Shall Men Not File For Divorce? | Shonee Kapoor
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Shall Men Not File For Divorce?

Divorce by men

 
I have been attached to few Men’s Rights Groups in my life. Overall the mood in groups 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:

a. If husband files divorce he would have to pay more alimony.
b. The 498a wife will be set free to remarry and husband will be left handling the 498a etc.
c. Divorce cases run for years.
d. Cruelty and Adultery is near impossible to prove. Courts only treat the word of woman as true.
e. Add to this a strong sentiment of ZERO settlement.
f. One should tire the wife out and be patient till she comes forward for negotiated settlement.
g. And finally that divorce is easy when a man is acquitted of 498a. 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 one by one.
 
A. Alimony/ Maintenance

There is no truth in the above statement that men need to pay more alimony if he files for divorce. Alimony and Maintenance does not depend upon who filed divorce and when. It depends on factors like who has more income and who is in need of maintenance. And in almost all cases matrimonial cases often come with maintenance petition.

Also, if one looks at the provision of S. 25 of HMA and corresponding provision in SMA, one can see that the conduct of the parties is an important factor in deciding Alimony. Which in effect means if the divorce is granted in favour of husband and mentioning that wife was the erring party in the relation, the alimony so decided will be less than if the divorce is granted in favour of the wife and mentioning that husband was the erring party.
 
B. 498a wife will be set free while husband will be left with 498a

Looking life from the view point of 498a is fatal. One should look for his own fulfilling life and not keeping someone else in ditch. As long as wife is in marriage, so are you. You also can not get remarried. And if you think of extra-maritals for your own needs, please bear that the odds are stacked against you even there. False Rape cases are the next 498a and it is not uncommon for women to accuse men of bigamy etc.

And when a man gets divorce proving that the wife is the erring party, is not that admissible evidence in 498a case. That actually strengthens your defences in 498a and not weakens it.
 
C. Divorce Cases run for years. And Men does not get divorce in India

Though, I shall concede that there is 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 themselves delaying their cases on one ground or another. But waiting will not resolve this problem. If say, it takes 3 years to get divorce case decide. 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 I hear in Haryana now divorce cases are being decided in 18-24 months at max. So as the Justice delivery mechanism for other things improve, it shall improve for family cases too.

Time is the essence. The words of Napoleon rings in my ear often. “Space we can recover; lost time never.” Each day of your youth that you spend waiting for something to get over, one day wasted without living fully.
 
D. Cruelty and Adultery is impossible to prove/ Men don’t get divorce in India

There is nothing further than the truth. Cruelty and Adultery can be proved by the same kind of evidences which are used to prove dowry harassment. Moreover one has to understand that in civil cases the proof required is that of 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 divorce.

I had a very wise Maths teacher. He taught us that ZERO is not a value rather its a concept. ZERO is just absence of anything. Zilch. Nothing. And how can we achieve nothing? There are two other concept in economics, which very few people understand, One of them is called Opportunity Cost – The loss of other alternatives when one alternative is chosen. One constantly spend money in litigation, maintenance, child support, loss of earnings when one goes to attend mundane court dates, cost of travel, missed opportunities of pleasure, business or work. The other concept is Cost Benefit Analysis, which is a systematic approach to understand the benefits accruing out of various alternatives and then choosing which is best for given set of benefits.

So when one has to look 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 wife/ children will get any maintenance. Because in certain cases, it is not possible to avoid interim maintenance atleast.
 
F. Tire them Out

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

Also, in this case, you are letting the other person have the control. They can also tire you out. And when it comes to testing someone else patience, you don’t know the limits.
 
G. Wait for Acquittal in 498a/ allied offences, after all conviction rate is just 2% for 498a

Yes, the conviction rate is less than 2% of all the cases of 498a filed. But, and a big but, most of the cases are settled in-between. So we just cannot take the conviction rates purely on the number of cases filed to case where conviction occurs. In cases where the trial has concluded, 498a has a healthy conviction rate of over 25% at trial court level.

Further, have you seen any decision of husband acquitted of 498a. Most of the time the order reads, Acquitted because prosecution could not prove the case. The said just because you are acquitted is no ground for divorce. Only a false 498a is a ground for divorce as it comes under cruelty. Also, the trial of divorce will still take its own sweet time which was one of the reasons you did not file for divorce in the first stage.

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

 

If you have any query related to gender biased laws join SahodarWhatsapp Groups by sending Whatsapp message “Subscribe” to Sahodar Trust No. 9811850498

8 Comments

  1. MRA Vishal January 8, 2017 Reply

    Thanks Shonee Sir. You always published well studied articles for men.

    • Site Admin April 11, 2017 Reply

      Thanks Vishal for your kind comments

  2. Sanjeev January 7, 2017 Reply

    I filed divorce here in Melbourne after a year of not living together. I also submitted the paperwork to the concerned court in india along with the evidence that papers were served. It’s been nearly 6 years since all this stared. The charge sheet was filed for 406 against my dad. Nothing filed against me. No one can answer if I am still legally divorced in india as some people question the validity of an Australian divorce.
    I also had an loc against me and I was arrested in delhi airport when I arrived however I got that dropped when I proved that there was no charge sheet against me. Costed me 60000 rupees though.
    The long battle is continuing with my 69 years old father traveling 800 kms every couple of months to attend the hearing from Punjab to Rajasthan.
    The dilemma about various myths is still continuing as the law makers tweek laws as they go along. No one seems to know anything. The advocates are the real beneficiaries as they get paid regularly…..

    • Site Admin February 21, 2017 Reply

      I understand Sanjeev how hard it must be for your father, you and your dear ones. I am not certain what you wanted to ask, however I guess one of the things you wanted to know was the validity of Australian Divorce Decree in India. I suggest you can read about that at http://www.shoneekapoor.com/validity-foreign-decree-divorce-india/

      However, for more specific advise, suggest you to set up a skype appointment with Mr. Kapoor by sending a mail at info@shoneekapoor.com

  3. Satyam Khanna January 7, 2017 Reply

    Thanks for making a good note on Myths. Very informative and tricky explanation of every point which usually raised in the husband’s mind and where common men get stuck due to lack of confidence and knowledge of this industry.

    • Site Admin February 21, 2017 Reply

      Thanks for your kind comment.

  4. Vineet Bharti January 7, 2017 Reply

    Agree with many points. Overall a good article

    1. Filing RCR is a mistake as you give away your defenses. Not everybody can become Gandhi.
    2. Women have expiry date for marriage, more if there is a child so fighting with u is the best option they have.
    3. Adultery requires circumstantial evidence which is different from other cases hence can be proved.
    4.many people focus on 498A, DV while neglecting interim maintenance. Invest your energies there. If maintenance is denied ur wife cannot fight against u with ur own money and her opportunity cost increases.

  5. dr pawan rajyan January 6, 2017 Reply

    Nice article

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