Men’s rights in case of separation

Source: Times of India dated 16.03.2020

Riju Mehta says, With men complaining of a legal skew in divorce and maintenance, here’s what they need to know about their rights

Given that women are at the receiving end of most marital and financial problems, it’s no surprise that men in similar situations are often ignored. They not only complain of a legal skew in favour of women when it comes to divorce, maintenance and child custody, but also in dowry-related cases. Their claims could be well-founded considering the low conviction rate of 1.5% and high acquittal rate of 43.1% in crimes under the Dowry Prohibition Act, as per the 2018 National Crime Records Bureau data. Here are the legal rights married men should be aware of.

1 Divorce

The husband has a right to file a petition for divorce with or without mutual consent. For the latter, the grounds remain the same as that for a wife. These include cruelty, desertion, conversion, adultery, disease, mental disorder, renunciation and presumption of death.

To ensure a favourable response by the court, keep a few things in mind before filing for divorce. Ensure a cordial relationship with wife, excluding physical, verbal or sexual abuse. Even if you find it difficult to stay under the same roof, do so to avoid the additional expense of a second house and to collect all documents related to divorce. It is also best not to enter into an extra-marital relationship before the divorce is finalised as it will weaken your case. Have a clean social media record, without any nasty messages, texts, threats or abuse sent to wife in the heat of the moment.

Conduct all financial transactions, sale or purchase before filing for divorce as it will impact the split of physical and financial assets in case the divorce is without mutual consent. If you think the wife may misuse your credit card or empty out a joint bank account, cancel the card and withdraw money before filing the petition.

2 Maintenance

Men’s rights to maintenance can vary under different Acts. Under the Hindu Marriage Act, 1955, both husband and wife can claim maintenance, while only the woman can do so under the Special Marriage Act, 1954. Men can avoid paying maintenance under certain circumstances. If the husband can prove the wife is earning enough to maintain herself, or that he is not earning enough to maintain himself, or that the spouse has remarried, deserted him or committed adultery, the husband does not have to pay maintenance. He may not have to pay interim maintenance either if he can prove that he is unable to earn and maintain himself, or that the wife is earning and can sustain on her own income.

3 Child custody

In a mutual consent divorce, the couple can decide about the child’s custody, which can either be full or joint, and the courts typically agree. In a contested divorce, men have an equal right to the child’s custody, even though earlier the mother was favoured by courts and granted full custody. Of late, the courts have started granting custody to the partner who is better able to look after the child’s needs.