• My wife has filed 13(1)(1a) on me despite she being into adultery

Hi sir,
My wife has filed divorce under cruelty. I have appeared on first hearing and asked mediation (as been told by my lawyer) 2 sessions happened so far. She demanded 25 lakhs being a employee and getting 1.6 lakhs pm. I need my daughter who is 6.2 years now and has been not treated well by mother in-law and wife. Have one more session on 26 Feb. I don't want my child to be grown up with such kind of women. Also I lost my job recently and the property I have was 50-50 of my mom and dad as my dad expired his share also came to my mom. Now to prove that I can take care of my child what I have to do
Asked 5 years ago in Family Law
Religion: Hindu

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22 Answers

Wife guilty of adultery is not entitled to any alimony 

 

2) you have to prove wife that had a extra marital affair 

 

3) file petition for divorce and make her lover co respondent in divorce case 

 

4) no need to pay her Rs 25 lakhs demanded by her

 

5) seek joint custody of your daughter 

Ajay Sethi
Advocate, Mumbai
94733 Answers
7539 Consultations

5.0 on 5.0

See you need to file for custody of the child. And contest on ground of welfare of child and you can take better care of the child then her she is cruel to the child and not taking care properly.

Further you can in mediation keep the term that if she gives you child custody you can agree for mutual divorce. If she agrees to this then it would be better you don't have to run in courts. Further she is earning well and can maintain herself so not entitled to maintennace.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

1) You can file for child custody and provide all detail how you are going to take care of her in future as you don't have job as well.

 

2) Plus if you don't want to give her alimony and one time lump sum amount what she has demanded of 25 lakhs, so you can file adultery case against her and plus she has left the matrimonial home without informing you and you had not force her to go out of home.

Ganesh Kadam
Advocate, Pune
12930 Answers
255 Consultations

4.9 on 5.0

You can claim custody of the child under Hindu Minority Act and guardianship act 1956.As per the said Act custody of a child up to 6 years stays with mother however after examining the paramount welfare interest of the child custody of the child can be given to father

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

1. To counter her demand for money file a petition for alimony for yourself . You being the jobless at present and she being well placed in life is liable to maintain you.

2. Your lack of income is no demerit in claiming the custody or visitation rights of the child.

3. Wife has no share in the property of husband and she being in better financial position is not entitled to maintenance nor residence rights for alternative accommodation. 

Devajyoti Barman
Advocate, Kolkata
22825 Answers
488 Consultations

5.0 on 5.0

Dear Sir,

You are entitled for child custody as per following judgment of SC.

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
6136 Answers
487 Consultations

4.8 on 5.0

1. Adultery of a mother is not a disqualification, per se, to her getting the custody of her child.

2. You are free to file a petition under the Guardians and Wards Act to seek the custody of your child. The least you will get is visitation rights. Since you are unemployed you may not get the custody.

3. If she seeks maintenance then in order to repel her claim you will have to prove that she is drawing the salary that you have mentioned. 

 

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

Hello,

Welfare of the child is of paramount importance while taking the custody of the child. You need to show the circumstances to the court that if custody remains with wife then that will prejudice the welfare of the child. 

Do not give the alimony if you have strict prove that she was living an adulterous life  

Regards 

Anilesh Tewari
Advocate, New Delhi
18078 Answers
377 Consultations

5.0 on 5.0

You must highlight her misconduct for your daughter.

Deepankar Kataria
Advocate, Delhi
194 Answers

5.0 on 5.0

First and foremost take up a job, even if it a less-paying one.  Secondly, collect proof of your wife's adultery and file a case under the Guardians & Wards Act or the Hindu Minority & Guardianship Act  for custody of your daughter on the ground that your wife is an unchaste woman and an unfit mother.  Using the same proof, also strongly contest the Divorce Petition filed by her on the ground that she cannot take advantage of her own wrong-doing. In the meanwhile, do continue to make some payments for your daughter's day-to-day expenses to show your bonafides.  

I believe that if you are successful in collecting solid and concrete proof of her adultery, half your battle will be won.  

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

The wife has a good income and therefore she is entitled to nothing. Tell this on the next date. Moreover you have to have a stable job and income in order to ask for custody. She will also have to contribute to the expenses. Expose her lies in the court if you have proof and explain this to the court that you too want divorce  because she is living in adultery.

Regards 

Rahul Mishra
Advocate, Lucknow
14088 Answers
65 Consultations

5.0 on 5.0

See if the plot is in your name then she has no right in the same.

Further for adultery other then chat you need to prove physical relationship and contact and for that hotel bills or they meeting somewhere else has to be proven before the court.

Yes you can put a separate child custody case along that in divorce case also your can seek a relief for child custody by filing an application.

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

1)One sided conversation evidence not enough to prove. 

2) after obtaining ex parte divorce you can file for custody of child..

3)After divorce, she is entitled to nothing. She may get permanent alimony while seeking divorce and maintenance of a fixed sum if she is not earning herself till she re-marries.

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

They Cannot have unreasonable demands like these. In case you want to proceed ahead you can simply tell the court that you too want divorce due to incompatibility and irreconcilable differences with the wife. That would be sufficient. 

Also the evidence should be such that there should be pica videos etc. Or a conversation with the paramour.

Regards 

Rahul Mishra
Advocate, Lucknow
14088 Answers
65 Consultations

5.0 on 5.0

you can rely upon audio recordings between you and your wife 

 

2) prepare transcripts of conversation and enclose it in your reply 

 

3) you should file detailed reply in divorce case filed by wife deny allegations made by her 

 

4) seek joint custody of your child 

 

5) you don’t have to sell land standing in your name 

Ajay Sethi
Advocate, Mumbai
94733 Answers
7539 Consultations

5.0 on 5.0

Without hearing the conversation, it is difficult to judge whether the same would suffice or not. However, to be on the safer side, it is important that you gather more irrefutable proof of your wife's adultery like photos in a compromising position, hotel entries, telephone bills etc. 

It is quite possible that your wife may have sought to be appointed as the Guardian of the child while applying for Divorce.  If the matter goes ex-parte, she may be appointed as the Guardian.  Thereafter you may approach the Court for the custody of the child only on the ground of changed circumstances i.e. to say that the child is not happy or her studies are being affected etc.  It would be on a limited scope. 

If the plot is on your individual name, no one can force you to sell it, be assured.  

Radhika Mehta
Advocate, Mumbai
484 Answers
4 Consultations

5.0 on 5.0

It cant can't be answered without persusing the conversation

If u won't appear the case court will proceed exparte against you.

Depends upon the merits in the case

No.

Deepankar Kataria
Advocate, Delhi
194 Answers

5.0 on 5.0

Dear Sir,

You must establish the adultery in regular trial. Court will analyze and appreciate such evidence which with you. Yes you can put child custody case later. No, but it will be attached if ex parte decree is passed with big alimony amount.

Kishan Dutt Kalaskar
Advocate, Bangalore
6136 Answers
487 Consultations

4.8 on 5.0

You can produce the evidence in court proving her adultery. The court will not grant maintenance to girl practicing adultery

Prashant Nayak
Advocate, Mumbai
31954 Answers
179 Consultations

4.1 on 5.0

You have to rely upon your own source i.e.,your financial background and also your relative sources to take care of the child during your absence.

You can deny her demand for huge money.

Discuss.

You. can discuss with your lawyer at length on all such further issues.

T Kalaiselvan
Advocate, Vellore
84934 Answers
2197 Consultations

5.0 on 5.0

There's no imminent or immediate danger to your property.

You can add in your pleadings about her adultery.

You contest her case as well as file a separate case for child custody.

T Kalaiselvan
Advocate, Vellore
84934 Answers
2197 Consultations

5.0 on 5.0

Yes this is enough 

selling off will not solve the issue that you are facing. 

Regards 

Anilesh Tewari
Advocate, New Delhi
18078 Answers
377 Consultations

5.0 on 5.0

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