• Divorce and child custody

Here is an interesting case. 

My friend is an Army personnel, while he was away on his job his wife had an active extramarital affair (outside his knowledge).One day she called him and informed that her FB account has been hacked and is used by somebody to circulate her morphed photos with him. He believed him, as he had no reason to suspect her. She said that he also somehow got hold of her phone and now has everybody's number in our family (which he used to circulate the same pictures over whatsapp). A month later, one night he got a call informing him that his wife and son (2 year old) had not returned home since evening. Following which a missing complaint was filed with the police assuming they were missing or even being kidnapped by her alleged harasser but, as the case progressed it surfaced that she had eloped (along with their only son) with her alleged harasser with her consent. This means that she carefully planned everything for a month or more and then ran away when time was suitable to execute her plan. They returned eventually, as they ran out of money (which they had withdrawn through cheque from my friend's joint account with her). 

Now he wants custody of the child and divorce with her. What all option does he have? While divorce is secondary, custody of the child is his primary concern. He can no longer trust custody of his kid with such an irresponsible, infidel/treacherous and fraud lady. What all evidences does he need in order to strengthen his case and secure the custody of the child. Is closure report of the missing FIR report important?, if yes, what details will be favourable to him in court case? As per my understanding court generally rules in favour of mother, especially when the child in under the age of 5, does this applies in this case as well?

You valuable suggestions and guidelines are highly anticipated and appreciated.

Note: He has photographs and chat history of her lover (alleged harasser).
Asked 7 years ago in Family Law
Religion: Hindu

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4 Answers

since son is only 2 years old court would not grant your friend child custody

2) court would award the biological father visitation rights

3) husband should file case of adultery against her lover under section 497 of IPC

4) file for divorce against wife on grounds of adultery and mental cruelty

5) seek joint custody of child

6)rely upon missing police complaint , police closure report

7)photographs of wife with her lover , chat history

Ajay Sethi
Advocate, Mumbai
95168 Answers
7604 Consultations

5.0 on 5.0

1.If the child is still with your friend then there is no requirement to file custody suit as it is filed when the child is taken away from him.

2. if his wife again elopes with the son then he can file such suit .The proofs he ahs is suitable to get favourable order.

3. in the meantime he can ensure that his wife while leaving the home can not take the child away and if he ensures this then even if his wife leaves it will she who will have to file custody suit.

4. Your friend may take one chance to reform his wife and if she does then for the sake of the child she cna be condoned.

5. The amount of proof your friend has may prove a leverage to get his wife back on track.

Al the very best.

Devajyoti Barman
Advocate, Kolkata
22917 Answers
497 Consultations

5.0 on 5.0

In this case if it has been proved that she eloped with her paramour but lodged a false complaint with the police, the police investigation and closure report can be documentary evidence for both, the divorce case as well as for the child custody case.

Her infidelity can be a good reason to seek child custody besides other grounds

The documentary evidences to prove her extra marital affairs and adultery shall support to ensure a favorable decision in the child custody case though she may argue that the child is too infant to give him custody.

Same grounds would help him navigate through the divorce case too, easily.

T Kalaiselvan
Advocate, Vellore
85369 Answers
2231 Consultations

5.0 on 5.0

according to Hindu guardianship act, mother is the natural guardian of the child below the age of 5 years, but is not mandatory. if court satisfies that for the welfare of the child his custody should be given to father then court shall pass such order however mother is the natural guardian .

if she is not working and she has no means to take care of her child then custody of child may be given to his father. if it is proved that she has extramarital affair so your case will become more stronger because a careless mother cannot take proper care of her child.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

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