• Preparing for divorce & child custody

A brief. Me and my wife are living together for the last 6 months. I have come to know that there is some other man in her life (phone bills). She does not want to come back to me nor call me.
Some how I have found her dairies in which she has written that - 
a) There are two fine men in my life (one me and the other guy).  I am so insecure in my life that I dont want to lose any one of them over other. And to keep my self secure I have allowed them to touch me and again and again I have gained sympathy as love and have not let them go away from me.
b) I have lied so much to my husband, my mother-in-law, my sister-in-law that now I feel that I am lying to myself but I forgive myself for it.
c) For me sympathy is love and I all the time became sympathetic and gained sympathy as love. I have also wanted more sympathy as love outside and have always searched for it. 
d) I also want to be in demand and always want the other person to praise me for my looks.
e) Can she say that this is not her dairy and I am trying to frame her.

There are lots of other material like this in her dairy. I want to know - 

a) Does her hand written material (like above and other) can put her to fault in breaking the marriage.
b) Can it be helpful to me to get divorce
c) Does this show that she was involve with some other men
d) Does this reflect anything of her character
e) Can this help me in taking full time custody of my daughter

Waiting for your replies.
Asked 1 year ago in Family Law from New Delhi, Delhi
Religion: Hindu
1) if it is in your wife hand writing your wife cannot take the plea that you are framing her 

2) you can file for divorce on grounds of mental cruelty and adultery 

3) having an extra marital affair amounts to cruelty 

4) you can seek joint custody of your child . 
Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
5.0 on 5.0
as per your question , yes you can show the proof of theses document in the court to get divorce that she having extra marital affair with other men . 

regarding child custody aged is not mention , if she is minor the custody goes to her mother but you have to show the full proof that she will be spoiled if  the custody  is given to mother because her conduct and character is not good that will effect the growth of the child and mentally she will be imbalance



 
Mir Mansoor Ali
Advocate, Hyderabad
57 Answers
4 Consultations
Not rated
1. Yes the evidence is enough to get divorce.
2. If she denies her diary then hand writing expert may be appointed.
3. However this is not enough to get custody of child.
Devajyoti Barman
Advocate, Kolkata
5131 Answers
54 Consultations
4.9 on 5.0
1. She will refuse to own the diary and be the author of what has been written therein. This diary can be used only as a corroborative evidence. If you rely on it as a solitary evidence you will not travel far in the court.

2. It may help you, subject to the finding of the civil court, to get the custody of your daughter.
Ashish Davessar
Advocate, Jaipur
18049 Answers
445 Consultations
5.0 on 5.0
This is a fit case for seeking divorce on the grounds of adultery. 
Either party to the marriage may present a petition for divorce under cl. (i) of sub-sec. (1) of s. 13, on the ground of adultery of the respondent.
It must be shown that the period during, which the spouse was living an adulterous life was so related from the point of proximity of time, to the filing of the petition that it could be reasonably inferred that the petitioner had a fair ground to believe that, when the petition was filed, the respondent was living in adultery. This expression implies that a single lapse from virtue even if true will not suffice, and it must be shown that the respondent was actually living in adultery with someone else at the time of the application. Living in adultery is different from failing to lead a chaste life. 
After the commencement of the marriage Laws (Amendment) Act 1976, even a single act of voluntary, sexual act by either party to the marriage with any person other than his or her spouse will constitute ground for divorce for the other spouse.
n case of adultery direct proof is difficult to get and one has to rely for proof thereof on circumstantial evidence and the same may be sufficiently proved from which adultery maybe inferred. The burden of proving adultery in a matrimonial case is on the person who makes the allegation. The standard of proof in "proceedings under the Act being initially of a civil nature is by preponderance of, probabilities and not by proving it beyond reasonable doubt.
There must be circumstances amounting to proof that opportunities could be used, such as the association of the parties was so clear that adultery might reasonably be assumed as the result of an opportunity for its occurrence.


This situation will help you to claim custody of your child.
T Kalaiselvan
Advocate, Vellore
13902 Answers
127 Consultations
5.0 on 5.0
1) yes it is the same 

2) you can file for divorce on grounds of adultery 

3) mere mobile bills are not sufficient to prove adultery 

4) if wife refusing to agree fir divorce you have to prove allegations made in petition to obtain divorce on grounds of adultery or mental cruelty 

5) wife who has committed adultery is not entitled to maintenance 

6) wife won't get alimony if she is guilty of adultery 

7) also if she is highly qualified and worked in past she won't get maintenance 

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

Ajay Sethi
Advocate, Mumbai
23079 Answers
1212 Consultations
5.0 on 5.0
a. It can not be conclusively stated that the said writing of your wife will put her at fault for breaking your marriage,

b.  Yes, you can use it as her admission of having extra marital physical relationship after her marriage,

c.  Her getting involved with other man does not give you any advantage to seek divorce. You shall have to establish that she had physical relationship with the other guy after marrying you,

d. It does not stamp her as having bad character,

e. Yes. If her extra marital physical relationship with the other guy is established, it will help you in getting custody of your child.
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
226 Consultations
5.0 on 5.0
a. Yes and having extra marital physical relationship is an essential component  in such case,

b. It also falls under cruelty and divorce suit on the ground of cruelty can be filed,

c. No. Just talking to some one or meeting him does not constitute extra marital affair. Physical relationship is an essential ingredient in such case,

d. You shall have to file a divorce suit on the ground of cruelty as advised above with all evidence in support of your said allegation,

e. Yes, you shall have to maintain them by sending maintenance till the divorce suit is disposed of.

f. If she is highly qualified and capable of earning to maintain herself, then you may be relived of the liability of giving her maintenance. You shall have to send maintenance for your daughter. After the divorce suit is disposed of you shall have to pay the alimony/compensation, if directed by the Court. In case of divorce on the ground of extra marital relationship, Court normally does not grant alimony/compensation for wife,

g. It depends on the load on the Court and also  how the opposite side will contest the suit,

h. Certainly. She has every right to contest your suit/petition and/or evidence submitted before the Court.
Krishna Kishore Ganguly
Advocate, Kolkata
12027 Answers
226 Consultations
5.0 on 5.0
a) Do you have any other meaning for adultery? or whether extra marital affair is a legal issue for a married person?  Thus the technical term is adultery for such affairs.

b) No.  The divorce on the grounds of adultery will be applicable for this too.

c) Yes, they can be produced as corroborative evidences under preponderance of probabilities.

d)  She is not the person to give divorce, the court will decide on the basis of merits of the case, whatever the situation there is no compulsion to live together without willingness. 

e)  You prove her desertion and reject her claim.

f) Let she apply for maintenance, you can repudiate her claim on the same basis. There are settled laws rejecting claim for maintenance by a highly qualified woman but sitting idle for the purpose of maintenance.

g) The time taken for such litigation cannot be predicted because it involves various facts to determine the time span.

h) She will naturally contest but you have to prove it beyond her protest and contest.
T Kalaiselvan
Advocate, Vellore
13902 Answers
127 Consultations
5.0 on 5.0
You can apply the divorce under the ground adultery. But you have to prove it through cogent evidence. The diary can use for evidence ,but the extra- marital affair if proved would be immoral and illegal, but it would take a different character altogether .In Shivakumar v Premavathi it was held that stamping the child as an outcome an adulterous relation or charging a woman for extramarital intercourse is a serious thing with legal consequences. No woman can be blamed for an adulterous relation relationship and no child can be called as illegitimate unless there is conclusive evidence in support of such conclusions. So You shall have to establish that she had physical relationship with the other guy after marrying you.

If she is highly qualified and worked in past she won't get maintenance 

Children are fragile, handle them with care. If divorce is inevitable, bitter battles cannot be the option to settle issues of child custody and access.The Supreme Court of India has consistently held that in deciding cases of child custody ‘the first and paramount consideration is the welfare and interest of the child and not the rights of the parents under a statute.  Child custody and divorce are two separate issues which have to be decided separately by the court.The Hindu Minority and Guardianship Act ,1956 under Section 6(a) provides that while in the case of a minor boy or a minor unmarried girl it is the father who is the natural guardian and the mother comes only after the father. if you could establish that the welfare of the child is at stake with his father then you may get his custody
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
5.0 on 5.0
Hi, based on the writing in the diary and mobile bills  it is very difficult to prove the extra martial affairs.

2.  You can file a petition for divorce on the ground of cruelty and also adultery so that you can able to prove your case.

3. It is the duty of the husband to maintain his wife and children but as per latest supreme court judgement court has order well qualified wife will not entitled for maintenance however you are liable to pay maintenance to your child.
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1.yes
2.yes
3.yes
4. if she contests the case then full trial of the case will happen which takes years together time to end.
5. If you can not prove her employment then maintenance will have to be granted. Howeevr if the maintenance is sought for u/s 125 crpc then adultery is a good ground to avoid maintenance.
6. court sometimes refuse maintenance to highly qualified lady.
7. yes
Devajyoti Barman
Advocate, Kolkata
5131 Answers
54 Consultations
4.9 on 5.0
sexual intercourse with a person other than husband constitute adultery. Verbal, emotional or other physiological attachment with other person does not   constitute adultery. Wife's affair with any person before marriage is not a ground of divorce. You should try to settle this issue amicably. Counselling would be the best therapy at this stage. Engage some elder person from both sides and talk about this matter. Be not prejudice, it is your life and you have to keep patient and settle it amicably.
Shivendra Pratap Singh
Advocate, Lucknow
2693 Answers
41 Consultations
4.9 on 5.0
Dear Querist
My opinion on your queries are as under:

a) Is extra marital affair adultery the same thing. 
Opinion: Affair and adultery both are different, affair is only chatting, kissing, talking, traveling but if there is any intercourse then adultery will be there otherwise not.

b) In case of filing a divorce, are they covered under different section of law 
Opinion: Divorce can be filed as per section  13 of Hindu Marriage Act-1955

c) There are other evidences like mobile bills which shows her involvement with someone. Are they enough to prove either extra marital affair or adultery.
Opinion: It is only the affair and can not prove the adultery.

d) If she does not give me divorce then what is the way out. Is it possible that court decides that now we cant live together and dissolve our marriage. 
Opinion: Judicial separation u/s 10 of HMA is another option and after one year of legal separation the divorce can be grant to parties.
 
e) She is 100% at fault, still I have to give maintenance to my wife and my daughter while the divorce case goes on. She took my daughter forcefully (6 yr old).
Opinion: maintenance is based on the ability of the person, for child you are bound but if she is able to maintain herself then she is not entitle to get any maintenance from you.


f)  She is not earning but highly qualified. Do I have to pay alimony for one time settlement
Opinion: It may be possible at the time of divorce.

g) If I have proves, like above, then how much time does it take to get a divorce.
Opinion: Mobile bill, chatting are not strong proof to prove adultery hence no value, but cruelty can be proved by these documents.


h) Can the above proof be contested.
opinion; It may be.
Nadeem Qureshi
Advocate, New Delhi
3513 Answers
129 Consultations
4.9 on 5.0
1. Adultery has punitive consequences whereas extra marital affair does not.

2. Mobile records can be used as evidence in the court, but whether they are sufficient to prove it or not can be determined only in the light of the volume and nature of records.

3. Her refusal to give mutual divorce opens the door of unilateral action for divorce on the ground of cruelty against her.

4. If you can prove her adultery or prove that she is not a victim of mental cruelty then you can repel her claim in the court.

Ashish Davessar
Advocate, Jaipur
18049 Answers
445 Consultations
5.0 on 5.0
as per your question a you cannot file adultery case against your wife as per supreme court order
Only a man can be proceeded against and punished for adultery, but the wife cannot be, even as an abettor, the Supreme Court has ruled.

A Bench of Justices Aftab Alam and R.M. Lodha said, “Section 497 of the Indian Penal Code [which deals with adultery] is currently under criticism from certain quarters for showing a strong gender bias, for it makes the position of a married woman almost as a property of her husband. But in terms of the law as it stands, it is evident from a plain reading of the Section that only a man can be proceeded against and punished for … adultery. Indeed, the Section provides expressly that the wife cannot be punished even as an abettor.”

As per your question No B . 
Different type of section is mention in Hindu Marriage Act in 1955 these are mention below
section :13. Divorce.
section  13A.   Alternate relief in divorce proceedings.
section  13B.  Divorce by mutual consent
as per your question No C
It is depend upon your choice if you want to file divorce section 13 Hindu marriage Act 1955  you can show that bill as a proof of her conduct and character .
As per your question No.D 
after separation of one year you can file a divorce and court will decide base on the evidence of the both side to grand the divorce decree.
As per you question No.E ,
You have to give maintenance to your daughter and wife even she is at fault.
As per your question No.F
yes you have to pay the alimony one time settlement .
As per your question No.G
It is better you apply for mutual consent divorce it will take 6 month of time after the separation of one year .
As per your question No H
yes you can show the proof in court if you file divorce under section 13 Hindu marriage Act 1955 but it take time more than one year.
if you file a divorce then she can file 498a against your and your family member and also file Domestic Violence Act ,D.P 3 & 4 , r/w 34 ipc
it is better mutual consent divorce and make a memorandum of understanding and mention the child custody to whom & alimony  

Mir Mansoor Ali
Advocate, Hyderabad
57 Answers
4 Consultations
Not rated

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