Extramarital affair of husband and divorce with compensation
Sir my sister is working in a high position in bank. She was married 20 years ago and has two kids . Elder daughter who is 19 now and a son who is 12 . Her husband has a history of adultery and betrayal from past 10 years . His behaviour has been arrogant, hostile and jarring which has results in my sisters series of health issues- cardiac also , the recent one!!!He has had his turn with servants at home , the agencies had complained. and now is having an affair. She wants to apply for divorce due to domestic violance , alcoholic misbehaviour, mental harassment and loss of self esteem and dignity due this insulting, use of bad language and verbal further. To secure the future of her children , daughters marriage and son's remaining education. Though she doesn't have proof for his adultery but all of us , family people and children are witness to this for past 10 years . The point is , due to my ill health I don't know whether she will be able to contribute financially, she want yo apply for divorce with maintenance and book him in domestic violence. He denies his extramarital affair with married woman . But my sis has done her homework and ascertained that he has been having for one yera. Pls advise
Asked 2 years ago in Criminal Law from New Delhi, Delhi
The point is , due to my ill health I don't know whether she will be able to contribute financially, . Pls read as 'her ' ill health instead of 'my'
Asked 2 years ago
1. Yes, she can file suit fir divorce on these grounds and if the witnesses are ready to give testimony of his husband's misdeeds then she should not face any difficulty to get divorce.
2.Since your sister earns for herself she is not entitled to maintenance but her daughters can is entitled on whose behalf your sister can claim maintenance in the divorce suit.
3. Ask her to file another under Domestic Violence Act, 2005.
your sister may file a divorce case against him before family court under section 13(1)(ia) of Hindu Marriage Act-1955 along with an application u/s 24 of HMA for pendelite maintenance.
your sister may file a maintenance case u/s 125 of Cr.P.C. on behalf of the minor child before family court.
she may also file a domestic violence case against him and claim protection, right to residence, maintenance, child custody and compensation u/s 12,18,19,20,21, & 22 of protection of women from Domestic Violence Act-2005
Advocate, New Delhi
1. Your sister can apply for divorce on the basis of adultery committed by her husband.
2. In addition to divorce, she can also claim heavy compensation for the torture she has suffered all these years at his hands.
3. It is also the duty of her husband to support financially his children. To this end she can claim maintenance on their behalf from him.
4. If she is herself employed then she cannot get alimony.
These are sufficient grounds for seeking divorce from him. He is an alcohol addict, he abuses her physically as well as mentally (an act of cruelty), he does not takes care of his family members as a dutiful husband and father (maintenance for unmarried daughter till she gets married), affairs with a third person (adultery), all these can constitute as grounds for divorce. Besides, whether they are living together or living separately, if living separately from each other, since how long? if the separation is for more than two years, desertion and non-cohabitation can also be added as grounds for seeking dissolution of marriage by a decree of divorce.
For filing divorce case the court fee is barest minimum, say it should be within some hundreds only. The lawyer's fee will depend on the standing and expertise of he lawyer whom you would like to engage, who may demand his fees on that basis.
Please note that since being employed and earning a handsome salary, she is not eligible for seeking monthly maintenance from her husband.
Circumstantial evidence will be sufficient to prove adultery, if some persons admitted that her husband is in extra marital affair then burden shall be shift upon him to disprove it. Adultery and matrimonial cruelty constitutes valid ground for divorce. cruelty in order to suppress your sister's voice against extra marital affair is relevant evidence and it shall be admitted by the court and it is itself circumstantial evidence to prove extramarital affair.
don't go with domestic violence because it provides alternative remedy if party wants to remain in married life. if you want divorce then file complaint under section 498-A and also file petition for divorce under section 13 MHA.
1) Your sister must file a DV case first seeking interim reliefs such as residence either shared or separate, maintenance for children and herself and protection.
2) As she is well employed she won't succeed in getting maintenance for herself and the children have to be maintained only until they attain majority. He in however liable to contribute towards the expenses of the daughter's marriage etc.
3) Follow up the DV perron with a petition for divorce on grounds of cruelty. If she has no concrete proofs to establish adultery that allegation would not succeed. In her case there's ample evidence to price cruelty.
Alimony can be sought in the divorce petition.
4) Engage a lawyer locally who can help her. She will need to discuss fee with her lawyer.