and a big but, most of the cases are settled in-between. So, we cannot take the conviction rates purely on the number of cases filed to where conviction occurs. In cases where the trial has concluded, 498a (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023) has a healthy conviction rate of over 25% at the trial court level.

Further, have you seen any decision of the husband acquitted of 498a (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023)? Most of the time, the order reads, Acquitted because the prosecution could not prove the case. They said that just because you are acquitted is no grounds for divorce. Only a false 498a (Husband or relative of husband of a woman subjecting her to cruelty: Proposed Section 84 of The Bharatiya Nyaya Sanhita, 2023)is a ground for divorce as it comes under cruelty. Also, the divorce trial will still take its own sweet time, which is one of the reasons you did not file for divorce in the first stage.

This said I don’t prod anyone to file for divorce at the drop of a hat. Filing for divorce must be a well-thought decision based on your conviction that you cannot stay with your wife. Also, sit with an expert to assess whether you have enough grounds and evidence to secure a divorce.

Just like “Men shall not file for Divorce”, a blanket statement “File for Divorce” can be a costly mistake!!!

Read more on the same subject and find out if Men should file Restitution of Conjugal Rights (RCR) here