• Adultery

Married for 8 years.Triplets 2 boys and a girl,6 years old. Husband is an impotent-erectile dysfunction(zero mobility,low count).Kids born though IVF treatment. Couple of years ago I met my old college mate and became close and eventually we slept together 3-4 times. He lives in another state. He is married and there was no serious relationship(no marriage plans) just truly sexual desires and my h found recently- one pic he holding me from my back and i was tipsy and another me kissing in his cheek. I know that is wrong. My marriage was always sexless,no respect and always taken for granted. Minus no sex,there was no life, just raising my triplets and surviving made me wanting this collmate. Husband has filed a case against me praying for divorce. I accepted for divorce but with mutual consent. Now he is asking for child custody and divorce. I cant give my kids to him,he is not a good father. His plan is to send kids to his village and his relatives would raise them. I cant do this to my kids, I need them in my life. I am not in relationship with the coll mate anymore. All I need is my kids.We are living in the same house,I take care of our(me and kids) expense. I was working earlier and was forced to quit suspecting that I have multiple affairs around the city I quit and became a stay at home mother and suddenly he filed this divorce case when I went to my parent place for a month
Kids are more attached to me and my parents. I want my kids and Can I demand for alimony?
Guidance pl.
Asked 4 years ago in Family Law
Religion: Hindu

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17 Answers

There is no evidence of adultery

2) you ate entitled to maintenance fir children

3) seek sole custody

4) welfare of children is paramount consideration

5) court would award you custody of children

6) don’t agree for divorce by mutual consent if husband insists on custody of children

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Generally, it is the mother who gets the custody of the child in case of Hindu parents. The court primarily considers the well being of the child and grants custody accordingly. The child’s best interest is given utmost importance, therefore if the contesting parent proves to be a better care-taker for the child, the court will grant them the custody. Emotional and financial factor is also considered by the court.

if you can prove that birth of children is not naturally through ivf treatment you gave birth in this scenario may be court can give you custody of childens .

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0

See since you are taking the divorce by mutual consent then in that case the custody of the child and the maintenance of the children are mutually decided by both of you the court shall not interfere in case of the mutual divorce.

Further if in case decree of divorce is not granted only first motion is completed ask him for custody or you shall withdraw consent from divorce. Further just based on photos it shall be very difficult for him to prove the adultery in court and it can take years till then you can ask maintenance and child custody.

Further in case divorce is granted and nothing is agreed on maintenance and alimony file an application under crpc 125 for maintenance and a child custody petition. Further looking at the age of children the children below age 5 generally reside with mother and further you contend welfare of children with you before court.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Dear Client,

Those Pics can be taken for single incident and reasoned as you were in old college mate meet and jsut a kissed, no actual sex happened so no actual adultery committed.

Even though you can file for diovrce/judicial separation/no divorce - ground impotency of husband same shall be proved by erectile dysfunction(zero mobility,low count report and pregnancy by IVF.

You are entitle to alimony for you and kids expanses. Residence right etc.

Custody of child rest with mother so don`t worry.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Do not agree for MCD if he's not letting you take the custody of the kids.

Let him file a contested divorce against you, this will take a long time to conclude and it is almost impossible that he will be able to make out a case of adultery against you and establish that as a ground of divorce.

Kids must seek maintenance from your father.

If he's unable to make out a case of adultery for divorce, you will be entitled to alimony.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

Merely because you had an extra marital affair is no ground to deny you custody of children

2) take the plea that husband is impotent and unable to consummate the marriage

3) inform your husband if he posts your pictures you will let the whole world know that he is impotent

4) further you woukd file case against him for transmitting your pictures under section 67A of IT act

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Child Custody Under Hindu Law. Under the Hindu Minority and Guardianship Act, 1956, the custody of all children below the age of 5 years is given to the mother. The custody of boys and unmarried daughters is given to the father

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0

Mam, in case he put these pictures on any of the platform he can be prosecuted for same under IT act, further the court shall not decide the child custody based on such pictures solely as for custody the paramount view of the court is for the welfare of the children and the custody of the child below 5 is generally to mother.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Yes you can take not only alimony but children will be with mother till they are adults and can choose their own paths. If your husband acts smart file maintenance under 125 crpc

Aveek Bose
Advocate, Kolkata
1222 Answers
9 Consultations

4.7 on 5.0

Since you are not employed anymore and you have proofs for having quit the job for taking care of the kids, you can very well file a maintenance petition claiming maintenance for you and the children.

You can file a petition under section 125 cr.p.c. for maintenance;

you can file a DV case also against him seeking protection, return of your stridhan, maintenance for all four of you, compensation for failed married life and you can blame him for having cheated being an impotent and suppressed the fact which was material to marriage.

The proof is the children born through IVF mode.

If you file multiple cases against him it may pressurise him to keep away from his demand for the child custody.

Discuss at length with your advocate on this before taking any legal steps

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

If he is indulging in any such act which may defame your name and fame or reputation in the society, you may file a defamation case both in criminal law and civil law for punishment and compensation respectively.

Besides, you may clearly state your apprehensions that he may live the the children in his village which may endanger their career and health besides other aspects i.e., good education, good care etc. if the children are given to his custody.

The fact of impotency may also be cited in your pleadings to defend your interests.

At any costs do not ever budge to any kind of pressure and fight it out strongly.

He cannot do anything to harm you with the photographs in his possession because from your contents it do not appear to be a photograph of compromising position.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

Firstly, yes it is true that if the mother is in adultery then court may not grant the custody to her.

Secondly, but, it all depends upon the facts and circumstances of each case.

Thirdly, as you never has sex in your life then you can say that you were carried away for this reason as sex is the prime news of a marriage to subsist.

Fourthly, if he does that publicallly then he may have to face criminal cases against him for sure.

Fifthly, usually mother is the best guardian for children if she has all means to bring them up, if not then may be maintenance would also be allowed y the court of law for them by husband.

You

Have done kothing wrong infact you were there with him despite of his illness.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

Hello,

The welfare of the child is of paramount importance while deciding the custody of the child.

if you are able to prove before the court that you will take care of the welfare then the custody will be given to you

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

He can though prove the adultery and say that you are not fit for upbringing the child.

regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1. Sans an agreement on the issue of child custody there can be no mutual consent divorce.

2. You are free to unilaterally file a petition for declaration of guardianship and child custody under the Guardians and Wards Act to get the custody. Ordinarily, the courts lean in favour of mother when it comes to the custody of a child, but this is not a case iron rule which cannot be breached. The sole consideration for the court in a child custody dispute it to secure the welfare of child. Custody has to be awarded to a parent who is more competent to secure and promote the welfare of child.

3. The adultery committed by you does not by itself render you disqualified from getting the custody of child, but if your husband can prove that due to your adultery you have been negligent in promoting the welfare of child then he qualifies to get the custody.

4. Even if he is proved as impotent he suffers no disqualification to get custody.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

This is matter of blackmail, even can file police complain so that at least these pics can be recovered from him.

Next, as i said, mere single incident pics can be excused with any reason and cannot be hold as repetitive adulterous and his infertility will bring him more defame if made public - this can be your counter threat.

Custody of kids shall rest with mother, his infertility is his deficiency, no reason to benefit him.

He can get only visitation right.

And if he did any act which is infringement of privacy - than right of case defamation.sec 499 IPC.

And for threat to make your pics public and attempt - you can file FIR u/s 506 and 511 IPC.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Hi,

You may bargain on the child custody and he would pay for it.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

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