• Divorce, child custody, adultery

Wife has committed adultery.
The evidence is in form of Photos and Videos.

living separately since Discovery day Feb 2016
wife signed an agreement for mutual divorce.
Girl of 9 years child is with Me (father)
Wife left home in Nov 2017

Wife took away the child in Feb 2017 from school., the school helped in getting the child back as I had informed about the condition that Mother is no more staying with us and I was the one dropping and picking up the child.

On Feb 10th 2017, She filed a Kidnap case, an FIR was done on sec 498A,323, Chargesheet done. still to be served summons from the court. 
Daughter was sent with me. 

On March 17, 2017, she filed for Divorce, I was served the notice and I have filed my reply. Along with she filed IA for child custody and Maintenance.

Have replied to the petitions, submitting the proofs of adultery(photos and Videos)

1. IA for visitation was allowed and she got visitation rights on 1st and 4th Sat each month. She has file further(11) IA for custody during various holidays. which I have honored.

2. IA for maintenance was Dismissed in April 2018, reasons 1., adultery, 2. The child is with Father, 3. She is earning.
she has not appealed the order.

3. Last week she has filed a fresh case under GAW act for custody.

My Questions are:
1. How long will it take for the Court to grant the divorce, now that the IA 3 has been dismissed with a note of adultery?
2. Would she be getting the custody even when she has been adulterous? 

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I have filed a case under sec 497 against the paramour., with the submitting the proofs of adultery(photos and Videos).
cognizance has been taken and Court has ordered the Police to bring the adulterer. Adulterer did not accept the Summons and thus the Court has released a Non-Bailable Warrant. he seems to have gone into hiding.

What would be next steps from the court side?
Asked 4 years ago in Family Law
Religion: Hindu

2 answers received in 10 minutes.

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9 Answers

1. Sir since interim applications are being heard until now the court will record the evidence and statements and further since your wife and you both want divorce in thar case it shall grant divorce after recording evidence and further arguments it can take further time of year around.

2. She being in adultery does not barred her from child custody there is such rulings from court though you can contest that this will effect child welfare and further the custody of the child and habitual residence is with you court shall only grant visitation to her for child welfare.

3.if after warrant also he is not appearing court shall declare him absconder and can order to attach his property an application for same has to be given in the court to declare him absconder and attach property.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1) contested divorce cases take 5 years to be disposed of

2) welfare of child is paramount consideration

3) court may award wife custody as daughter is only 9 years of age

4) if accused has been issued NBW and he does not attend court then proclamation would be issued against him , his property can be attached

Ajay Sethi
Advocate, Mumbai
87976 Answers
6207 Consultations

5.0 on 5.0

Dear Client,

IF you are also willing for divorce ans so the wife, than stop contesting divorce case except divorce shall be grant on the ground of adultery. Case will decide in few months.

Wish of child also taken into account while ordering custody and for adulterous conduct, custody may be refused in the welfare of child.

Non-Bailable Warrant are issued, now it`s up to police to find him, if not find than court will declared him absconder and attachment of his property.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. The time to be taken by the Court for deciding on a matter can not be foretold in any way since it depends on many factors. However, ordinarily, it should take around 2 years to get the case disposed of, if pursued properly.

2. Ordinarily, custody of child is not awarded to the wife if her adulterous activities are proved.

3. You can lodge a police complaint against the other person bringing the charge of adultery against him which might help you in claiming permanent custody of your child.

Krishna Kishore Ganguly
Advocate, Kolkata
26614 Answers
726 Consultations

5.0 on 5.0

The court will dismiss petition of child custody. No maintenance for her and next case will for proclamation of paramour.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Dear Sir

My answers are as follows:

1. How long will it take for the Court to grant the divorce, now that the IA 3 has been dismissed with a note of adultery?

Ans: It will be disposed soon after recording your evide3nce and evidence of your wife. It may taken 30-90 days, depending upon court adjournments space.

2. Would she be getting the custody even when she has been adulterous?

Ans: under no circumstances custody will be given to her. Welfare of the child is paramount. See below judgment.

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What would be next steps from the court side?

Ans: If you provide all the particulars the court will pass divorce without alimony as she is leading adulterous life.

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Landmark Judgement pronounced by SC dealing with guardianship & custodial and visitation rights to parents and children stuck in matrimonial disputes

In a remarkable judgment dealing with interim custody of child suffering in parent’s matrimonial disputes, visitation rights and guardianship, a 2 judge bench of Supreme Court laid down various propositions of law while awarding the interim custody till final disposal by the trial court to the mother. The bench speaking through Justice Vikramjit Sen, lays down very sharp observations and examines various definitions of a ‘guardian’, ‘visitation rights’ and tests the issue from the angle of provisions of Hindu Minority & Guardianship Act, 1956 and Guardian & Wards Act, 1890.In a custody battle between estranged parents, a minor child, who has not completed five years of age, shall be allowed to remain with the mother, the Supreme Court has ruled saying that in such cases child should not treated as a "chattel". The court said that under Hindu Minority and Guardianship (HMG) Act, a father can be guardian of the property of the minor child but not the guardian of his person if the child is less than five years old.

The Court said that there can be no cavil that when a Court is confronted by conflicting claims of custody there are no rights of the parents which have to be enforced; the child is not a chattel or a ball that is bounced to and fro the parents. It is only the child's welfare which is the focal point for consideration. Parliament rightly thinks that the custody of a child less than five years of age should ordinarily be with the mother and this expectation can be deviated from only for strong reasons.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

1. The disposal of divorce case will depend on various factors. It cannot be predicted.

2. You have to fight it out strongly against her claim for child custody on the basis of the substantial evidences for her adulterous acts. If this is established then the court may deny her the custody considering the welfare of the child as paramount importance.

The court may be requested to pass an order to declare him as a proclaimed offender and also to issue a look out circular since he has gone underground after the NBW has been issued against him.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

Police have to issue look out notices for the person who is missing and police also have the right to issue news paper advertisements to trace accused who is missing.

if you have the passport details of the accused, then the passport can be impounded.

also the police and court have the power to attach the properties of accused who is missing.

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0

1. Divorce Petitions take on an average 3 years to be decided but it depends on the pendency of cases in the court concerned.

2. Adultery, per se, is not a disqualification to a mother getting the custody of her child. A woman who is an adulterous wife and has multiple affairs may nonetheless be a very doting mother.

3. If police is unable to execute the NBW then take out contempt of court proceedings against the officer who has been entrusted the duty of executing the NBW.

Ashish Davessar
Advocate, Jaipur
30761 Answers
971 Consultations

5.0 on 5.0

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