• Evidences and witness statement

My wife filed a divorce case and pressed charges of Adultery , desertion & non responsible husband .  The case is filed at my home town 1000 km away from the place we currently stay. All these charges are false and I have documented proofs , recordings and witness for the same. 

THE BACKGROUND: In reality she was careless and irresponsible mother. Since my son started going to school ( age 5) she completely stopped caring about him. Initially she use to be at home but it was always me who use to get him ready , get his tiffin ready , send him to school , pick him , bath him , feed him , play with him , feed him in the evening and eventually put him to bed. She would not care for child at all  and leave him up to me or maids .She would be busy watching TV or surfing internet.  Later she started working and would go to office at 9:30 morning and will come back only at 8:00 PM leaving all child care on me. This became the major issue and after several fights one day she left the house with my son ( now 6.5 years) and failed the divorce and prayed for child custody on the ground of adultery . I have filed the RCR and now planning to file for child custody as well. 

Questions:
A. All the maids (3) and My Driver have witnessed how she used to treat my son . Apart from them my neighbours are also willing to tell the truth. The case has been filed in different place where it may not be possible for these people to travel  . What are the way to take their statement which will be admissible in court ? Can I take them in front of a magistrate and record their statement ?
B. School is willing to give in writing that she never attended any of the open school , sports day etc. what format should I get it from school that will be effective in court ?
C. I have Audio recording of her aggressive behaviour will it help in my claim of child ? is that admissible in court ?
D. I was denied physical relationship and as an act of desperation I have exchanged few emails with unknown women from adult website as well as put up my profile on one adult website. I also have exchanged few emails with escorts and discussed the cost / availability etc. However I never was in face to face contact with any one . My wife might have an access to these emails , is it good enough to prove Adultery and win the child custody
Asked 3 years ago in Family Law from Pune, Maharashtra
Religion: Hindu
1)you have to lead evidence of these witness in support of your claim . evidence is filed by means of affidavit of evidence . these witness will be cross examined by your wife lawyer . 

2) you have to file affidavit of teacher in charge of your child class or some other witness from school . she will be cross examined too 

3)audio recordings are admissible in evidence but it has to be proved that it has not been tampered with 

4)child custody is generally given to mother . you may get visitation rights . paramount consideration is welfare of child . exchange of emails is not sufficient to prove adultery . if she has some incriminating photographs or you have gone in hotel room with some lady that may help your wife in adultery case .
Ajay Sethi
Advocate, Mumbai
23386 Answers
1229 Consultations
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How the case is filed at such a distant place? Was the marriage solemnized at that place or presently the wife is staying  at that place? Challenge the jurisdiction of the court if the jurisdictional factors are missing in  the case. 

Regarding proof of adultery  a strict proof is required. Since there is never a direct evidence of adultery,this will be a matter of proof upon evidence which need not be direct, but must be of such character as would lead the  discretion of a reasonable and just man to the conclusion that no inference other than that of misconduct can be derived from it. The evidence must be clear and cogent both as to inclination, opportunity and conduct. 
E-mails described by you could lead to conclusion of your inclination and conduct but whether you had opportunity or not shall be on evidence. The onus of proving the same is on your wife.
H. S. Thukral
Advocate, New Delhi
520 Answers
125 Consultations
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