• Child Custody in case of adultery

I am married for 7 yrs with a child aged 2.8 yrs.me and my husband were living separately for job purpose.I am a doctor by profession,my husband is a teacher and since marriage I have been mentally and physically tortured by my husband and his family also they used me for money.In the last few months I have got mentally and physically engaged with a guy.Though I had no intention to leave my husband and child..and also I had tried several times to get out of the affair but could not.When my husband came to know this he followed us for 15 days..took snaps,arranged some detective agency to collect some audio tapes.Ultimately he took my son away without informing us to his native place.When I reached there to get my son back..he tortured me physically and mentally in front of all,forced me to resign from my job.and forced me to sign in mutual Divorce paper with the child custody with him.Now in that situation I was forced to accept all those in human behaviors and I have not made any police complains.Now I have managed to get one job.He kept my son and did not allow me to see my child even.My only question is shall I be able to get the custody of my child after divorce?what what will be the consequences.Just to say I am in touch with that guy telephonically because I am getting some positive thinking from the guy..will it hamper to get the child custody?it is difficult for me to live without my child ..also not possible to live with my inhuman and insecure husband.Please suggest me...
Asked 2 years ago in Family Law from Kolkata, West Bengal
Religion: Hindu
1) has divorce been granted by family court? 

2) if divorce has not been granted by family court you can refuse to appear at time of second motion  or can with draw your consent . 

3) make application for child custody . 

4) you can also file DV case against your husband . 

5) mere photographs of you with another guy is not sufficient to prove adultery . what are the contents of audio tapes? 

6) it would be difficult for your husband to prove adultery .
Ajay Sethi
Advocate, Mumbai
23290 Answers
1219 Consultations
5.0 on 5.0
In the situation you are in, and since the child is only 2.5 years old, there is every possibility of your getting the custody, despite your affair with another person. However, (1) has the mutual consent divorce petition been filed in court? If not, you may file a contested divorce petition yourself on grounds of desertion and cruelty; Along with the divorce petition, you may also file an application for custody of your child; (2) does the photos/video show any intimate relationship? If not, it may be difficult to prove adultery charge against you. (3) if the mutual petition has been filed, you may not appear in court on the second motion, which will have the effect of such petition being dismissed. (4) apart from the divorce petition, you may also file an application under the Domestic Violence Act (as suggested by Mr. Sethi).
Prabhat Shroff
Advocate, Kolkata
141 Answers
39 Consultations
3.8 on 5.0
1. Divorce has no co-relation as such with the issue of child custody. Child custody and divorce are two separate issues which have to be decided separately by the court. You are free to file for divorce on the ground of cruelty at any time. The above being said, if your husband has been able to collect proof of your infidelity then he will surely use it in the court to defeat your claim for child custody. 

2. The nature of conversation recorded on the audio tapes, which he has collected through the detective agency, has not been mentioned by you. It is also unclear if the divorce has been granted so far by the court or not. If divorce was filed by your husband you must have been issued a notice for appearance by the court.

3. Your husband could not have taken the child out of your custody in this manner. You can move the High Court for the release of your son from the custody of your husband.

4. It may also be added that if your husband succeeds in proving your infidelity you will lose your right to claim alimony for yourself.

5. In addition thereto, the man with whom you have developed the extra marital relationship can be imprisoned for up to 5 years if your husband files a case for adultery against him. It may be difficult for him to save himself in the light of the fact that your husband has been able to collect audio recordings of your conversations with him.

6. You have the right to file a complaint for domestic violence and dowry harassment against your husband.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
1) the evidence mentioned by you does not prove adultery . 

2) you can make application to court to with draw your consent . MCD petition would be dismissed by court . 

3) inform your husband that you are not willing to grant him divorce by mutual consent if he insists on child custody . 

4) generally custody of child is given to mother . you can file for divorce later after dismissal of MCD and seek custody of child
Ajay Sethi
Advocate, Mumbai
23290 Answers
1219 Consultations
5.0 on 5.0
In that case, it does not seem that the "adultery" point has any merit; and you may proceed further as advised earlier.
Prabhat Shroff
Advocate, Kolkata
141 Answers
39 Consultations
3.8 on 5.0
1. Th adultery f proved can determine the fate of your marriage but not the custody of the child.
2. if you could establish that the welfare of the child is at stake with his father then you may get his custody.'3. To avoid complications you better retract from what you have stated in the mutual divorce petition dn file a fresh one without making any whisper about the child.
3. if you get hold of the child you may refuse to hand him over to your husband. 

Extra-marital affair has a price to pay, always.
Devajyoti Barman
Advocate, Kolkata
5223 Answers
54 Consultations
4.9 on 5.0
Dear Queriat
You may file an application for withdrawal of your consent as Mutual Consent divorce has been filed before the Family court where the matter is pending.

the court is bound to hear you and dismissed the petition filed by You and your husband u/s 13 B of Hindu Marriage Act, after that you may add your terms as child custody, if he is agree then ok otherwise fight the case on merit.
Nadeem Qureshi
Advocate, New Delhi
3534 Answers
130 Consultations
4.9 on 5.0
1. The nature of proof disclosed by you does not in any manner reveal point to adultery. The right to seek child custody can be exercised by you untrammelled by the proof of adultery in his possession.

2. Did you appear in the court on the first hearing of the divorce petition? Did you place your signature on the petition and/or affidavit? You have the right to refuse to continue the divorce case filed on the basis of mutual consent.

3. If you want divorce then file for divorce on the ground of cruelty by your husband. If you have finances you can easily contest the cases which he may file against you.

4. You have not mentioned as to the time which has elapsed as from the date on which your husband took the child away from you. Depending on the interregnum period between the date on which the child was illegally taken away and now further legal recourse can be charted out. I hasten to add that if child is living with one parent for a considerable time the courts normally do not divest that parent of his custody. So act swiftly if you want the custody of your child.
Ashish Davessar
Advocate, Jaipur
18158 Answers
449 Consultations
5.0 on 5.0
Chances are very remote to get custody of the child if your husband proves in the court that you are indulged in a adulterous life during the substance of the marital relationship.

Thanking you,
Subash M R
Advocate, Bangalore
176 Answers
8 Consultations
3.6 on 5.0
1. File an application withdrawing the MCD,

2. File a divorce petition claiming custody of your child,

3. Since your child is only 2.8 years old, you will be treated as  his/her natutral gurdian and his/her custody is likely to be granted to you.
Krishna Kishore Ganguly
Advocate, Kolkata
12118 Answers
231 Consultations
5.0 on 5.0
your photographs are sufficient to prove that you have extra marital relation. kissing scene in hotel room is itself constitute circumstantial evidence that some more than this was happened in hotel room. at this evidence your husband shall get divorce and also prosecute your friend for adultery.  adultery is offence against husband, if he does not file any case he is showing mercy upon you. at this time you have very limited options. you can't file DV application because your chastity would be challenged then you'll get nothing. you should maintain distance from your friend  and try ti settled this issue amicably. 
 if you file divorce petition then you can get divorce and custody of child maximum upto his 5 years age. after that his father can claim his custody for better education. if you wand to maintain his custody you should avoid to be remarried for some years without having illegal relation. if your child is happy with you, his father is precluded for getting custody.
Shivendra Pratap Singh
Advocate, Lucknow
2752 Answers
41 Consultations
4.9 on 5.0

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