PLAUSIBLE DEFENCES IN MATRIMONIAL LITIGATION
The rights of Men and women are well protected in law in matrimonial cases like Divorce, Alimony, Custody of Child etc., and here, we will discuss the plausible defences in matrimonial litigation and things to be considered by men before filing Divorce generally as per law experts.
Marriage is a commitment that binds two individuals for their lifetime including the whole of their family. According to the beliefs of the older generation marriage was considered to be sacred, which tied the people beyond their single life and was meant to be carried on for one’s entire life. Due to the changing needs of people, Hindu Marriage Act was introduced in 1955 that gave an opportunity to the people to reconsider the aspects and impact of their married life. The idea of divorce exists due to the different perspective of the people and the friction that occurs due to their beliefs. The concept of divorce is not clearly stated anywhere but it can be considered as legal dissolution of a relation which was established due to marriage. In other words, it can be defined as a break between two individuals from their marriage and the end of other interrelations between them.
Although the stereotypical mindset of our country never believed in getting divorce as the ultimate solution to resolve family problems. People considered unsuccessful marriages to be a disgrace for society. There are many reasons behind unsuccessful marriage; generally includes miscommunication between the two people, having an extra-marital affair, conflicts between families, family demands, physical abuse, mental abuse, harassment, marital rape, physical compatibility and so on.
There are various grounds that are been addressed under section 13 of the Hindu Marriage Act and are considered to be valid for both the men and women to file a divorce if such circumstances are made:
- Adultery:It states that after the commencement of marriage, if a married person is having a sexual intercourse with any person who is not his/her spouse is said to have committed adultery.
- Venereal disease: Also referred as sexually transmitted disease, can be considered as a ground of divorce. If one of the partner is having such experience then his/her spouse can file a divorce.
- Conversion:If one of the spouses wants to convert into another religion then the essence of the Hindu marriage gets destroyed and the marriage gets dissolved.
- Insanity:As the term itself states insane means not in a clear state of mind. Thus, if a person is not able to differentiate between what’s wrong and what’s right or is unable to give consent/ approval is not considered to be competent enough to tie matrimonial bonds. There are various provisions mentioned for the same cause and are considered to be a very important ground of divorce.
- Leprosy:It is a form of chronic skin disease that affects the skin, fringes nerves, mucosal surfaces and the eyes and it is incurable and thus can be held as a ground for divorce.
- Presumption of death:If an individual hasn’t been seen or heard for seven years from those who were his close acquaintance, then he/she is considered to be dead. If the other spouse wishes to remarry then he/she needs to file a divorce on the basis of presumption of death.
- Renunciation:If a person is willing to give up on all the relations that he/she has made including his/her marriage i.e., when he/she is not willing to take the responsibility of marriage, ties, relationship and family, it can be considered as a ground of divorce.
- Desertion:it is stated as an act for abandoning a person for two years, even though he/she stays in touch over phone calls/ emails but under any circumstances if he/she ceases to live with their spouse without any reasonable cause or dismisses all the rights, obligations and duties ted with respect to marital bond then the motive behind marriage gets clear and is therefore held as a valid ground for divorce.
- Cruelty:It is considered to be the most unbearable ground of divorce. Cruelty means torturing or having a brutal behavior against your partner. It is considered to be a criminal offence against both men and women.
Mentioning the rights of men in a divorce, the first and the foremost right is to file for a divorce, whether mutual or not. For the clarification these grounds are stated for men as well as the women.
Before filing a divorce, a man needs to ensure that there was a cordial relationship with his wife, no physical relationship was made by him in recent times, neither any sexual abuse, harassment was done by him. It is advisable by our lawyers that a man needs to be calm and in a sound state of mind where he can decide that is he requires a divorce or not. A man needs to keep in mind that he is questionable in the court where his social media background, his behavior, his reputation, everything would be crosschecked. A man is expected to have zero criminal records in order to get a strong hold of the case. Messages sent to his wife can be checked thoroughly.
Talking about the custody of child, it is generally granted to the mother but a man can plea before the court for a joint custody of child. Joint custody results custody of child which is granted to both the parents, but only one is able to get a physical custody of child and he/she is referred as child’s prime caretaker. There have been many cases where the father was given the child’s custody, the main motive behind granting custody is to ensure that the child is in safe hands and will grow into a better person.
The husbands can defend himself against the demand for alimony/maintenance as well if his wife has left him deserted, if the wife has performed cruelty, if the wife gets married to someone after dissolution of marriage, if she is earning more than her husband. The husband is not supposed to pay any alimony if his wife is capable of maintaining herself. There are cases where husbands have claimed alimony from their wives.
Often false and frivolous criminal complaints are filed by the wife against her in laws and the entire family. Taking into consideration this trend and to prevent harassment of innocent people the Hon’ble Supreme Court in the matter of Arnesh Kumar versus State of Bihar has propounded the need for counselling between the parties when a complaint is received at the Crimes Against Women Cell ( CAW Cell). The complaint filed by an aggrieved wife will be converted into a First Information Report only after a preliminary investigation into the allegations.