WHAT ARE THE MEN'S RIGHTS FOR DIVORCE IN INDIA?

In India, men do have divorce rights just like women. However, it is arguable to say that Indian Divorce laws are more favorable to women than men. A wife has more rights and protection under the divorce laws of our Country. For instance, under the Special Marriage Act 1954, only the wife is legally entitled to claim Alimony and maintenance.

However, Men's rights scored a significant triumph in India recently when the Apex Court identified them as the victims in domestic violence cases. We also have Indian divorce laws which ensure that men can file divorce on valid grounds, seek custody of their children, and refuse to pay Alimony, such as the Hindu Marriage Act, 1955. 

Read more: GROUNDS OF DIVORCE IN INDIA

Even in today's society, many men are oblivious of such rights and responsibilities. And hence, below are the legal rights that a husband should be conscious of:

• RIGHT TO SEEK DIVORCE

A husband can file a petition for divorce with or without mutual consent. Some of the valid grounds under which a man can file a petition for divorce other than mutual divorce are as follows: 

1. Adultery: After the solemnization of the marriage, if a wife has an extra-marital affair or has voluntary sexual intercourse with any other person, the husband hereby obtains the right to file for divorce. With time and significant cases, Indian courts have stressed that the act of adultery has to be proved beyond a reasonable doubt in order to seek divorce.

2. Cruelty: after the solemnization of the marriage, if the wife treats the husband with Cruelty, he can seek divorce on the ground of Cruelty. Mere annoyance or trivial irritations, quarrels between spouses do not amount to Cruelty. And it does not limit to mental and physical Cruelty; it can be of any nature that makes it difficult for either partner to live with the other partner. 

3. Desertion: Desertion, in simple terms, refers to the act of abandoning a person. If a man wants to seek divorce under the ground of "Desertion," he should prove that his wife has ceased to live with him without any reasonable cause for a continuous period of not less than two years immediately preceding the presentation of the petition. However, it has been held in the case of Jyothi Pai v. P.N. Pratap Kumar Rai, AIR 1987 Kant 24, that the burden to prove desertion lies on the petitioner.

4. Conversion: After solemnization, if a wife ceases to be her religion and converts into another religion that she was not initially a part of, the marriage would stand dissolved.

5. Insanity: A person who is unable to understand the difference between right and wrong or unable to give consent or understand the happening around her cannot be considered competent enough to tie herself within the matrimonial bonds. Insanity includes any mental disorder such as deficient advancement of the brain, psychopathic confusion or incapacity of the brain, or incorporates schizophrenia. However, if a husband seeks a divorce on the ground of unsoundness of mind, he must prove it beyond a reasonable doubt, as held in the case of Ajitrai Shivprasad Mehta V. Bai Vasumati, AIR 1969 Guj 48.

6. Leprosy and Venereal disease: Leprosy is a chronic infectious disease that essentially affects the skin, mucosal surfaces of the upper respiratory tract, the fringe nerves, and the eyes. A husband whose spouse is suffering from an incurable disease of leprosy can sort a decree of divorce under this ground. The onus of proof lies on the petitioner (the husband) to prove that leprosy is virulent and incurable. 

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Venereal disease is also known as a sexually transmitted disease and is a very valid ground for divorce. If a wife is undergoing a severe and incurable disease such as HIV/AIDS, syphilis, and gonorrhea that is transferable, the husband can file a petition for divorce. 

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7. Renunciation: A husband can file a divorce petition if his spouse renounces the world by embracing any belief and enters a holy order. Such a person achieves a state of self-actualization and wants to free herself from all worldly bonds, including from the bond of marriage. And thus, it is considered as a basic ground for divorce. However, this renunciation must be absolute and indisputable.

8. Presumption of death: If a wife is not seen or heard alive for a persistent time of seven years, she is considered to be dead. And thus, another valid ground for divorce.

• CUSTODY OF CHILDREN

In cases of divorce between partners, the custody of the child becomes one of the important considerations. In most cases, the Court grants custody to the mother of the child. However, the Indian courts held that the upbringing and welfare of the child are of utmost importance, and hence, custody will be given to the parent who can bring up the child in a better way. There are certain events where a father can also claim custody of a child by proving any of the reasons listed below;

1. If the mother agrees to relinquish custody of the child;

2. If the mother is not mentally stable;

3. If the child is 13-years-old and wishes to stay with his father;

4. If the mother has a bad reputation, which may affect the child;

5. If the father proves the financial incapacity of the mother, which will have an impact on the kid's upbringing;

6. If the father can prove that the mother had a dark history which may affect the upbringing of the child and shall affect the upbringing of the child;

7. If the mother is a convict.

The grounds mentioned above are not exhaustive and vary from case to case on the basis of facts and circumstances.

Read more: STEPS FOR CUSTODY OF A CHILD UNDER HINDU LAW!

• ALIMONY

Alimony or spousal support is expected by both spouses irrespective of their gender during and after marriage. A husband can both refuse and claim Alimony or maintenance under certain circumstances. 

1. A husband can avoid paying Alimony if he proves his wife is accused of adultery. Thus, proving adultery is no easy task and needs genuine proof.

2. A husband can also avoid paying Alimony if the wife earns significantly more than the husband. However, the Court's discretion is required, and the Court examines the monthly income and property and taxes. 

3. If the husband is physically incapable of earning, he may be exempt from paying Alimony. In such cases, the Court may order the wife to pay Alimony to the husband;

4. If the wife starts living with a new partner. This information may be included in the print of the divorce decree. 

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Author: Papiha Ghoshal