• Extra marital affair

My brother is married to the girl for past 4years , the girl is not respectful towards my widow mom and me (tho I dont live in the same house infact i dont live in the same state). This girl mentally torturing my mom and my mom is senior citizen with arthritics. In fact she mentally tortured my brother and influenced him not to talk to anyone of us.
Now the scenario is my brother got involved with other woman. Everyone (the entire family) is aware about the same , and after the fact he is ready to talk to his wife and wants to come on the common ground to get the divorce. Per him he can't live with his wife anymore as he is not at all happy. However when my mom was visiting her brother and my brother was at work. His wife and her mother moved to my mom's house (my mom owns the house) and immediately she is claiming that the house is hers and she will not gonna move out. She is saying because her husband cheated on her, and currently she will take the house. 

So my question is how can my brother initiate for divorce, tho he is on the fault-line by having affair outside the wedlock ? As far as I know having extra marital affair is not a criminal offense. But don't know how to proceed as Indian police are biased towards the girl and most probably they will not going to listen to my brother even he is been mentally tortured by his wife. And my mom is now kinda of homeless . Please recommend what to do ??
Asked 4 years ago in Family Law
Religion: Hindu

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21 Answers

You can file application on behalf of your mother under protection of women from domestic violence act to recover the possession of your property/house of your mother. The daughter in law has no right to stay in house not belonging her husband. Your brother can file case for divorce on the ground of harrsssament to your mother. Your mother can also file a police complaint for forcefully dispossessing her from her property and for trespassing by daughter in law and her mother.

Ujwal Rajan Phasate
Advocate, Nagpur
37 Answers
4 Consultations

5.0 on 5.0

Firstly the house is in whose name? Ask that person to lodge a police complaint.

A mere extra marital affair does not amount to cruelty and no ground for divorce.

Ask your brother to deny such as false and concocted

Aveek Bose
Advocate, Kolkata
1222 Answers
9 Consultations

4.7 on 5.0

Having an extra-marital affair is per se not a criminal offence but a person cannot take advantage of his own wrongdoings meaning to say that his wife can easily turn around and say that i have been living separately because of his affair. In such case Court is not going to grant him a Divorce if she is able to prove his extra-marital affair, which might be a cake-walk for her given that everyone knows about his affair. So first of all ask your brother to cut off all contact with the second lady or atleast be discreet. He needs to build up a case before he can initiate any proceeding as of now.

As for your mom is concerned, she can file a civil suit to evict her daughter-in-law and restrain her entry into her house.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

Your mother can seek an injunction from civil.court restricting her to enter house as mother is sole owner of property. Wife has no right over her property. Also she can file a domestic violence complaint on the wife of your brother.

Own extramarital affair can be ground for divorce but yes your brother can file by showing cruelty and harrasment of.your wife by treating mother and husband.badly.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Please note if the property is acquired by your mother through her income or her ancestral property your sister in law has no right to claim right on property even if it is bought by your brother. Secondly if your brother files for divorce it's better first so that she cannot put false harassment case later. Also file a suit for eviction and mandatory injunction of your sister in law and her mother from local jurisdictional court.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

Your mom does not need to disown her as the wife has no right in mother in law property.

She can get an injunction order against her from the court restricting her entry from house.

Let your mother file case she won't be required to present before court every time your lawyer will take care.

Your brother can file divorce against her on ground of cruelty towards himself and mother.

Also mother can file a domestic violence case against her.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1) Yes, your mother can drag out your SIL from mother's own house by giving complaint in the police station and show all proof of the house I.e. Property papers etc.

2) Secondly your SIL is threatening and torturing to your mother, plus she is attempting to suicide. Any how your mother should take the possession of house. Women cell can help your other which are sitting in police station.

3) Before your SIL will take step towards FIR or complaints in police station against your brother and mother. Ask first to your mother give complaint against her on above point 2 based.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

1) your mother should file suit and seek court orders to direct wife to vacate portion of house in her possession

2)also seek permanent injunction restraining daughter in law from disturbing her possession of the house

3)your brother can file for divorce on grounds of mental cruelty

4)wife abusing mother in law amounts to mental cruelty

5) divorce by mutual consent is best option

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

Yes sir you get POA from your mother to prosecute case on her behalf and file a suit for injunction and eviction against your sister in law and her mother. Since property is in name of your mother your sister in law has no right to sit on property. Also file police complaint that your sister in law is threatening to commit suicide to extort Money from your mother.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

1. Your brother is free to file a petition for divorce on the ground of cruelty. He should collect some evidence in the form of audio and video recordings which can prove the acts of cruelty.

2. Having an extra marital affair can translate into the offence of bigamy depending on the degree of evidence that is forthcoming.

3. If the house in question wherein his wife is residing is owned by your mother then nobody has any right to even enter the house without her permission. Your mother should file a suit for the eviction of her daughter in the civil court. If your mother executes a Power of Attorney in your favour then you can file the case for and on your behalf.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

If you mother don't wish to nobody can live in that house. She may take the help of the police to evict the land along with the husband and brother for time being on complaint of taurture and suicide threat.

After that he can file divorce petition on cruelity but he should be ready to face any adultery case as he in relation to other women

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

Dear Querist

Your mother may file a complaint before the District Magistrate under the Senior Citizen Welfare and maintenance Act for eviction the house and the DM have the power to pass an order against her and evict her from the house of your mother.

your mother may also file the domestic violence case against her if both of them(Your Mother and she) resided together at any point of time in the house and claim protection and eviction from your mother's residence Under section 18 & 19 of the Protection of Women From Domestic Violence Act-2005

Apart from the above, your mother may file a civil suit against her before the civil court for eviction from the property and also claim damages/Mesne profit.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
6220 Answers
302 Consultations

4.9 on 5.0

Dear Sir,

First I wish to convey my strong objection to the word “Widow mom”. Mom cannot be widow at any point of time. Your brother may not be willing to give divorce to your sister-in-law. Since he is having extra marital affair it is an offence under Indian Penal Code and on that ground itself your brother may be put behind the bars if your sister-in-law desires. The married woman is having several legal weapons in her hand. As per as the welfare of your mother is concerned you can keep her in your separate house and let her live a peace life. She can take shelter under Senior Citizens Act, 2007 to protect her person and property and even she can get maintenance from her children.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

1. If your brother's wife can lay hand on any evidence that your brother and his paramour had physical relationship (like having evidence of hotel register showing both of their signatures therein for the purpiose of night stay, then your brother will be charged with the allegation of adultery u/s497 of IPC punishable with jail term for 5 years.

2. Your brother should collect evidence of her cruel behavoiur with himself and all his family members by audio/video recording her conversations and acts and then file a divorce suit on the ground of cruelty.

3. Your brother should now take up a rented house nearby leaving your mother's house duly informing it to his wife and wait for her going to her mother's place.

4.Your mother should then lodge a police complaint against her said daughter in law alleging physical assault and also file a DV case against her. Thereafter she shall have to file an application before the Court under Order 39 Rule 1 & 2 praying for a stay on her restraining her entry in to your mother's house.

5. Once her entry in to your house is restrained and the divorce case is filed, your brother shall have to pursue with the case fittingly.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

1. Audio/Video record her such threats of committing suicide for blackmailing you.

2. Thereafter let your mother lodge a police complaint against her and file DV case and also act as advised in my earlier post.

3. A legally wedded wife has all the rights to stay at the place where her husband is staying. So, you can not throw her out legally so long your brother is staying therein.

4. After he takes up rented accommodation nearby, he should act as advised by me in my earlier post.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

File divorce petition on the basis of cruelty. Police has no business in divorce petitions. Also file an eviction suit and claim mesne profits from the wife

V Ranjan
Advocate, Delhi
62 Answers

5.0 on 5.0

you and your brother proceeding with the case may not work. However, your mom does not need to physically evict your brother's wife out of the property. She just needs to brief a good lawyer. Then she can be exempted from her personal appearance on each date.

As far as your brother is concerned, ask him to file an NC in the local Police Station putting on record the threats of his wife.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

Your brother can file a divorce case on the grounds of cruelty.

Having extra marital affairs is not an offence.

In retaliation she may lodge criminal complaint for dowry harassment and DV case.

He should obtain AB and challenge them separately on merits.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

If it's a jointly owned property your brother should transfer his rights to your mother by a registered gift deed.

After this your can initiate steps to eject her the property legally by filing a suit for permanent injunction and ejection.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

Hello,

Note that thought he extra marital affair is not an offence per se but the girl on the basis of the same might file a case harassment against the brother and the entire family.

So, you will have to be very careful before filing the case of divorce

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

No you two can not file a case on behalf of your mother.

Also, what you may do is, ask your brother to move out of the house and start living on rent with the wife.

Also, stop conversation with that girl and thereupon after 6-8 months collect evidences of the cruelty of the wife and file the case.

regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

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