• Regarding divorce

Sir my in-laws and husband tortured me mentally and physically and expell me out 9 years before. After that my parents w8th some renowned persons talked to them for the settlement of the issues. Now I havegot photographs from his WhatsApp profile pic with a lady and child but he is saying he is in relation with that lady from the last 2 years and that kid is not his. Kindly guide me if I can file divorce on the basis of extra marital affairs proof only those photographs and will I be able to get any alimony.
Asked 1 year ago in Family Law from Panchkula, Haryana
Religion: Hindu
1) contact a detective agency and gtaher evidence of his remarriage . 

2) check birth certificate of the child does it reflect your husband name as father 

3) if child is going to school whether in admission form name of father is your husband 

4) if so file case of bigamy against your husband 

5) also file complaint under domestic violence act and seek maintenance , right to stay in matrimonial home and other reliefs 

6) you can also file for divorce on grounds of adultery and mental cruelty and seek alimony 
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
Since you are staying separately for nine years and wish to get a divorce send him a legal notice asking for divorce through mutual consent. If he is in a relationship he would give you divorce easily and this method is fastest. In six months time you will be divorced. 

You can ask him for alimony and if he agrees well and good or else file a contested divorce petition on ground of adultery. (You have photographs as proofs) under Hindu Marriage Act 1955. 


Regds, 

Adv. Payal 
Payal Arora
Advocate, Pune
331 Answers
7 Consultations
4.1 on 5.0
you have to make application to court to direct your husband to submit  for DNA test,
especially where the parentage of a child is in controversy 
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
IN THE HIGH COURT OF DELHI AT NEW DELHI
12.05.2008
Present : Mr.K.P. Mavi for the petitioners
Mr. Pawan Sharma/ Ms. Fizani Hussain, APP for the State.
Mr. Kapil Jain for the respondent
Coram: VIPIN SANGHI, J
Crl.M.C.No.1815/2007
This petition under Article 227 of the Constitution of India challenges the order dated
4.5.2007 passed by the learned M.M. on the application of the petitioner praying for the
conduct of DNA test in respect of respondent No.3 Master Ansh who according to the
petitioner, is not his biological son. Respondent No.1 is the wife of the petitioner.
Respondent No.2, admittedly, is the son of respondent No.1, from an earlier marriage.
RespondentNo.1 had preferred an application for seeking maintenance under Section
125Cr.P.C. In those proceedings the petitioner who is the husband ofrespondentNo.1,
preferred the aforesaid application seeking the conduct of DNA test in respect of respondent
No.3 to determine his parentage since, according to him, respondent No.3 is not his
biological child. That application has been rejected by the learned Metropolitan Magistrate
by the impugned order dated4.5.2007.The learned Magistrate has rejected the application by
holding that the DNA test will not have any effect on the merits of the present petition as
the present petition is under Section 125 Cr.P.C. and the provisions of Section 125Cr.P.C.
do not make any difference between legitimate and illegitimate children in order to
maintenance.
The submission of the petitioner is that the learned Magistrate has not appreciated the fact
that respondent No.3 is not alleged to be the legitimate child of the petitioner husband. The
claim of the husband is thatrespondentNo.3 is not his biological child and that he was
conceived by respondent No.1in adultery. He also refers to the order-dated 13.2.2007
wherein, at one stage, counsel for the respondent had recorded his no objection to the prayer
made inthe application of the petitioner. Even the subsequent statement made by learned
counsel for respondent No.1 herein, only pertains to the DNA test that the petitioner had
sought in respect of claimant No.2, who admittedly, is not the biological child of the
petitioner.
Counsel for the petitioner also relies on a decision of this Court in Kanchan Bedi and Anr.
vs. Gurpreet Singh Bedi 2003(67) DRJ 297. In that decision this Court had considered
various earlier decisions on the point and in paragraph 8 thus concluded there is no
impediment or violation of rights in directing persons to submit themselves for DNA test,
especially where the parentage of a child is in controversy for the grant of maintenance.
Submission of learned counsel for the respondent is that a perusal of the memo of parties as
filed by the petitioner shows that he claims himself to be the father of respondent No.3
Master Ansh. He further submits that in various other proceedings the petitioner has not
disowned his parentage qua respondent No.3. 
In my view these submissions are of no avail. So far as the memo of parties is concerned the
petitioner has simply adopted the description of the parties as is contained in the application
filed by respondent Under Section 125Cr.P.C. The same is not determinative of the fact
whether the petitioner is the biological father of respondent No.3 or not. The parentage of
respondent No.3can only be determined by the conduct of DNA test. The liability to pay
maintenance under Section 125 Cr.P.C. can be avoided qua respondent No.3 only if it is
established that he is not the biological son of the petitioner. Considering the aforesaid, I am
of the view that the learned Magistrate wrongly rejected the application filed by the
petitioner praying for the conduct of DNA test of respondent No.3 Master Ansh.
Accordingly, I set aside the impugned order dated 4.5.2007 passed by the learned Magistrate
and further direct that DNA test of respondentNo.3 be conducted at All India Institute of
Medical Science, New Delhi. For the drawing of samples for the test, the respondents are
directed to ensure the presence of respondent No.3 before the Medical Superintendent,
AIIMS on22.05.2008 at 11 a.m.
Petition stands disposed of.
Dasti.
May 12, 2008 VIPIN SANGHI, J 
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
1. Since you need divorce file a suit for this. Take a plea of extra martial affair and tortures.
2. Additionally you can file criminal case for such tortures and infidelity as well.
3. File case under PWDV Act as well seeking maintenance.
Devajyoti Barman
Advocate, Kolkata
5192 Answers
54 Consultations
4.9 on 5.0
1. What is he seen doing with this lady and child in the photographs in your possession? Unless the photographs show him getting intimate with the lady you cannot attribute adultery to him. So better avail the services of a detective agency to collect cogent proof of his infidelity before you go to court.

2. The claim of alimony is a substantive claim which does not have any legal nexus with divorce. You can claim maintenance from your husband even if you do not have sufficient evidence to prove his adultery. It is the duty of your husband to support you financially. He can contest your claim if you are earning on your own.

3. You can also claim heavy compensation from your husband and in-laws for the torture which you suffered at their hands.
Ashish Davessar
Advocate, Jaipur
18096 Answers
448 Consultations
5.0 on 5.0
Hi, as per Hindu Law hindu can't marry a second wife during the subsistence of first marriage and your husband is not taken divorce from you.

2. You can file a complaint before the jurisdictional police station that your husband has committed an offence of bigamy and  he is living in adultery so police will investigate the matter so based on the investigation you can file a petition for divorce. 
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
The long separation between you both itself will be a sufficient and strong ground for divorce and the reason is desertion,non-cohabitation for more than two years. The adultery has to be proved for including it as a ground fr divorce with some documentary proofs, whatsapp message cannot be considered as a primary evidence. 
What do you mean by DNA test?, whose DNA test you want to take and what is that you want to prove by that.  Even if it is proved it is to be his child, what is the relief you are going to have on it.?
Dont be misguided with misinformed knowledge, better concentrate on your own case.
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
The police cannot force you to part with the items given to you as gift by them during or after the marriage.  If the police is not cooperating to recover the stridhan articles lying with them, you may file a petition before the court under section 406 IPC seeking direction to police to recover and hand over the items belonging to you which has been mentioned in the list annexed to your petition. 
The police atrocity is known hence you may even approach the higher police official of the district seeking its intervention and direction to the local police to get you the relief quoting that as per law whatever items gifted to you either by your parents or parents in laws or your husband are termed as stridhan and will belong absolutely to you alone, they cannot reclaim it. 
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
1) the gold given to you at time of marriage constitutes your streedhan . 

2) you are not bound to return the said gold items 
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
The gold which they gave you constitutes your streedhan which you are not obligated to return. If they do not return your items then prosecute the case in the court.
Ashish Davessar
Advocate, Jaipur
18096 Answers
448 Consultations
5.0 on 5.0
if you need a divorce then file a case for divorce under the ground desertion and cruelty . You can also seek maintenance from your husband by filing another  petition for getting the maintenance. Proving the adulatory is difficult and the litigation take much time. Realise that retakes are not available in life.The last 9 years you had lost the happy life ,think the next future years want to live in peace of life. 
Ajay N S
Advocate, Ernakulam
1915 Answers
19 Consultations
5.0 on 5.0
No, they cannot claim the jewellery  they gave you that accounts for streedhan which is your property. At the time of divorce you can claim your jewellery from them. Make a list of your jewellery in their possession. Even if police is with them when the matter will go to court even police can't do anything. So relax. 

Regds, 

Adv. Payal
Payal Arora
Advocate, Pune
331 Answers
7 Consultations
4.1 on 5.0

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