Understanding the divorce industry in India

On Oct 26, 2014, Navodaya times (part of Punjab Kesari group) had published my interview as part of their Purush Shakti feature. 

The headline of the interview was titled as “All is well with the ongoing divorce industry”.  As far as I know, this is the first time a media article has acknowledged the words divorce industry  in an article headline, or probably even in body of the story.

Now question may be asked that what is this animal called divorce industry, and whether it is justifiable to call something unfortunate as divorce as part of any industry?

Is divorce really cool?

Firstly, let me clarify that I don’t believe in the ‘cool thesis’ being put forth these days especially in mainstream western media that divorce can be good or healthy.  The people who put these arguments base it on the following lines:

1. The couple in marriage can drift apart, change interests, lose interest in each other etc etc, and there is no point in them forcing them to be together.  That’s all very good, but it tries to compare marriage institution to a kind of employment contract, which can be changed as situations change between the employer and employed.  Also, it flies in the face of “till death do us part” and similar maxims of marriage in various cultures, so it is quite hypocritical to say one thing at the start and do something else after some passage of time.
2. Also, it is being said that for children it is better to have a separated/divorced parents than a home which is conflict ridden.  There is not much statistical support for such theories, and moreover these theories can work to a limited extent only in developed countries with large welfare states.
3. Also with regards to growth and future of children, it seems most of these theories have originated in countries which have higher standard of living, and which also have a big daddy welfare state which takes care of single mothers and the children should they not live with the father, or baby daddies.  Also, these states also have mechanisms in place to place fathers in jails for having missed child custody payments, no matter what the adverse circumstances the father is going through.  It is also true that in US there are regulations which give incentives to bureaucrats to maximise the collection of child custody payments, so their incentives are tied to collecting more of child support payments, for which breaking the family is first condition.
4. The concepts of rainbow families, and social fatherhood is being forced down the throat of public in western nations.  The studies and data however points to the fact that children are safest when in same home as biological father.  In other words, no number of children’s uncles, or latest boyfriend(s) of the mother can usually replace the biological father as far as children are concerned.

Is divorce an industry?

Given that there are incentives given to state bureaucracy in US to enforce child support payments, and given that the bar councils of many US states have opposed from time to time implementation of shared parenting laws (which will reduce conflict during divorce), it is clear that both the state officials and divorce lawyer community do not want the money from divorces to go away so easily.

Now some simple facts about the biggest divorce country of the world: US. 

1. Divorce is a $50 billion industry in US, much bigger than the famed Hollywood industry at $32 billion.  
2. An average divorce in US costs $50,000, and with 50% of first marriages and 70% of second marriages ending in divorce there, calling it an industry will not be a exaggeration.

From a recent documentary called Divorce Corp on divorce industry in US:

http://www.imdb.com/title/tt2636456/plotsummary

More money flows through the family courts, and into the hands of courthouse insiders, than in all other court systems in America combined – over $50 billion a year and growing. Through extensive research and interviews with the nation’s top divorce lawyers, mediators, judges, politicians, litigants and journalists, this documentary uncovers how children are torn from their homes, unlicensed custody evaluators extort money, and abusive judges play god with people’s lives while enriching their friends. This explosive documentary reveals the family courts as unregulated, extra-constitutional fiefdoms. Rather than assist victims of domestic crimes, these courts often precipitate them. And rather than help parents and children move on, as they are mandated to do, these courts – and their associates – drag out cases for years, sometimes decades, ultimately resulting in a rash of social ills, including home foreclosure, bankruptcy, suicide and violence. Solutions to the crisis are sought out in countries where divorce is handled in a more holistic manner.

There is another, more personal view of the divorce and family courts in US written by actor Alec Baldwin:

http://www.amazon.com/Promise-Ourselves-Journey-Through-Fatherhood/dp/B002BWQ55E

Divorce Industry in India:chat shaadi, pat 498A or DV

The divorce industry in US seems to be centred on children, both in terms of child support payments, false allegations of domestic violence to get restraining orders on fathers, and so on.  In UK too, anecdotal stories suggest that the courts related to family and children work in an opaque and sometimes secret manner, so that the process and the decisions made are not open to public.  Also, a convenient modus operandi is to bring the father to his knees by withholding whatever little ‘visitation’ time he can get with his children.

In India, the divorce industry ‘blossomed’ after the wave of IT and BPO industries led to large scale creation of higher paid jobs, starting from year 2000 or thereabout.  The divorce scenario in India seems to be very different from Western countries.

Some statistics about possible number of divorces per year in India are in order:

1. About 100,000 IPC 498A cases are filed in India every year.  We can safely assume that all these 100,000 will add to the number of divorces within few years of filing of the case.
2. Every divorce may not be initiated from an IPC 498A case.  85% of divorces in India are initiated by women, 15% by men.  Given news reports of 5,000-8,000 divorces in particular large cities like Mumbai or Bangalore per year, and going by the sequence numbers of MC cases filed in courts, we can estimate the number of divorces to be  about another 30,000-50,000 per year apart from the IPC 498A ones.
3. So the total number of divorces applied per year would be about 130,000-150,000 per year.

How the money flows in Indian divorce industry?

A divorce can take various routes in India.  From the simplest, and rarest where the couple part ways with little or no alimony upon a mutually agreed divorce, we can go all the way to multiple criminal and maintenance related cases filed on husbands.

1. Simplest and cheapest divorces will be where the couple part ways agreeing mutually to a divorce. There is some legal fees involved but not much compared to contested cases.
2. After that we come to cases where wife would file a maintenance case like CrPC 125, or under DV Act on husband first.  Both parties will use lawyers to guide them through the process.
3. In some cases, either husband files divorce first, or files it after wife files a DV or 498A case.
4. IPC 498A was a multi-thousand crore business until recently due to application of anticipatory and regular bails for the 1 lakh cases filed every year.  With SC guidelines on following CrPC 41 and 41A, the number of arrests seem to have come down a lot, though we don’t know exactly how much.
5. The most common scenario is when a divorce is not filed by any spouse, but due to pressure of maintenance and possibly criminal cases on husbands, and cases ongoing for years altogether, they are forced to agree to a supposedly mutual divorce, and pay a large lumpsum amount to wife as the price for having done the crime of marriage.

Lest some people think that Indian lawyers are better than US lawyers, the legal community had opposed amendments to CrPC (Code of Criminal Procedure) in 2010, sections 41 and 41A, which would make arrests in IPC 498A difficult.  But they had the honesty to say that these amendments will reduce number of bail applications, and threaten their livelihood.

As I have outlined in other articles under important posts, the typical divorce cases in India are filed in a pre-mediated way and the planning had been done even before marriage.  The targets are the middle-class folks in professional jobs which provide high incomes in beginning of career itself.  The pressure put on them is to either pay a huge lumpsum amount, or run around in courts for many years thereby damaging a promising career in early years itself.

How lawyers add fuel to the divorce industry?

1. When there is a dispute in a business contract, or about a property, a lawyer’s advice and filing of legal case will help the supposedly truthful party to get justice from courts.  There are costs involved in filing and fighting a legal case, but society agrees that this cost is a reasonable one to have the rule of law in society.
2. But it is highly doubtful how lawyers will add value by taking up matrimonial cases.  Since it is difficult to get divorce in Indian unless one proves spouse to be cruel, lawyers advise clients to add false allegations and embellish upon allegations, knowing fully well that many of these allegations don’t have an iota of proof, but they hope the client will feel emboldened by the prospects which result from filing the case.  So in a way, the client is led up the garden path.  It is true even for legal advice given to men, who are advised by advocates to file an RCR or send a legal notice to wife.  The men don’t know it at the time, but any legal action taken results in massive legal action from wife’s party which the husband is never prepared for beforehand.
3. Lawyers also gain by taking cases from women and drafting complaints by adding terrifying allegations, and also by adding husband’s relatives into IPC 498A or DV case.  It has been observed even by SC that some complaints in 498A FIR are written in manner of a legal draft, so they couldn’t possibly have been written by the complainant wife herself.  On online forums, lawyers have been seen advising women to file legal cases whether to do with a marital problem or a pre-marital problem.  A woman who wanted her husband to come back to her, was being advised to file 498A case on husband so that he learns a lesson!  Another woman who had a failed love affair, was being told to go ahead with IPC 376 rape case on the man.  So whether it is before or after marriage, if you go to a lawyer, expect him to suggest some cases to file.  Because at least they will get something out of it!  A clear trend these days is that once IPC 498A arrests became difficult after Jul 2014 SC judgment, FIR under IPC 377 (unnatural sex) are being filed to trap the husband in some IPC section which can lead to his arrest.  Also IPC 376 and IPC 354 are being filed on husband’s father and brother too.
4. Advocates can defend themselves that the clients want us to file cases on husbands, so we have to suggest appropriately.  However, such a stance goes against the legal profession which is often held out to be ethical, high-standard, and a service to society.  Also, it flies in face of evidence that legal community is usually opposed to any amendments to law which reduce arrests of husbands, or reduce conflict during divorces.
5. Lawyers also try to be a ‘counsellor’ by suggesting to husbands to “move on”, rather than face a false case.  The words move on are basically same thing as: agree to lumpsum payment and ‘mutual’ consent divorce.
6. In the end, the high conflicts during divorces does not benefit the fighting couple in anyway, because they lose both money and time in the process.  The society, law and order, and justice delivery system doesn’t benefit in anyway, because the time spent in useless IPC 498A and IPC 377 cases could have been spent on other real crimes; and the time of judiciary in trying these cases for years could have been better spent on other pending matters before the courts.  But those advocates involved in divorce cases definitely benefit from it, so there is a conflict of interest between the parties who file divorce, and the legal community which advises them.

The case for the celebrity divorce lawyer

To be continued…