Breaking up: How to get a clean DIVORCE

In an exclusive excerpt from Breaking up: Your step-by-step Guide to Getting Divorced, lawyers-turned-authors Mrunalini Deshmukh and Fazaa Shroff Garg explain the sticky process.

How does one file for a divorce in India? What are the grounds on which one can do so? What about the custody of the children? And the alimony? How much does it cost to break a marriage that probably burnt a huge hole in your pocket in the first place?

The answers to these sticky questions are never simple. Apart from the emotional turmoil that comes as a package deal with a divorce, the practicalities surrounding it never make it easy to break up.

In their new book, Breaking up: Your step-by-step Guide to Getting Divorced, lawyers-turned-authors Mrunalini Deshmukh and Fazaa Shroff Garg tell you everything you wanted to know about calling it quits.

We bring you an exclusive excerpt from the book from the chapter Grounds for Divorce

The three most common grounds under which our clients file for divorce are adultery, cruelty and mutual consent. Although there have been cases under desertion, diseases and mental disorders and conversion to another religion, these have been statistically few and far between. Here, we focus on one of the most common grounds under which divorce is filed -- adultery. Cheating, infidelity and adultery are used interchangeably and are synonymous with one another.

One of the main reasons why most marriages are failing today is the increasing incidence of infidelity and adultery. Infidelity may be just emotional but adultery means sexual infidelity. The big question here is: What makes fidelity so difficult and why is adultery so common?

The reasons behind adultery are varied and each more difficult to understand than the next. However, there are certain trends that arise out of the gamut of adulterous marriages that we have handled. Some spouses have it hardwired into their systems to be unfaithful; others develop feelings for someone else because of ongoing harassment or boredom within their marriage. For some it is the result of years of feeling unhappy and/or being ill-treated or taken for granted by their spouses. For others it is an addiction or compulsion to indulge in sexual acts with strangers, prostitutes and escorts, often when they travel out of town or the country on work-related issues.

Infidelity and adultery isn't a new phenomenon; it has been a reality in marriage and relationships for ages. The difference is that today some people are unwilling to turn a blind eye and allow matters to carry on as before; they want to take charge of their lives and change their situation. They are prepared to face the fact that one or both partners are in an adulterous relationship and are willing to deal with it. So, most couples try to work things out, and only when this proves unsuccessful do they decide to get a divorce. But it isn't as simple as it sounds. And if you are on either side of the adulterous relationship, you understand the complexity involved here. Infidelity and adultery are difficult to accept and process on both the emotional and legal levels.

When the Husband is adulterous

You can take action against your husband if he is in an adulterous relationship with another woman, referred to in legal parlance as the paramour. You can file police complaints against your husband and his paramour and charge him with adultery in the divorce petition. You will have to make the paramour a party to the divorce proceedings, who will then be known as the co-respondent.

When the wife is adulterous

You can take action against your wife if she is in an adulterous relationship with another man. The man your wife is having an affair with is referred to as the paramour. You can file police complaints against your wife and her paramour and charge her with adultery in the divorce petition. You will have to make the paramour a party to the divorce proceedings and he will be known as the co-respondent. However, the similarities end here. You have the right to take criminal action against your wife's paramour by filing criminal proceedings against him under Sections 499 and 497 of the Indian Penal Code, 1860 (IPC). A wife does not have this right.

Section 499 of the IPC

Section 499 talks about enticing, taking away or detaining with criminal intent a married woman. The accused paramour can be fined and/or be punished with imprisonment for a term which may extend for up to two years. It is a remedy that enables the husband of a married woman to take action against his wife's paramour. But this section in no way aids a married woman from taking action against her husband's paramour.

The essential components of this section are:

1. Person takes or entices any married woman
2. Person conceals or detains any woman
3. Woman who is enticed or detained is the wife of another man and the offender knows or has reason to believe that she is the wife of another man
4. The taking or the enticing is from the woman's husband or from any person having care on behalf of the woman
5. Intention is that the woman may have illicit intercourse with any person other than her husband

Section 497 of the IPC (Adultery)

1. This section deals specifically with adultery and covers the following aspects:
2. Man has sexual intercourse with a woman.
3. Woman is the wife of another man.
4. Man having sexual intercourse knows or has reason to believe the woman to be the wife of another.
5. The husband of the woman has not consented or connived with the man.
6. The act does not amount to the offence of rape.

Regardless of how long or short the duration of your spouse's infidelity, you can seek a divorce on the basis of a single act of adultery. The only stumbling block to obtaining this divorce is proving the act of adultery because most such acts are clandestine in nature, and ordinarily no spouse is going to enter a court of law and admit to having an affair.

It is of paramount importance to have some cogent evidence, either photographic and/or videotaped, eyewitnesses who can be called to court at the cross-examination stage, emails/text messages/other documentation exchanged between your spouse and the paramour. All these factors are either individually or cumulatively considered by the courts in deciding adultery in matrimonial (civil) cases. In civil cases the parameter used to judge these cases is what is known as 'preponderance of probability'.

We have provided the answers to these often asked questions keeping in mind that your sole intention is to divorce your spouse. If that is not the case, the immediate response to all of the below would be individual and/or couple's therapy. The marriage counsellor -- and not the divorce lawyer -- should be your first choice!

What constitutes adultery or infidelity?

In law, adultery or infidelity necessarily involves sexual intercourse of a spouse with a person of an opposite sex who is not his or her spouse during the pendency of marriage.

How do I know if my spouse is cheating on me?

You can stop being paranoid and enjoy your marriage. If it is not apparent in your spouse's behaviour, it is probably a figment of your imagination. It is pointless to create hell for yourself and your partner by being suspicious and accusatory. Incidentally, that kind of behaviour amounts to mental cruelty and your spouse can file a divorce petition against you based on your constant allegations. But you may, with his/her consent, check his/her mobile phone and casually inquire about his/her whereabouts to see if his/her alibis are genuine. If you still have a gut feeling, you can hire a PI to follow your spouse and report the findings to you.

My spouse is in love with and emotionally involved with someone else, but they haven't had sexual intercourse. Does it constitute adultery?

No, it will not qualify as adultery according to the law; however, it does amount to mental cruelty as it can best be termed emotional infidelity. We will discuss cruelty as a ground for divorce in detail in the next section.

How do I gather evidence against my spouse if he/she is cheating on me?

If it is a divorce you seek and if your spouse is also toying with the idea, then you may opt for a mutual consent divorce. If you have confronted your spouse and he/she is denying the affair and/or if only you are thinking of divorce and not your spouse then you'll have to gather proof. You can do this by hiring a PI (personal investigator) and/or detective to follow your spouse around. Remember, you need photographic and/or videotaped evidence. Other evidence includes phone calls, emails, letters, SMSes, and so on. Once you have your evidence, you still have the option of confronting your spouse about it if you are looking to reconcile. Failing which, you can file for divorce under adultery.

If my spouse was caught cheating on me and I have filed for divorce on the grounds of adultery, do I have to pay alimony?

Your spouse's infidelity does not immediately nullify his/her right towards alimony. Right to maintenance can be denied or declined by the court only if adultery is proved in the final orders. In the interim stage, till the charges of adultery are proved, your spouse may be granted maintenance.

If I am seeking divorce from my spouse on the grounds of adultery, can I prove he/she is an unfit parent and get sole custody?

Yes. If it is in the best interests of the child to be with you, the courts will grant you the custody. However, the rights of visitation to the other spouse will be granted.

During the divorce proceedings on the grounds that my spouse committed adultery, when can I get into a relationship with someone so it is not considered adultery?

Ideally, not until you have your divorce decree in your hand. However, people do find themselves in a relationship while their divorce petitions are pending in court. If it is a mutual consent petition you can get married immediately after your order is passed, but if it is a contested petition you must wait for a period of ninety days to get remarried so as to allow the aggrieved spouse to appeal against the order for the dissolution of marriage.

If by the ninety-first day you have not received summons from a court of law, you may marry again.

What do I do if my spouse cheated on me, I forgave him/her, but he/she is cheating again?

If you forgave your partner the first time, it amounts to condoning his/her acts of adultery and mental cruelty. If it happens again you can file a petition based on the new incidents. While talking to your lawyer during your consultation, make sure you mention all the possible incidents over the years to ensure a chronologically sound petition.

What do I do if my spouse is a sex addict?

Ideally, you should first consider treatment and rehabilitation. But if it is divorce you seek, try to work out the terms for divorce mutually, else file your divorce petition under mental cruelty.

What do I do if my spouse visits sex workers?

Try to work out the terms for divorce mutually. If that is not possible, file your divorce petition under mental cruelty and adultery.

What do I do if my spouse watches a lot of pornography?

If it is divorce you seek, try to work out the terms mutually. If your spouse does not consent, file your divorce petition under mental cruelty.

Legally, what can I do if my wife is in an adulterous relationship with another man?

You can exercise your rights in the matrimonial laws, that is, file for divorce or judicial separation if you so desire. You must file for it under adultery and/or mental cruelty and also name the man your wife is having an affair with as a co-respondent in the petition.

You can also file criminal proceedings against the man under IPC Section 497 for adultery and under Section 499 for enticing a married woman. In both these charges against the adulterer, in this case your wife, she is merely an abettor and not the accused.

However, the proof of adultery in a criminal matter is tough and has to be proved 'beyond reasonable doubt'.

On what grounds do I file for divorce if my wife is cheating on me with a woman?

If you want a divorce then you must file for it under adultery and/or mental cruelty and also name the woman as a co-respondent in the petition. Although there are no grounds for divorce under bisexuality or homosexuality, it still constitutes a fidelity issue, hence you can file under adultery.

Legally, what can I do if my husband is in an adulterous relationship with another woman?

Your rights in law are only found in matrimonial laws. In a petition for divorce on the grounds of adultery you have to make the other woman a party to the proceedings.

You could do the following: a) file proceedings under the Domestic Violence Act, 2005 for monetary compensation on the grounds of emotional violence; b) choose to stay separate from your husband with the children (if any) and claim maintenance for yourself and the children; and c) file for divorce or judicial separation and claim the other ancillary rights. You can also file a police complaint, bringing all the facts on record, and request the police take appropriate action.

On what grounds do I file for divorce if my husband is cheating on me with a man?

The current law on adultery in the IPC only talks of adultery in relation to a person of the opposite sex. However, this can be a ground for divorce for a wife under cruelty.

This gets a bit more complicated as homosexuality, while still perceived as a criminal offence in India as per the IPC, in some countries is accepted socially and legally.

The IPC criminalizes homosexuality under Section 377 as an unnatural offence. It states: 'Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment for a period which may extend to ten years, and shall also be liable to fine.'

It is considered a cognizable and non-bailable offence.

There has been much discussion over the decriminalizing of homosexuality insofar as consenting adults are concerned. Sectioon 377 is considered to be against Article 14 of the Constitution of India, which states that every citizen has equal opportunity of life and is equal before law.

A 2009 Delhi High Court judgement takes a more reasonable approach to homosexuality if it is between consenting adults but still frowns upon non-consensual acts of homosexuality. However, there has been no amendment to the law as yet, so the provision mentioned still holds true.

Excerpted with permissions from Penguin Books India from the book Breaking Up: Your Guide to Getting Divorced by Mrunalini Deshmukh, Fazaa Shroff-Garg . Shobhaa De Books/Rs 250.