Why is getting married easier but staying together is difficult? Why is getting divorce so difficult in India? When a person gets married, the plans and conversations surround the ‘forever’ perspective. However, as time goes by, and things do not work out, it takes effort from both the spouses to fix the issues. When that also does not succeed due to any reason, divorce seems to be the only option. However, getting divorce is not a cake walk at all. The complications of divorce have been discussed below.
Why is getting divorce so difficult in India?
Legally speaking about divorce, there are two kinds – mutual and contested divorce. For mutual consent divorce, the husband and wife should both agree to separation and dissolve the marriage. On the other hand, if one of them is not ready to end the marriage while the other insists the same, it turns out to be a one-sided divorce. While for mutual divorce, Courts or Law only aims at giving time to the couples to rethink about their decision and consider reuniting with each other before granting divorce, contested divorce is just another ploy. It requires the spouse seeking divorce to prove one of the major reasons stated in the laws, convincing the Courts on why the marriage cannot subsist. For example, a Hindu man whose wife has had an extramarital affair and was living in adultery with another man, has to prove it as the grounds for divorce under Hindu Marriage Act. Since acts like sexual intercourse take place in privacy, and getting proof of the same may not be as easy, it becomes a task. Proving the same in the Court becomes the biggest challenge for the spouse who has been cheated upon. So is the case with other divorce grounds.
Difficulty in Divorce for Men vs Women
Since the husband and wife play different roles in a family, and the laws also treat them differently, both face different challenges or difficulties. So here, we are dealing with the answer to why getting divorce is so difficult in India, from a gender lens.
Women and Divorce
When it comes to women, they are said to be more emotional and sensitive. While getting a divorce, there are numerous uncertainties for her – like financial incapacity in some cases, and lonely future in others. For couples with kids, women are more likely to seek and get their custody. But, raising a child single-handedly can be a task. These are the social aspects which one has to take care of.
However, there is another facet in case of contested divorce. This can be understood with an example. A couple of weeks ago, a distant relative called me at midnight. This was the first time she called me, in almost 10 years, although we were in contact and used to chat on social media once in a blue moon. What she discussed was her difficult marriage, and her need to understand the divorce procedure. It was a love marriage, which started with a lot of dreams of ‘forever’. However, things got unsettling with time. She is a mother of two, the older one being 5 Y/O and the younger one just 10 months old. What she faces is abuse from her husband, physical and mental, which is taking a toll on her as well as her childrens’ health, since they are scared all the time, frequently falling ill. Since she told me that her husband was not ready for a divorce, I explained to her that the other option was contested divorce, wherein, she will have to prove one of the grounds, which was cruelty in this case. On this, she replied that she does not have any proof of things she was suffering from, particularly because getting a divorce was never in plan. As a relative, I understood her footing, but as a lawyer, I knew that without proving the cruelty meted out, she could not get a divorce. While she was not demanding any financial support from her husband, she was also not earning and needed support for her children. However, she sounded resolute in her decision, and forcing such a person into marriage may not be the best option.
Complications of Divorce for Men
Men in marriage are mistaken for the stronger ones while women being the vulnerable and victims in all cases. However, no two persons are the same, not all men are the same, so why don’t we leave this stereotypical gender lens behind while looking at a divorce? The practical reality is that for men, the difficulty in getting divorce in India also accompanies the misuse of IPC Section 498A, legally complicating things for his family as well. In addition, men do not express much, but they also get hurt when their marriage ends.
Taking another example, I have a friend who got married just before COVID hit the world and everything was shut. Hence, he accompanied his newly wedded wife 24*7. While the rest of the family including husband were taking care of the household chores, she would only relax and keep fighting with her husband over trivial topics. No conversation could change her mind to take up some tasks or at least make the home a peaceful space. She would even threaten her husband with false cases once in a while, to get things done as per her whims and fancies. Two years down, she started working – got a part time job, and now she was earning. While the husband hoped that things may get better with this change, the tables turned in the negative direction. She started working full time, earned a decent amount, and started forcing her husband to live separately from the family. 4 years down, the husband wants a divorce and the wife, who initially proposed a mutual divorce, was in complete denial for separation. So now, the husband is planning for a contested divorce, a bit scared of the package where provisions like IPC Section 498A and domestic violence, dowry, etc. would accompany false allegations. While he is trying to settle things amicably, the wife came up with a hefty amount, so the only option left is a contested divorce. While the husband and his family did not do anything wrong, they are preparing themselves to face the inevitable.
It may be noted that in this contested divorce, the husband will be bearing the litigation cost, paying maintenance to the wife, if ordered by the Court, and also deal with the legal expenses like lawyer fees, etc. If they had a child born from this marriage, child support would have also weighed in upon his pockets. Thus, the difficulty of getting divorce for men is also not easy, but rather more complicated.
Ease the difficulty in Contested Divorce – Suggestion
Here, I am going to share my thoughts from a personal opinion, based on what I have seen so far. As a human, I believe in marriage, and I think that it is the most beautiful bond one can have. However, with the current scenario, the journey seems challenging to board. While nurturing a marital relation is a challenge, it is not always the case that things will work out for good. If one spouse does not agree to mutual divorce, it should not be used as a reason to punish the other spouse who is already suffering. I would even bat for pre-nuptial agreements, because those seem to be the need of the hour.
I believe that if a person has approached the Court seeking dissolution of marriage through divorce, Courts should be a bit open minded, listening to the spouse. Protecting marriages is one thing, but contested divorce petitions should not be outrightly rejected for lack of evidence, because even if contested divorce is rejected, can the couple live happily thereafter? What I wish to say is that Courts may not easily allow divorce, but they should not force people to live together when one of them is resolute, because it may bring serious consequences for all the stakeholders in the families.
A Few Doubts Addressed on Why Getting Divorce is so difficult in India
Q- How difficult is contested divorce in India?
A- If it is not a mutual divorce, it is not as easy to get divorce in any country. However, when it comes to India, the concept of ‘sacrament’ and a ‘sacred union’ makes it a bit difficult to get divorce. The idea of Courts is not to grant divorce on one of the grounds of divorce unless things are totally impossible. That’s why contested divorce in India is considered as difficult to get.
Q- What are the complications of contested divorce?
A- As discussed above, one-sided divorce needs compliance with one of the specific grounds when approaching the Courts. So the biggest complication in a contested divorce is that one has to prove the complicated marriage to someone who does not know anything about the married couple, and thinks in his/her own capacity what things might be like, and whether it would be a difficult marriage or not. For example, constant taunts might be bearable by some, but extreme cruelty for someone else. Particularly for the ground of cruelty, it is mostly the many instances that lead a person to seek divorce, but 10 out of hundreds of instances purported before a Judge may sometimes not be enough to convince, and the case may not succeed.
Q- Can court reject contested divorce?
A- Yes, a petition for contested divorce is just like a petition for property claim or application for bail. If the person is not able to prove one of the grounds as per the applicable laws, one-sided divorce may not be allowed, thus rejected.
