• Extra marital affair

My dad is cheating on my mom from past 10 years by having an illicit relationship and also has 3 children through her. Those children are almost the age of my son and one still younger. He is aged about 63 now and started this affair when he was 53 yrs. We came to know about this and questioned him. We have all proofs. He is been giving all evasive replies and using our house as a guest house now just to come after job, sleep and go to work. I have a elder sister who is a  special child, she is dependent on parents for life long. We are thinking of lodging a police complaint against both of them. Want to know the after consequences of lodging the complaint. The other women is 35 yrs now and was a spinster when she started this relationship. Even now he says he did nit marry her. Its more like a live in relationship with 3 children. Let me know the consequences of the case after lodging a complaint with the police.
Asked 1 year ago in Family Law from Hyderabad, Telangana
Religion: Christian

1) no case of adultery can be filed by wife against her husband and his girl friend

2) wife can file DV case seek right to stay in matrimonial Home , Mai temance from husband and compensation for mental torture undergone by her

3) she can also come application for maintenance under section 125 cr pc

4) best option is to convince husband to transfer his property in your mother name

5) don’t file any case

Ajay Sethi
Advocate, Mumbai
66961 Answers
4043 Consultations

5.0 on 5.0

First lodge an FIR on grounds of 498a by your mother. Then file 125 crpc maintenance and secure all of yourself and divorce on grounds of adultery.

Aveek Bose
Advocate, Kolkata
951 Answers
4 Consultations

4.7 on 5.0

Dear Concerned,

Bigamy and Adultery both are punishable offence. Your father is involved in what seems a Bigamous relationship and please be aware that the children out of the second woman in your fathers life does have all the rights and interest in the present properties of your father.

The maximum you can do here is file a complaint on behalf of your mother on the said grounds and later pursue with Divorce - HOWEVER at this age divorce and such complaints does not make sense. Hence concentrate on the Assets side. The properties which your father has need to be taken care off so that your mother's interest is safe and sound.

At this age for your mother it is not advisable to go to court for separation or seeking financial support , rather speak with your father for her interest in properties.

Best of luck

Atulay Nehra
Advocate, Noida
1204 Answers
47 Consultations

4.7 on 5.0

See this is a technical situation as if a married man lives with an unmarried women without any marriage than it not any offence under any law in India.

So to file a complaint against your father your mother has to file it on ground that in her lifetime her husband married again and has issues (children from that) so it amounts to offence of bigamy under 494 IPC and criminal breach of trust and is punishable under law. But for that it has to be established they are married and based on your facts it is established.

Though on that women no charges can be pressed,

along with that your mother can also fie complaint under domestic violence on mental harassment.

And she can file and seek divorce on ground of cruelty and bigamy and adultery.

As per divorce law in India, the Indian Divorce Act, 1869 governs the divorce of persons professing the Christian religion. This Act governs only Christians. If even one of the parties to marriage is a Christian, that is sufficient to give jurisdiction to decide the petition under this Act.

Under the Indian Divorce Act, a husband can seek divorce on the ground that after solemnization of marriage the wife has been guilty of adultery.

A wife, however, may petition for divorce on any of the following grounds:

Husband has changed his religion and started professing some other religion than Christianity

Husband has married another woman

Husband has been guilty of incestuous adultery, meaning adultery committed by a husband with a woman with whom, if his wife were dead, he could not lawfully contract marriage by reason of her being within the prohibited degree of consanguinity.

Husband has committed bigamy with adultery, meaning adultery with the same woman bigamy was committed

Husband has married another woman with adultery

Husband has committed rape, sodomy or bestiality

Adultery coupled with cruelty

Adultery coupled with desertion, without reasonable excuse for more than two years

As per divorce law in India, The District Court or the High Court of competent jurisdiction is the appropriate court to file a petition for divorce under Indian Divorce Act.

2) Also your mother can seek right of residence , monthly maintenance and maintenance for your Sister and alimony for divorce. under section 36 to 38 Indian Divorce Act, also under section 125 CrpC and domestice violence act.

3) After filing complaint the police shall carry preliminary investigation and register a FIR and your father may get arrested for same, also then the case shall be put before the magistrate and the magistrate shall order investigation and police file charge sheet, further there will be evidences to the effect.

on FIR there is probability or father is arrested by the police if he is not granted anticipatory bail

Shubham Jhajharia
Advocate, Ahmedabad
19345 Answers
75 Consultations

5.0 on 5.0

1 No criminal case will lie against st the live in partner of your father.

2. If you have documentary proof of remarriage of your father then only criminal case of bigamy under section 494 IPC can be filed against your father and his girlfriend.

3. However your mother can file case under section 498A IPC. along with case for maintenance under PWDV Act for herself and the special child.

4. To free yourselves from him you cna star residing esle where and as your mother to file suit for divorce against him. If you wish to stop him from staying in your house then your mother can seek restraint order against him in the proceeding under PWDV Act.

Devajyoti Barman
Advocate, Kolkata
17808 Answers
252 Consultations

5.0 on 5.0

In spite complaining to the police, it is better to file for a divorce if your mother wants severe all kind of marital ties with him.

You can file for divorce under the ground of adultery under section 27(2)(a) of the Special Marriage Act 1954. Along with the divorce petition, you can also file another application for maintenance under Section 125 of the Code of Criminal Procedure, 1973.

Dishari Chakrabarti
Advocate, Kolkata
9 Answers

4.0 on 5.0

Your mother can seek for divorce from your father on the ground as mentioned in your post.

If your mother and sister are dependent on your father then they all can apply for grant of alimony and maintenance.

Moumita Mitra
Advocate, Kolkata
366 Answers
1 Consultation

4.0 on 5.0

Living with a woman without marrying her or having an affair with that woman out of his marriage even during the subsistence of his marriage, cannot be considered as an offence as per criminal laws of the country.

Marrying her can be termed as an offence under section 494 IPC called bigamy.

Your mother only can file a private criminal complaint before a judicial magistrate court for this.

Thus think twice before rushing up for legal remedy because yuo cannot achieve anything through police or legal means.

T Kalaiselvan
Advocate, Vellore
56726 Answers
702 Consultations

5.0 on 5.0

Can i have a best suggestion legally on how to proceed and make ourselves free from him.

Your mother has options to either file a divorce on th grounds of his adulterous life or to live away from him and claim maintenance as well as residential rights but continue this marriage without giving divorce to him.

As a daughter you cannot have any rights even for a petty case against him until your rights as a daughter are affected.

This adultery cannot deprive your rights as a daughter from him.

T Kalaiselvan
Advocate, Vellore
56726 Answers
702 Consultations

5.0 on 5.0

First of all , your mother have option to go for decree of divorce by two ways either mutually or by contested petition. Otherwise go for criminal complaint u/s 494, 498A etc.

After FIR police may arrest both of accused persons but here you have to take decision whether you want them to be punished or to live life after giving him divorce as if the allegations are proved right then this marriage might no longer survive.

i am counselor cum legal consultant and also can guide you in a very right way.

Jitender Kumar
Advocate, New Delhi
35 Answers

4.0 on 5.0

i can communicate over phone or E mail for detailed discussion.

Jitender Kumar
Advocate, New Delhi
35 Answers

4.0 on 5.0

1. Unfortunately, as per the law of our Country, no adultery charge u/s497 of IPC can be brought against your father by your mother or anybody for that matter.

2. Had the other lady been married to some one else, he said husband could have brought the charge of adultery against your father for having physical relationship with his wife witht his consent.

3. This is completely illogical but it is the law.

4. However, your mother can file a divorce suit against your father bringing the charge of cruelty against her since running an extramarital affair can be considered as an act of cruelty on the wife.

5. Your mother can also file an application praying for maintenance for herself and her children specially for her who is a special child.

Krishna Kishore Ganguly
Advocate, Kolkata
22518 Answers
594 Consultations

5.0 on 5.0

1. Your mother can get rid of your father by filing a divorce suit on the ground of cruelty.

2. However, she shall have to evaluate whether such divorce decree will give her any benefit or not.

3. It is to be noted that after the demise of your father, intestate, the children of your father through the other woman will equally inherit your father's properties along with you but will not inherit your ancestral properties.

4. Considering all aspects, you shall have to decide judiciously.

Krishna Kishore Ganguly
Advocate, Kolkata
22518 Answers
594 Consultations

5.0 on 5.0

Dear Sir,

First take the consent of your mom and then proceed. If she is not willing then you will lose the case. Further your father may lose his job and do not get any pension if it is a pensionable job. All of your family members will lose your father and the rate of conviction is maximum and your father may be put into jail along with his second wife. Discuss all this issues with your mom and other family members and then proceed.

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COURT VIEW

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.

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Section 494 in The Indian Penal Code

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.

(Exception) —This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.

Kishan Dutt Kalaskar
Advocate, Bangalore
4434 Answers
112 Consultations

5.0 on 5.0

1) First co-ordinate with your father, regarding what is his role towards you all and then take decision.

2) If your father is working in government organizations or he is government servent, than you first entered your mother's name on pension card and Form.

3) If he is private service employee than check his service is continuously in one organizations than check his service and pension & provident fund account.

4) You don't lodge any complaints against him wait and check on above points very well. And solve all your problems via free talk with him.

Ganesh Kadam
Advocate, Pune
7480 Answers
65 Consultations

4.9 on 5.0

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