• Allegation of Extra Marital Affair, made respondent no. 2 for petetion under section 123(1)(ia) HMA

My friend has received a notice containing a Petition filed by his sister - in laws (Saali) husband (petitioner), seeking divorce. My friend has been mentioned as respondent No. 2 therein, and the sister in law is respondent no. 1. The petition contains a lot of muck and seemingly concocted allegations on respondent 1, which seems to be an attempt by the petitioner to get decree of divorce under section 13 (1) (ia) and section 13 (1) (i) of Hindu Marriage Act, 55, and impose costs. They were married in 2013 and have a son who is around 3 years old. 

Petitioner is affluent businessman and has multiple industries. Resp: 1 is a daughter of an erstwhile affluent Industrialist who has hit on hard time after his companies have gone under NCLT. The 2 had a fairy tale wedding. Respondent 1 was close to her cousin sister and his husband (My friend, resp 2), and used to speak to them and consult them on various matters. They have however not been in touch since the last 20 months after they realized petitioner was not liking. My brother was not aware of the happenings in their house and are now suddenly besieged with this petition where my brother has been made respondent 2. In addition, the petitioner has levelled several wild allegations which include the following: -
a). He has accused my brother of having an adulterous relationship with respondent 1, along with being very friendly to another man, whom we don’t know. Though my brother had made one trip to their home in Ranchi after they had been blessed with a baby boy, and my brother happened to be in Ranchi for a bank consortium meeting. He had been to their house with gifts sent by my brother’s wife, and to see their new house on invitation by the petitioner. The petitioner was there throughout with him. 

My brother had also been to their new Delhi house once, on invitation. My brother who is a CA and into Project funding had visited the petitioner’s office when he was on a business trip to Delhi, to discussed avenues of funding of the petitioner’s new project in Jharkhand. On his invitation then to show his swanky new home my brother had been to their house. Petitioner now cites these visits and alleges that there were numerous occasions where my brother had adulterous relationship. he says his servants witnessed which is bullshit. 

b). He cite phone call records of respondent 1 speaking to my bro (Resp 2) and some whatapp chats which is not my brother. My brother and his wife often shared the same phone while speaking to resp 1. 
c). Resp 1 had sent gifts to my brother’s wife in his office address which was the postal address. That he says is a proof of amorous relationship. 
d). he enclosed a CD which has porn videos which he says my brother had sent on WhatsApp. 

We were shocked 2 know abt their marriage rocked. We don’t know why we are being made respondents to appear in Delhi in June. What are the repercussions? We fear loss of prestige. What if we don’t go? Pls advice help.
Asked 2 years ago in Family Law from Guwahati, Assam
Religion: Hindu

Issue notice to petitioner ti wirhdraw false and defamatory allegations made against your friend

2) if he refuses file complaint of criminal defamation against the petitioner under section 500 of IPC

3) also file civil suit for damages against petitioner

4) file detailed reply in divorce case denying allegations made

Ajay Sethi
Advocate, Mumbai
74502 Answers
4457 Consultations

5.0 on 5.0

Sir first of all file the detailed reply of the divorce petition denying charges levelled against you. present the fact before court that husband has falsely implicated you to take a divorce there is no other motive no any evidence of adultery or anything.

Move an application before the court along with reply to strike off name from the divorce petition as it is unnecessarily added.

Further give a legal notice to the plaintiff to withdraw the petition as it is on false grounds and it is likely to cause defamation and the allegations are false and baseless based on that ask them to either remove your name or withdraw petition otherwise you can institute a suit for defamation along a criminal complaint.

Also you have to along with your suit present evidence to the effect and challenge the validity of the evidence presented by him

Shubham Jhajharia
Advocate, Ahmedabad
24308 Answers
96 Consultations

5.0 on 5.0

If summons are received, then you should go. The failure to appear can lead to re-summoning only and in subsequent stages other processes. The primary lis is between the husband and wife and your friend/brother is added as respondent and consequently summoned for being a proper party.

Also, the proceedings under HMA are generally held in camera. So privacy and prestige will be taken care of.

All the Best.

Rohit Saraswat
Advocate, Ghaziabad
9 Answers

Not rated

Hello sir,

I am sole proprietor of Gaur & Associates and providing services in Delhi. Your friend received summon of divorce because your friend is the party of the petition which is filed on the basis of cruelity. So, on the hearing before the court, a written reply shall be filled on behalf of your friend to explain his version. For further assistance , you may contact me.

Thanking you

Shitanshu Kumar Gaur
Advocate, New Delhi
44 Answers

Not rated

1) If your brother has not done any wrong than don't worry.

2) Try to visit court and clarify the matter and file defamation case against Petitioner.

3) If you don't visit in the court they will get more chance to talk against you and may file criminal case against your brother under section 497 of IPC.

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.

Ganesh Kadam
Advocate, Pune
9665 Answers
80 Consultations

4.9 on 5.0

you should appear in that case and file reply decline all the allegations of the petition. Later on you can give him notice for feeling sorry as it has defame your image. these grounds are not sufficient for proving adultery most probably as per your points petition ll be dismissed but you should engage different lawyer for you not the same who ll appear for respondent no.1 . If you ll not appear then you ll be exparte and later on you could not file defamation against him

Tarun Budhiraja
Advocate, Rohtak
379 Answers

4.8 on 5.0

Dear Sir/Madam,

Nothing to worry. Please approach the High Court to delete the name of respondent No.2 as it was based upon false and baseless allegations. Further in a petition for Divorce the name of respondent cannot be put. There would be no respondent other than wife. Only in case of bigamy or adultery that too in criminal cases second respondent/second accused will arise. No relief can be sought against respondent no.2 as such this respondent no.2 is unnecessary and reputation of respondent no.2 is at stake, on these grounds the High Court will direct the petitioner/husband to remove the name of respondent no.2.

Kishan Dutt Kalaskar
Advocate, Bengaluru
5283 Answers
171 Consultations

5.0 on 5.0

1. The said case has no merit to stand legal scrutiny.

2. Just visiting house, making phone calls does not constitute adultery where physical relationship sjhall have to be proved.

3. The matter of the alleged sending of porn from his whatsapp address to her whatsapp address might have to be explained by the 2nd Respondent.

4. The 2nd respondent can lodge a police complaint for filing false case against him by the petitioner for causing damage to him.

Krishna Kishore Ganguly
Advocate, Kolkata
24040 Answers
659 Consultations

5.0 on 5.0

Firstly, sir it is the trend for some girl that she thinks she can file divorce cases and put any allegations on anyone despite the fact that the others have no interest in their matrimonial life.

Secondly, I advice you to carefully avert all the allegations in your written statement and fight the case.

Thirdly, rest I advice you to please take care of further steps or meetings with any close relative to her so as to ensure she doesn’t do something kind of hidden act to put other party in trouble while the pendency of case.

Sanjay Baniwal
Advocate, South Delhi
5209 Answers
12 Consultations

5.0 on 5.0

It appears that the petitioner has filed a divorce case against his wife on the grounds of adultery and impleaded your brother as respondent No.2 in the name of her paramour.

In fact the evidences what you have mentioned are not sufficient to establish acts of adultery.

Hence this case can be challenged properly as per law

T Kalaiselvan
Advocate, Vellore
64459 Answers
835 Consultations

5.0 on 5.0

You have to contest the case and as you are saying that the allegations are all baseless and frivolous, you can approach the High Court for quashing of the proceedings against your brother.

Kunaljit Bhattacharjee
Advocate, Kolkata
11 Answers

Not rated

Dear Querist

no need to worry, proving the allegation of adultery is not possible for him and he will lose this case.

your brother may appear before the court through counsel who deals in the matrimonial criminal cases and may take another date for appearance and the reply to the petition.

after winning the case, your brother may file a civil suit for defamation against him before the Court and may claim compensation as per the status of your brother and also claim damages as per the reputation of your brother.

even he may file a criminal case against him for the offence of defamation under section 499/500 of IPC.

Feel free to Call

Nadeem Qureshi
Advocate, New Delhi
5578 Answers
264 Consultations

4.9 on 5.0

U cannot be respondent in divorce case. Clear wt petition u recieve. Or upload for better advise

Arun Kasana
Advocate, Delhi
32 Answers

Not rated

They have to prove it.

Jaswant Singh
Advocate, Gurugram
665 Answers
2 Consultations

4.8 on 5.0

You can engage local lawyer have reply drafted by him and send it to your lawyer for filing it in Delhi court

2) what s app chat are admissible in evidence

3) contested divorce proceedings take 5 years to be disposed of

Ajay Sethi
Advocate, Mumbai
74502 Answers
4457 Consultations

5.0 on 5.0

1. Brother can appoint a lawyer and sign vakalat nama of lawyer then lawyer can present himself there and can file reply on your behalf in the court.

No it wont impact your case you have to present yourself at evidence stage.

2. Yes whatsapp messages can be admissible but if the other party dispute the fact that the messages are altered deleted than it looses it validity.

The content has to be seen but in most general sense the broadcast and sharing video doesn't mean anything.

3. The contested divorce can take around 4 to 5 years or more , file an application before court for deletion of your name it is really difficult the application will succeed but still you can try based on material presented by the petitioner further the validity of evidence and other things has to be under go trial so it will take some time

Shubham Jhajharia
Advocate, Ahmedabad
24308 Answers
96 Consultations

5.0 on 5.0

No files can be attached here, there is no provision for that.

You can engage the services of an advocate, brief him the facts and the background, handover the copies of the petition what you have received.

He will prepare a reply to be filed before court.

You can peruse the reply, make rectifications or amendments to the reply wherever you feel necessary.

You forget about the evidences in your possession because whatsapp or video calls or audio calls are not admissible as evidences in court of law until you follow the procedure of the provisions of section 65 B of Indian evidence act and that too during the time of defence evidence.

You will find lot os changes during the trial proceedings,. in fact the case also may take a different turn, he may even withdraw the case and may go for mutual consent divorce also. hence do not be too anxious so soon.

First engage the services of an advocate and follow his further advise on this.

T Kalaiselvan
Advocate, Vellore
64459 Answers
835 Consultations

5.0 on 5.0

yes you can engage advocate and you have to sign vakalatnama and your counsel ll file reply . you need not to go delhi court at this stage. you need not to worry about whatsapp messages untill that has been produced by the petitioner moreover you have defence that there was no vsuch chat between both of you

Tarun Budhiraja
Advocate, Rohtak
379 Answers

4.8 on 5.0

1. What is the prayer against your brother i.e. Respondent No.2? It is a divorce case filed against his sister in law by her husband which will not effect your brother at all. You can engage a lawyer at Delhi and submit your written objection to the said divorce suit which has implicated your brother.

2. Whatsapp messages can be treated as digital evidence by the Court. Any message which should not be sent to sister in law ordinarily but found to have been sent by your brother will go in favour of the husband of your brother's sister in law in seeking decree of divorce from his wife.

3. It depends how your his sister in law will contest the case through her lawyer. Generally divorce suit takes around 2 to 5 years to be disposed off.

Krishna Kishore Ganguly
Advocate, Kolkata
24040 Answers
659 Consultations

5.0 on 5.0

If you want we will contest the case at Delhi. Contact at adv.jaswantsinghkatariya at gmail.com for more information.

Jaswant Singh
Advocate, Gurugram
665 Answers
2 Consultations

4.8 on 5.0

Dear querist,

a) Yes. You can appear in Delhi by way of an advocate for which you will need to sign a vaklatnama authorising the said advocate to appear and defend on your behalf in the said case. For this, your counsel will have to file an exepmtion application seeking the leave of the court to grant you exemption from personal appearance.

b)Whatsapp messages can be treated as evidence by the court as SMS/WhatsApp messages are under the court of law for the documents are admissible under the Section 65 of Indian Evidence Act, 1872.

c) Contested Divorce cases usually take 2-3 years to dispose, but when the allegations of adultery are made, you time taken is usually more as compared to other, usually ranging from 4-5 years.

P.S.Please make sure you do appear (in person or through pleader) on the court date as non-appearance can causes future troubles to you.

Regards.

Siddharth Jain
Advocate, New Delhi
5446 Answers
61 Consultations

5.0 on 5.0

It is better you consult a lawyer and reply. WhatsApp chat is evidence provided it is proved in Court. Can't say the duration of the case.

Prashant Nayak
Advocate, Mumbai
18610 Answers
34 Consultations

4.6 on 5.0

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