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 it, and should contest tooth and nail if filed by wife. So much so that in the cases of adultery as well, when there are clear-cut proofs, men are advised not to file for divorce and are sometimes recommended to file for Restoration of Conjugal Rights (RCR).
· If husband files divorce he would have to pay more alimony.
· The wife will be set free to remarry and the husband will be left handling the 498a (Dowry Act), etc.
· Divorce cases run for years.
· Cruelty and adultery are near impossible to prove. Courts only treat the word of women as true.
· Add to this a strong sentiment of ZERO settlement.
· One should tire the wife out and be patient till she comes forward for negotiated settlement.
· 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%.
Related reading: How to fight right in divorce
Let’s look at all these myths one by one.
There is no truth in the above statement that men need to pay more alimony if they file 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 the Hindu Marriage Act and corresponding provision in the Special Marriage Act, 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 the husband and mentioning that the 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 the husband was the erring party.
· Wife will be set free while the husband will be left with 498a.
Looking at life from the viewpoint of 498a is fatal. One should look for his own fulfilling life and not keeping someone else tied up. As long as the wife is in the marriage, so are you. You also cannot get remarried. And if you think of extramarital affairs for your own needs, please remember 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 does not weaken it.
· Divorce cases run for years. And men do not get divorce in India.
I will concede that there is an explosion of divorce cases in recent years and there are not enough courts available. Naturally, most of the cases are delayed. The litigants are also to blame. 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 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 2021.
This situation is also improving drastically. For example, I hear in Haryana now divorce cases are being decided in 18-24 months maximum. So as the justice delivery mechanism for other things improves, it will improve for family cases too.
· 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-à-vis strict proof required in criminal cases.
· Men should strive for ZERO Settlement.
Often when a divorce case is fought, people are saddled with a dilemma in mediation. 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 it is 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 at least.
· Tire them out
I have not heard anything more 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 20s or early 30s 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 giving the other person control. They can also tire you out. And when it comes to testing someone else’s patience, you don’t know the limits.
· 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 a husband acquitted of 498a. Most of the time the order reads, “Acquitted because prosecution could not prove the case”. 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 place.
This said, I don’t encourage anyone to file for divorce at the drop of a hat. Filing for divorce has to be a well thought out 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 evidences to secure divorce.
Just like “Men shall not file for divorce”, the blanket statement “File for divorce” can be a costly mistake.