• Case on my wife's lover

My wife have eloped with her lover somewhere. 
1. What case I can file on that boy?
2. How can I get quick divorce if she don't come forever?
Asked 1 year ago in Family Law from Cuttack, Odisha
Religion: Hindu

1. File a writ of habeas corpus in the HC and file the case of abduction in the police station.

2. File a divorce and let the notice be served upon her, when she will not come back then the court will proceed ex-parte to grant you divorce

Regards

Anilesh Tewari
Advocate, New Delhi
16918 Answers
259 Consultations

5.0 on 5.0

Hello sir , you can register a FIR for adultery against the boy.. You need to have sufficient evidence regarding the affair for registering of FIR ... Once the FIR gets registered , we can file a divorce petition on the same ground .. What all evidences you have ?? you can get back to me for drafting of complaint

Hemant Chaudhary
Advocate, Gurgaon
4258 Answers
31 Consultations

4.9 on 5.0

Dear Querist

first of all file a criminal complaint against her lover before the Police for the offence of Adultery U/s 497 of IPC and get NCR report from the police then file an application U/s 155(2) of Cr.P.C. before the Magistrate Court for permission of arrest and investigation the matter by police.

or,

File a criminal complaint directly before the magistrate Under Section 190/200 of Cr.P.C. against her lover for the offence of Adultery U/s 497 of IPC.

After filing the above complaint, you may file a divorce petition based on cruelty Under section 13(1)(ia) of Hindu Marriage Act-1955 and if she will not appear before the Court the Court can proceed her ex-parte and grant an ex-parte divorce to you within 1 year.

Feel Free to Call

Nadeem Qureshi
Advocate, New Delhi
5332 Answers
257 Consultations

4.9 on 5.0

File a writ of habeas corpus in high court they shall be brought before the court and if in case your wife admits before court she has gone with her will with that boy than file a divorce on ground of adultery even if she doesn't appear before court present evidence you will get an ex-parte divorce.

Also register an FIR against the lover for abduction under IPC 362,365 and 366 along with 497 and 498.

Section-497- Adultery “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.”

Section-498- Enticing or taking away or detaining with criminal intent a married woman “Whoever takes or entices any woman who is and whom he knows or has reasons to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.

Shubham Jhajharia
Advocate, Ahmedabad
19332 Answers
75 Consultations

5.0 on 5.0

The acts done by your wife falls within the category of adultery and enticing for elopement which is prohibited and liable for conviction under section 497 and 498 of IPC.

So Once you lodge complaint on this ground FIR can be registered and the police can arrestthe aprpamur of your wife.

However please note that under these sections only parner of your wife will be arrested and prosecuted and no criminal prosecution will lie agaisnt you wife.

However on this ground you can apply for divorce which if contested by your wife take a lot of time.

For quick divorce mutual divorce remains only option which requires consent of your wife which may come at a price most likely.

Devajyoti Barman
Advocate, Kolkata
17808 Answers
252 Consultations

5.0 on 5.0

File FIR on the boy for adultery and at the same time file a divorce petition on the wife citing the reason for the adultery and dishonesty including the leaving the home without information.

If she don't appears in court you will get exparte after court satisfied of non appearance.

Vimlesh Prasad Mishra
Advocate, Lucknow
5507 Answers
18 Consultations

4.9 on 5.0

Lodge missing diary with details of your wife and the other man and do it at the earliest for your own safety.

Ask her to file divorce and keep your evidences ready

Aveek Bose
Advocate, Kolkata
951 Answers
4 Consultations

4.7 on 5.0

1. Lodge a kidnapping case as well as under Section 494, 496, 497 and 498. of IPC in the jurisdictional Police Station.

2. Based on proven adultery committed by your wife, you can get divorce or else convince your wife to agree for mutual consent divorce which takes very less time and after obtaining MCD, you can start your life afresh.

Shashidhar S. Sastry
Advocate, Bangalore
2118 Answers
144 Consultations

5.0 on 5.0

File case of adultery on her lover under section 497 of IPC

2) file for divorce on grounds of mental cruelty and adultery

3) make her lover co respondent in the case

Ajay Sethi
Advocate, Mumbai
66944 Answers
4041 Consultations

5.0 on 5.0

Section-498- Enticing or taking away or detaining with criminal intent a married woman “Whoever takes or entices any woman who is and whom he knows or has reasons to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”

Section-497- Adultery “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.”

1. You should lodge an FIR under the above mentioned sections against the boy before the police and DCP of your area after narrating all the facts of illicit relation between them even after your marriage.

2.According to Hindu Marriage Act , having sexual relation/intercourse voluntarily with someone else other than one’s spouse (Adultery) is a valid ground for divorce.

A single act of voluntary sexual intercourse by a marriage partner with any person other than their spouse is a ground for a decree of divorce under the provisions of the Hindu Marriage Act,1955

So, on the above said FIR against the boy ,you can get decree of divorce against your wife quickly.

Mohammed Shahzad
Advocate, Delhi
496 Answers
18 Consultations

5.0 on 5.0

1) Yes you can file case against both under sections of IPC 493 - 498 and plus on wife adultery for divorce latet on.

Ganesh Kadam
Advocate, Pune
7477 Answers
65 Consultations

4.9 on 5.0

1. File a complaint at local ps. If they refuse to take FIR, write letter to superintendant of police of your district. Thereafter file complaint at court.

2. File petition for restitution of conjugal rights. If wife does not appear at proper time at court, court will grant divorce.

Tathagata Sarkar
Advocate, Kolkata
9 Answers

4.0 on 5.0

1. File a writ of habeas corpus and also file a FIR for abduction against this fellow.

2. Apply for divorce on the ground of cruelty and desertion.

Vibhanshu Srivastava
Advocate, New Delhi
8566 Answers
134 Consultations

5.0 on 5.0

Respected sir ...

1- sir it is clearly stated under section 497 of IPC that Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, you can charged him under this section

2- sir it would be much better for you to file a divorce petition under section 13-A of HMA seeking divorce decree from court without consent latter on which you can convert in the section 13-B of HMA with consent once you filled divorce she will be on knees ...

Thank you

Dinesh Sharawat
Advocate, Delhi
971 Answers
6 Consultations

4.9 on 5.0

1. You can initiate proceedings under Sec 497, IPC against the boy.

2. Quick I am not sure but you can definitely obtain a Divorce on the ground of adultery, if you have enough concrete evidence of your wife and her boyfriend, or cruelty.

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

1. You can lodge a criminal complaint under the provisions of section 497 ipc agaisnt that male who took away your wife.

2. You can file a contested divorce case on the grounds of adultery by impleading him as second respondent.

T Kalaiselvan
Advocate, Vellore
56705 Answers
701 Consultations

5.0 on 5.0

You can file adultery. You file divorce you will get exparte divorce in this case.

Prashant Nayak
Advocate, Mumbai
12892 Answers
22 Consultations

4.6 on 5.0

You can lodge a criminal complaint for the offences of adultery against that boy alone and not against your wife.

Adultery is a crime hence if they admit the crime then your job of prosecuting them will become easier.

T Kalaiselvan
Advocate, Vellore
56705 Answers
701 Consultations

5.0 on 5.0

If she elopes with their consent also adultery is made out as she is married and not divorced yet. It is not a false case

Prashant Nayak
Advocate, Mumbai
12892 Answers
22 Consultations

4.6 on 5.0

wife having sex with another man without husband consent amounts to adultery and case of adultery can be filed against her lover under section 497 of IPC

2)you would not face any problem as wife has eloped with another man during subsistence of marriage

3) however no case of adultery is maintainable against wife

Ajay Sethi
Advocate, Mumbai
66944 Answers
4041 Consultations

5.0 on 5.0

Yes if you wish then you can file the adultery case, mention the address where he last usually used to reside.

Even if they eloped as per the wish, still the case of adultery is made out against the said boy, because she is your wife.

Section 497 in The Indian Penal Code

497. Adultery.—Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

Anilesh Tewari
Advocate, New Delhi
16918 Answers
259 Consultations

5.0 on 5.0

In your case, you can file case in the court against her adultery. You can file for Judicial Separation.

Ganesh Kadam
Advocate, Pune
7477 Answers
65 Consultations

4.9 on 5.0

As advised, file a habeas corpus writ petition; or lodge a case/FIR for the offence of abduction against your wife's lover.

Vibhanshu Srivastava
Advocate, New Delhi
8566 Answers
134 Consultations

5.0 on 5.0

Adultery case on the boy.

file a habeas corpus in high court the police shall produce them before court.

Shubham Jhajharia
Advocate, Ahmedabad
19332 Answers
75 Consultations

5.0 on 5.0

Wife guilty of adultery is not entitled to any maintenance

2) let her file false case of dowry harassment. You can apply for and obtain Anticipatory bail from sessions court

3) let her parents file police complaint that daughter is missing

Ajay Sethi
Advocate, Mumbai
66944 Answers
4041 Consultations

5.0 on 5.0

You gather the details of her boy friend and lodge a criminal complaint against him for the charges of adultery under section 497 IPC.

Dont worry about her threats for false 498a case, based on the habeas corpus petition and the police reply you may first get enlarged on bail and then challenge her fasle case in the trial court stating this as a retaliation for the criminal complaint you had given agaisnt her paramour.

You may also file a divorce case on the grounds of adultery by impleading him as a second respondent.

If adultery proved then she may not be entitled for maintenance also.

T Kalaiselvan
Advocate, Vellore
56705 Answers
701 Consultations

5.0 on 5.0

First of fall you have enough evidence file case of adultery on her lover.

Secondly the court has recorded her extra marital affair further take affidavit from her parents stating that her daughter is lying and you have not committed any harassment on contrary she has committed adultery and harassment.

then if she is not agreeing for mcd file a divorce on ground of cruelty and adultery further lying and adulterous wife not entitled to maintenance.

Shubham Jhajharia
Advocate, Ahmedabad
19332 Answers
75 Consultations

5.0 on 5.0

Dear friend,

Why bother about that girl. Marry again after getting divorce. On the said grounds it is certain that you will get divorce very soon without any alimony.

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COURT VIEW section 497

The Hon’ble Supreme Court has opined this as a favorable discrimination towards women, as the law doesn’t envisage punishment for any of the spouses involved but additionally, not even for a woman outsider. Only an outsider man to the marriage is to be punished under Indian adultery law. It is for this favorable discrimination, the section has defeated the challenges questioning its constitutional validity (valid Article 15(3) of the Indian Constitution) in the apex court. The statute with provision are stated below.

The Hindu Marriage Act, 1955 and the Special Marriage Act, 1954

DIVORCE

The Hindu Marriage Act (HMA) under Section 13(1)(i) and the Special Marriage Act (SMA) under section 27(1)(a) have mentioned in a very precise manner, that any marriage may be dissolved by a decree of divorce on filing of a petition by you on the ground that your husband or wife has, after the solemnization of the marriage had voluntary sexual intercourse with any person other than you

494. Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

In 2011, while hearing a matrimonial dispute, the Supreme Court criticised Section 497 of the Indian Penal Code. The Section, which criminalises adultery, defines it as consensual sex between a man and a married woman. The bench of Justices Aftab Alam and RM Lodha criticised the law on the grounds that it reduces married women to property of their husband.

The court was hearing the case of Kalyani, who had appealed against an Andhra Pradesh High court judgment. The court had dismissed her petition against a case under Section 497, by another woman Sailaja who had alleged that her husband was having an affair with her.

In 2016, not much has changed. Amit (not his real name), 40, is in the midst of a messy divorce after his wife’s alleged infidelity.

“Why will I take action against her lover when it is my partner who is at fault here? This has been going on for over a year, we have split up and it is public knowledge that she is with him. Yet I’m the one bleeding dry.”

Section 497 of IPC states that, ”Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting the offence of rape, is guilty of the offence of adultery…. In such case, the wife shall not be punishable as an abettor."

The section provides that the wife cannot be punished even as an abettor. Thus, the mere fact that the appellant is a woman makes her completely immune to the charges of adultery and she cannot be proceeded against for that offence.

“Only the paramour of a woman can be booked under the law with a premise that the man lured her into that relationship,” says Deepika Bhardwaj, noted men’s rights activist and filmmaker.

“Adultery is a moral wrong, not a criminal offence and the punishment should be the same for all,” she adds.

Although adultery by definition refers to any extramarital incidence of sexual intercourse, the Indian law criminalises only one form of adultery. It is illegal only if a man has sexual intercourse with a woman who is married without the consent of the woman’s husband.

However, it is not easy to prove connivance or consent.

For example, in the case of Bharatlal vs Top Singh, a trial court had sentenced Top Singh to RI for 1 year and fined for Rs. 700 for the crime of having an extramarital sexual relationship with Bharatlal’s wife. Top Singh had appealed to a sessions court and argued that there was a delay in the process filing a complaint by Bharatlal and that he had proved that Bharatlal had connived to the extramarital relationship. The court subsequently acquitted him of all charges. Yet, later the High court of Madhya Pradesh again reversed the decision stating that connivance was not proven.

Ironically, it was the British that introduced the adultery law in the IPC, but it remains unchanged in India even though the UK has long decriminalised adultery. Now, it remains a ground for divorce with the legal definition of adultery being “physical contact with an alien and unlawful organ.”

However in India, adultery is viewed in a way that a man’s lineage would be tempered with and the other male would be adulterating his blood line by having intercourse with his wife. Hence, the intercourse with the consent of the husband, is not criminalised as he is aware of the lineage.

But the law seems less concerned with protecting marriage than with controlling women’s sexuality The code does not provide for prosecution of that married woman, a single woman who engages in sex with a married man, or a married man who sleeps with a single woman. So, while the law may appear to favour women, it is easily disregarded that it is this very law that does not permit a woman to bring a case against them or the other person.The larger question, however, might interrogate the appropriate boundaries of the State’s reach. “What a person does in his bedroom, with another consenting adult, should never be a criminal offence,” says Alok Prasanna, senior resident fellow, Vidhi Centre for legal policy.

Concurring, Bhardwaj says adultery should come under the civil laws framework where the aggrieved person can claim damages or compensation, but one shouldn’t be jailed for it since it’s consensual.

“If at all it must be termed a criminal offence because of the harm it causes to the institution of marriage, it should be punishable for all-husband or wife and their respective lovers whether man or woman,” says Bhardwaj.

According to Bhardwaj, while the law doesn’t allow a woman to prosecute her husband if he is found cheating, but there are innumerable cases documented where a woman, caught cheating, then files cases under Section 498 A (the Dowry law), the Domestic Violence Act and other provisions for maintenance and alimony on finding that her husband is in an extra marital affair.

“There was recently a case where a woman filed a 498A case on her own cousin, alleging her husband was having an affair with her sister. It’s a different thing that the court ruled that her own sister can’t be made an accused, because she isn’t the husband’s relative, but because he was caught cheating, she slapped this case on him.”

Sanjay Sehgal’s (name changed) wife walked out on him and his 8 year old son in 2008. “I accepted it, till she attempted to play the woman card,” he says. “She wanted a house, a car and then threatened to slap a domestic violence case and that’s when I went to court.”

Sehgal filed a criminal case against his wife’s lover, Dilip Mehta (name changed) relying on videos of the couple in a car as proof. Mehta then moved the high court to question the constitutional validity of Section 497, saying in a changing society where “live-in relationships are being legally recognised,” adultery as a criminal offence is no longer warranted.

The bench of Justice BH Marlapalle and Justice U D Salvi came down heavily on Mehta for these comments and said, “If somebody wants free sex, then first release themselves from the institution of marriage. If such acts are allowed, then there would be no civil society," the judges had said

While the judges observed that adultery was an "offence against the institution of marriage", they also had added that the section needs to be amended to bring women under the purview.

“It’s been 11 years,” says Sehgal who eventually settled out of court and got custody of his now 16 year old son. “Because the law is so skewed, I let the guy (wife’s paramour) go, why blame him? It’s a law of double standards.”

Adultery Divorce

Adultery Indian Penal Code

The word `adultery’ has been derived from the Latin term `adulterium’ and is defined as consensual sexual relationship between a married woman and an individual other than his/her spouse. Almost all religions throughout the world condemn it and treat it as an unforgivable offense. However, this may not be reflected in the legal jurisdictions of the countries but adultery is recognized as a solid ground for divorce in all penal laws.

The Indian penal code also recognizes adultery as a crime and a punishable offence. This law comes under the criminal law of India and has been placed under chapter XX that deals with crimes related to marriage. The laws as stated in the Indian penal code are:-

Section-497- Adultery “Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.”

Section-498- Enticing or taking away or detaining with criminal intent a married woman “Whoever takes or entices any woman who is and whom he knows or has reasons to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both”.

These laws were drafted in 1860 when India was under British rule and the condition of Indian woman was pathetic. During those periods, a man could’ve several wives and women were socially and economically dependent on men. Women were treated as an object and considered the property of men. Thus, while drafting the laws it was presumed that women are hapless victims, not capable of committing such an offence, instead, it must be a man who will entice her and involve her in an adulterous relationship. But these laws definitely treat a man and a woman unequally in the institution of marriage. According to these laws:-

1. Man is always a seducer and the married woman just an innocent and a submissive victim.

2. Wife is no more than a chattel to her husband and a third person had committed the crime of intruding upon his marital possession by establishing a physical relationship with his wife.

3. Only the husband of the treacherous woman (or a person who had care of the married woman) is a distressed party and he is liable to file a complaint against the third party.

4. There is no provision in the law for a woman to file a complaint against her adulterous husband. If a married man commits adultery with an unmarried woman or a widow or with a married woman with the consent of her husband, his wife is not regarded as an aggrieved party and she is not permitted to make any official grievance against her husband.

Considering the changes our society has witnessed in recent times, the Indian penal code must revise these laws and upgrade them keeping in mind the equality of men and women and enabling women to have more freedom and liberty in making their choices.

Kishan Dutt Kalaskar
Advocate, Bengaluru
4433 Answers
112 Consultations

5.0 on 5.0

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