The agony of getting a divorce without mutual consent in India
But for a few details, it is a common tale. She is 33 and works as a business consultant in Mumbai. Her first meeting with the man she would eventually marry was in 2006. It was a meeting arranged by her parents. She was taken in by his charm and the way his parents embraced her. She married him six months later and moved to Pune. The problems began soon after. An architect, he would travel on work for months together, and while he was away, his father would hit her and his mother would berate her. The husband dismissed all these as petty issues. Meanwhile, he himself was emerging as a problem. “He would say that his money is his,” she says, “but my money had to be spent on maintenance of the home.” She remembers her father-in-law asking for a car on her husband’s birthday. “New age dowry,” she says. Despite all this, she says, she actually tried to make the marriage work. But, in 2009, her father-in-law beat her up and threw her out of the house. She went back to her parents and filed a case for divorce. It was the beginning of another ordeal.
Her husband denied that there was any problem between them. He swore he loved her and wanted her back. Each time she went to court, she was asked a trail of questions by the husband’s lawyer designed to prove that he was a good husband. Did they ever go on a vacation? Did he allow her to wear whatever she wanted? To counter this, her lawyers asked questions that tried to show how her husband and his family had inflicted mental and physical cruelty on her. Her husband denied that he had any knowledge of all that she claimed was happening to her in his house.
In 2011, several counselling sessions and court dates later, he filed criminal charges against her, alleging that she stole jewellery from his house when she left. When the police shut those cases on lack of evidence, he took them to a civil court. “It had now become about troubling me as much as he could,” she says, “I had to hire a criminal lawyer.” As a counter-offensive, she filed an application for alimony and maintenance. For this, she had to hire yet another lawyer, but it worked. The court granted her Rs 8,000 per month as maintenance. Her husband was also asked to compensate her for the expenses she had incurred on lawyers over a period of three years. “That’s when he buckled. I offered him a deal: don’t pay me anything, just give me my freedom.”
Her divorce was finally approved a few months ago, but she still has to get the documents that declare her divorced. “It’s a long process because you have to prove so much, and you don’t have the evidence to prove things like being beaten up three years earlier. The judges are fair and sharp, so they get it. But they are so overworked that the hearing dates are a few months apart and there is just too much paperwork. By the end of it, you have to strike deals. There is no other way. I am drained after the [experience] and have lost so much of my youth.”
Manjusha Khandekar (1), her lawyer, says that the law in India is devised in such a way that nobody gets away by citing flimsy reasons for divorce. “The system does take time, but that is also because there are so many divorces being filed. Also, mutual consent divorces are much fewer—because one spouse always has an ego problem. They don’t realise they need to let go. In India, proving your reasons is very important. Sometimes, you just need to do what you can to get a divorce. That’s why we adopted the alimony strategy.”
The biggest obstacle to getting a divorce in India is the need to establish that you deserve one, says Mrunalini Deshmukh, a lawyer who has co-authored a book on the subject with fellow lawyer Fazaa Shroff-Garg: Breaking Up: Your Step-by-step Guide to Getting Divorced. This book details different grounds on which you may be granted a divorce. It also offers guidance on alimony matters, maintenance (for both men and women) and all the laws you need to know if you are thinking of putting an end to your marriage.
There are two types of divorce: ‘contested’ and ‘by mutual consent’. The latter is easily dealt with. The husband and wife have to file separate petitions, undergo a set of mandatory counselling sessions, and then get another court date after a six-month cooling off period. If they still want a divorce on the second hearing, the judge usually passes a judgment to that effect. But cases of mutual consent are rare: only a fifth of all cases, in Deshmukh’s estimate.
Complications arise when one spouse resists a divorce. This makes it a prolonged process. If you want a divorce, you must devise a strategy to get one, file a petition based on it (tactically modifying it if need be), serve it to your spouse, go for a first date in court (where you will be sent for counselling), attend a second date to present the merits of your case, and then hope to get past this sticky stage to discuss ‘issues of consideration’ and measures of interim relief like maintenance, before you get a final decree nullifying your marriage.
Deshmukh and Shroff-Garg wrote this book in response to all the ignorance they encountered on matters of divorce. In India, Deshmukh says, you need to prove your case for a divorce thoroughly to get a judge to grant you one. “You can’t just say, ‘We are not getting along’. That happens in the US and UK, where if you have been apart for enough time, you will surely get a divorce. But in India, except in cases of divorce by mutual consent, you can’t say ‘I want a divorce because we don’t get along’. You have to prove it.” Since this is a subjective call, and can be contested by the spouse, a divorce on such grounds is rarely ever granted in India. The point of taking the testimony of contestants so seriously is to safeguard their dignity and interests, since most of India’s contested cases are of wives being left by their husbands. At lower socio-economic levels, desertion is a serious issue of women’s rights. “They need strict laws for divorce or they will get nothing,” says Deshmukh.
That also means that the well-off must wait for years for a divorce to come through. Some of Deshmukh’s clients have waited for over a decade. In the book, the two lawyers cite the example of a couple who were back together by the time they got their divorce. The authors do not blame the judges, but the system. “You first have to file an interim application, then formal ones, then work out details that both agree with,” says Deshmukh, “That takes time.”
Sometimes lawyers are hired just to stall proceedinbgs and create delays. The courts are usually understaffed and overburdened. One court typically handles around 50-60 cases a day. Deshmukh herself gets five-six new cases every day.
The book answers questions like ‘How do I prove my spouse is an unfit parent?’, ‘What do I do if my spouse watches a lot of pornography?’ and ‘What if my spouse is a sex addict?’ It also has some extraordinary case studies. The case of ‘Eijaz and Mala’, for instance. Eijaz demanded dowry. But when she filed for divorce citing ‘mental cruelty’, he contested it and said he wanted both of them to be together. Deshmukh initiated a settlement and Eijaz asked for crores of rupees, but finally haggled over the sum and gave Mala a divorce. There is also the case of ‘Rohan and Maya’, in which it was the husband at the receiving end. Maya, says the book, would curse and batter her husband. On Deshmukh’s advice, Rohan videotaped an incident that showed him being shouted at and slapped by his wife. A medical test showed that she was suffering from schizophrenia, and he was granted a divorce as well as custody of their children.
In many cases, it is not easy to determine one’s limits of tolerance. Thirty-year-old Avinash Patil, who works in the BPO sector, says that his wife was violent and wishes he had recorded it as evidence but did not because he “loved her and never wanted the marriage to end”. Now, he faces several criminal charges that his wife has slapped on him, all of them related to domestic violence. Patil says that he finds it hard to believe their marriage has come to this. Theirs was an arranged marriage and he says he did all he could to make it work. On their two-week honeymoon to Kerala and Goa, her behaviour struck him as weird—she would often complain of headaches and say she wasn’t well. This went on for the entire trip, and once they got back home, she complained that he didn’t look after her. She would use abusive words against his family, he says, and he discovered that she had a history of taking anti-depressants. Then came times when she started beating him up. When he went to the police, they refused to believe him. “Last year on Diwali things seemed better,” he says, “We did puja, bought new stuff and tried to be normal. But it was not to be.” She went to his parents’ house, and, according to him, beat herself up and filed a case against his entire family. They were put behind bars. “I will file a divorce case soon,” Patil says, “She has not turned up for counselling. I cannot keep waiting for her to take the first step [towards a split]. Maybe I will use a private investigator now to prove my claims.”
Lawyer and author Shroff-Garg says that the use of private investigators to bolster evidence in divorce cases is pretty common. And it is not as invasive as people often imagine; detectives are hired for plenty of reasons other than proving an extramartial affair. “It’s not as if they are putting cameras in people’s bathrooms,” she says. “Sometimes people ask for maintenance and say they are unemployed. But that’s untrue. They may be working and lying about it.”
Prashant Palekar, who runs Magnum Investigations, has been a detective for 15 years. He says that divorce cases are every investigator’s mainstay. He gets a case every second day. “If a woman is asking for alimony saying she doesn’t have a job, we get her salary slips. We have people everywhere. We can get a contact inside her office. Or we pose as loan advisors and say, ‘We will get you a loan…’.”
Divorce espionage is not entirely devoid of cinematic scenes, though. Palekar says he has had to follow targets to hotels and other love nests.
In common perception, Indian divorce laws favour women. Several lawyers flatly deny this, but Deshmukh and Shroff-Garg say that it is true to some extent. “In custody battles, sometimes the father is the better parent. But Indian courts are designed to automatically rule in favour of the mother. That should be changed. Fathers should not be begging for visitation rights,” says Deshmukh. “And even men can seek maintenance for the period of the divorce case,” says Shroff-Garg, “Why shouldn’t they?”
More often than not, says Shroff-Garg, divorce cases end in a wrangle over money. “There are never black-and-white cases. It’s all grey. In the end, it’s about buying your freedom. Either you pay money or take money. It’s that simple.”
(1) – A correction was made to this article after it was published
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