• Wife adultery, i need custody of my 3 year old daughter.

Hi,
I am a civil contractor, I married my wife(relative) in 2014 as per muslim customs, i had no issues with my wife except usual family quarells now, but from the past one year i had doubts on her behavior. Couple of months back i checked her mobile phone and mobile bill summary, i found that she s been having an affair with a guy from indian navy, i have lot of audio recordings which i got from her mobile, most of the audios are full of sex chat, also i was able to collect sex chat from her watsapp. Now i would like to have custody of my child, divorce and action against my wife and the guy with whos she s having an affair. 
Moreover my wife wants to stay with her mother in their home, even my wife mother s having affair with some guy, i have same watsapp audios and call recordings, which i was able to collect from her mobile through my wife s father who is aware of this and willing to support me with child custody.

Please advise.
Asked 4 years ago in Family Law
Religion: Muslim

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11 Answers

Sir firstly file a criminal complaint with police of adultery under section 497 IPC against the person in Indian Navy your wife is having affair with.

Secondly as prescribed under the Muslim law give a divorce notice to wife and divorce her as per prevailing customs in Muslim law. and file for declaration of same in the court.

File a case of child custody bring all the evidence on record on the character of your wife and seek custody of child citing that it will hamper the welfare of the child if it is given to her so pray for custody from court.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Firstly, you should file a criminal complaint against the person who is having illicit relationship with your wife under section 497 of the Indian Penal Code which talks about adultery.

Your wife cannot be charged for adultery as women is considered as a victim in such cases as per law and no criminal case can be filed against her for the commission of adultery.

Siddharth Jain
Advocate, New Delhi
5925 Answers
101 Consultations

5.0 on 5.0

See wife can be denied of maintenance first if she is qualified and earning second since she is the reason for all this so based on this the maintenance can be contested.

No in India women cannot be prosecuted for adultery.

yes they will be the taps and sexual chat along with that you needing circumstantial evidence to prove that they were having the actual physical relationship then the case shall succeed. the man shall be prosecuted for adultery,

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

You can divorce your wife as per Muslim personal law

2) file application in family court seeking custody of your child

3) however please note that as per mus personal law toll agr of puberty custody is given to mother

4) welfare of child is paramount consideration

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

Wife guilty of adultery is not entitled to any maintenance

2) there are recent judgments wherein courts have held that you cannot rely upon audio recording of wife with another guy as it would be infringement of her privacy

Ajay Sethi
Advocate, Mumbai
87899 Answers
6207 Consultations

5.0 on 5.0

1. Adultery itself does not render a mother ineligible to get the custody of child as a woman may be a bad wife but she can nonetheless be a good mother.

2. You are free to divorce your wife.

3. On the basis of electronic evidence in your possession you can file a criminal complaint for adultery against the paramour of your wife. Adultery on conviction carries an imprisonment of up to 5 years.

4. To get the custody of your child you will have to file a petition under Guardians and Wards Act against her and prove that you are more competent than mother to secure the welfare of child which is the predominant consideration for the court.

5. A wife who is in adultery has no right to claim maintenance. If she seeks maintenance then you can contest her claim fittingly.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

1. Well, after the ban of triple talaq it is quite difficult to get divorce from wife though you can try to popularly accepted curse of triple talaq in presence of your wife on three separate occasions.

2. Well, the chats are not enough proof to avoid maintenance if she is unemployed.

3. For custody of the children you will have to keep them physically with you in which event your wife wil have to file suit for custody. Court prefers stats quo and hence if you keep their physical custody with you your wife will find hard time to get them back.

4. You can file case under section 497 IPC against her paramour.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Adultery if proved is punishable but at the same time the liability of you payment of maintenance does not go till the time you are granted divorce from the wife you have to apply for the custody of the child and you have to prove that you will be able to take good care and you are the natural Gardian after 5 years of age of the child.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

You can file a petition for custody of your child. You can have a custody with mutual consent if you want.

Prashant Nayak
Advocate, Mumbai
27232 Answers
88 Consultations

4.4 on 5.0

You can file a child custody case against her on the same grounds that she is having extra marital affairs with some other guy.

However the audio recordings and the whatsapp chats are not strong evidence, in fact the court may not consider this as evidence also.

However you can express them in your pleadings of the petition seeking child custody.

You cannot mention her mother's adultery in this

.

If you have strong evidence to prove adultery then you can lodge a criminal complaint against her paramour.

The whatsapp and audio chats are not evidence to prove their act of adultery.

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

Can my wife claim for her monetary maintenance if the child custody is given to me after divorce ?

If she is unemployed and unable to sustain her expenses, she may file maintenancecase.

Is she punishable under law ?

No, her paramour only can be punished under section 497 IPC.

Last question, will audio tapes with sexual content and watsapp messages with sexual contents be eligible in court to prove her infidelity ? Has such cases been succesful previously ?

They are no sufficient to prove ther act of adlutery

T Kalaiselvan
Advocate, Vellore
78057 Answers
1543 Consultations

5.0 on 5.0

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