Yes you can get the same as you are the mother and child is minor 

You can seek sole custody of your daughter but your husband would get visitation rights 

you can  file for divorce on grounds of mental cruelty 

He needs to rover it in court after the complete divorce proceedings same can’t be used in custody unless proved in court 

I understand this is a deeply personal and emotionally draining phase, and I appreciate your courage in taking the first step toward clarity and resolution.

Here’s a structured legal insight into your rights and options under Hindu Marriage Law and child custody principles, tailored to your concerns:

🔹 1. Can You File for Divorce – Despite Your Husband’s Refusal?

Yes. Under the Hindu Marriage Act, 1955, you can initiate divorce proceedings even if your husband is unwilling, on valid legal grounds such as:

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  Mental cruelty and incompatibility (Section 13(1)(ia))

  
  


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  Breakdown of marriage with no chance of reconciliation

  
  

Even though there is a past extra-marital involvement, the court will not prevent you from seeking divorce, especially if the marriage is irretrievably broken and you have suffered emotionally.

🔹 2. Will the Alleged Adultery Impact Your Child Custody Rights?

In family courts, child custody is NOT about punishing either parent. The focus is always:

🔸 “What is in the best interest of the child?”

Unless it is proven that you are an unfit or abusive parent, your past personal relationship will not automatically disqualify you from having custody or visitation rights.

Also:

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  Mere photos, chats, and hotel bookings may suggest a relationship, but may not be enough to conclusively prove adultery in court unless there's concrete evidence like eyewitness accounts or admissions.

  
  

⚖️ Indian courts are moving toward a progressive, child-centric view, and do not take away parenting rights purely due to a consensual adult relationship that didn’t harm the child.

🔹 3. Types of Custody You Can Seek

You can claim any of the following:

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  Full physical custody, especially if the child is attached to you or still a minor

  
  


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  Joint custody, with child residing primarily with you and periodic access to the father

  
  


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  Visitation rights, if shared parenting is possible

  
  

The court also looks into:

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  Child’s age and preference (if over 9–10 years)

  
  


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  Stability and emotional comfort of the home

  
  


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  Education and upbringing environment

  
  

✅ You can also seek interim custody during the case and maintenance for the child under Section 125 CrPC or Guardians and Wards Act.

🔹 4. Practical Legal Steps You Can Take Now

Here’s what I recommend as your next move:

✅ 1. Start with Consultation & Case Strategy
We’ll draft your divorce petition based on mental cruelty and irretrievable breakdown. You need not file on adultery grounds.

✅ 2. File for Custody Simultaneously
In the same family court, you can request interim custody and permanent custody of your child.

✅ 3. Keep All Evidence Ready – Yours and His
We’ll organize your records of his mental torture and prepare a defense if he uses your past affair against you out of vengeance.

✅ 4. Mediation Option
You can also explore court-sponsored mediation, where terms of custody, separation, and maintenance can be discussed—without heavy courtroom trauma.

📌 Final Word

You have the full right to exit a toxic marriage, and courts will not ignore your role as a mother based on personal mistakes if you’ve otherwise acted in good faith and responsibly. Your strength lies in preparing early, legally, and emotionally.

Would you like me to assist you with:

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  Drafting your divorce and custody petition

  
  


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  Handling anticipatory moves from your husband (including mental harassment or misuse of legal process)

  
  


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  Setting up a confidential legal strategy to protect your child’s future and your peace of mind?

  
  

Feel free to message or WhatsApp me directly at Nine Five Nine Two Five Zero Zero Zero Six Eight for a completely private consultation. Let’s take this forward step-by-step—with dignity, law, and clarity on your side.

Warm regards

If you have stayed in same room  with your lover in the hotel it is sufficient to prove adultery 

welfare of daughter is paramount consideration in custody cases 

Dear Madam,

You can just file multiple cases to pressurize him to agree for mutual divorce. Married women will be preferred to married men in getting divorce easily.  File divorce on the ground of incompatibility. Since your child is female so you will be having an edge to get the child. Also file domestic violence case against him and his family members.

1. Better to opt for Mutual Consent Divorce, which saves time and money.

2. By opting for MCD, the custody of your daughter can be mutually and amicably settled between you and your husband.

3.  Division of assets and alimony could be amicably settled by opting for MCD.

4.  These evidences, especially hotel room booking, may work against you, in case of divorce on the basis of Adultery ground.

Father  is entitled to full custody of child after the  child reaches age of five with visiting rights  to mother. This is general rule but in case of a daughter court will grant full custody to mother with visiting rights  to father when there is no elder woman in family father and mother  is better capable to up brining the daughter. As he is not ready you can file divorce  on the grounds mentioned. Defense of extramarital affair is not valid ground to deny you alimony and maintenance.

If the issues of mental torture by and incompatibility with your husband continue, you may very well file for divorce and seek the custody of the child. You need not worry about his proving the case of any adultery against you. You only need to focus on your life and that of your child at this point.

Yes, you can file for divorce under the ground of cruelty and incompatibility. Even if your husband has evidence of an extra-marital affair, child custody is decided based on the welfare and best interest of the child, not just the character of the parent.

As the mother, especially of a 5-year-old, you generally have a strong case for custody under Hindu law, unless proven unfit as a parent. Your husband may use the adultery evidence in court, but it does not automatically disqualify you from getting custody.

You should consult a family lawyer in Bengaluru to file a divorce petition and seek interim custody of your daughter.

If he persists with his ill treatment, lodge a complaint with the women's police station having jurisdiction over your area. Leave the place with your child and live somewhere safe. Move for divorce without delay by engaging a competent, reliable lawyer.

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You are at liberty to leave the matrimonial home with your child 

file police complaint against your abusive husband 

Your Safety Comes First — You Can Leave the House Legally

Under Indian law, no woman is required to stay in an abusive or mentally torturous environment—regardless of whether the home is owned or rented by the husband or in his name. You have every legal right to safeguard yourself and your child.

Yes, you can leave the house—even without his permission—especially when your mental health, safety, and your child’s well-being are at stake.

Legal Protection Options (To Make a Clean and Safe Exit)

Here’s what you can do immediately:

1. File a Domestic Violence Complaint (DV Act, 2005)

You can file this through:

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  The nearest police station

  
  


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  A Protection Officer

  
  


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  Or a Family Court

  
  

In the same complaint, you can request:

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  Protection Order (to stop his harassment)

  
  


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  Residence Order (to secure a separate residence or ask the court to restrain him from entering yours)

  
  


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  Custody Orders (interim custody for the child)

  
  


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  Monetary Support, if needed

  
  

2. Exit the Home Safely

Yes, you can leave when he is not around, but we recommend you document the reason why (recorded message, email, message to a trusted friend, etc.). This will protect you if he tries to claim you “abandoned” the child or left without cause.

You should also inform the local police station or lodge a Non-Cognizable Report (NCR) or General Diary Entry to document the harassment and your reasons for leaving.

Important — What Not to Do

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  Do not leave without documenting the mental harassment.

  
  


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  Do not hand over the child later out of guilt—secure a legal interim custody order through DV or Guardianship Act.

  
  


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  Do not engage in verbal confrontations while leaving—ensure your safety and take smart legal action.

  
  

How I Can Help You Right Now

You're in a sensitive and urgent situation, and I can assist you with:

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  Drafting and filing a Domestic Violence petition

  
  


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  Filing a custody application for your child

  
  


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  Helping you exit safely with legal documentation

  
  


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  Protecting your job and your rights as a working woman

  
  


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  Defending against any false counter-allegations

  
  

Let’s Act Immediately

I recommend we set up a confidential consultation—either virtually or by phone. You’ll receive:

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  A tailored legal plan for your situation

  
  


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  Professionally drafted legal documents

  
  


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  Step-by-step guidance to protect yourself and your child

  
  

He can’t forcibile keep you. You can call police if he is confining you

In respect of a girl child the court will always favour the mother for custody.

Adultery is a ground for divorce, but it doesn't automatically disqualify a mother from caring for her daughter 

The primary concern in child custody cases is the best interests of the child

3) The Bombay High Court has ruled that adultery cannot be a ground to deny child custody, even if it's a ground for divorce. The court emphasized that being a "not a good wife" does not necessarily mean a parent is a "not a good mother

1. Divorce in Your Case
   Mental cruelty on the part of the husband is a good ground for divorce under the Hindu Marriage Act, 1955. As you have suffered mental torture for 8 years, you can seek divorce on this ground. Your extramarital affair, though mentioned by your husband, is not a criminal act (adultery was legalized in India in 2018) but can be used as a reason for divorce. It will not exclude you from divorce.
   
   2. Child Custody Issues
   As your daughter is 5 years old, courts always like to give custody to the mother unless there are serious circumstances impairing the well-being of the child. Significantly, adultery or marital infidelity by a parent alone does not bar them from obtaining custody. Courts are most concerned with the child's well-being and whether or not the parent can ensure the child a secure and loving home. The court will take into account factors such as your capability to take care of the child, the child's ease and overall well-being and not your moral evaluation of your own personal life.
   
   3. Regarding the Evidence of Adultery
   Chats, pictures, and hotel bookings can be used as circumstantial evidence of adultery, but adultery is no longer a criminal act. It can be considered as a reason for divorce but won't necessarily impact the custody rights unless it damages the welfare of the child. Your husband can attempt to bring this evidence before the court, but the court will distinguish between the issues of adultery and custody.
   
   4. Removing the Child from the Home of the Marital Couple
   If you are being mentally tortured and your husband is not permitting you to go out, you can take refuge under the Protection of Women from Domestic Violence Act, 2005 (PWDVA), where you can obtain protection orders and residence orders so that you remain safe. You can go to the police or a women's helpline for instant help and protection. Legally speaking, you can't simply go out of the house with the child without a court order or informing her or him because the two parents equally have rights to the child. But your daughter being less than 7, courts would predominantly give the mother custody. To prevent legal issues, approach the family court and file a petition for custody and protection orders prior to moving out. In case you move out without notice, your husband may accuse you of kidnapping, which will create problems.
   
   5. Practically How to Proceed
   File a divorce petition on the grounds of cruelty in the family court. At the same time, file a custody petition for your daughter, highlighting her well-being and your capability to take care of her. File a case under the Protection of Women from Domestic Violence Act to obtain protection orders for harassment and mental torture by your husband. Approach local women's helplines or NGOs for immediate protection and legal assistance. Do not confront or leave the house suddenly without legal protection to avoid charges of kidnapping or contempt of court.
2. Dealing with Your Fear That Husband Will Contact the Other Man
   Your husband will attempt to get the other man into court for proving adultery, but this will not impact your rights to custody except that it has been proven that your relationship is detrimental to the welfare of the child. Emphasize your case on your mental torture and your capacity to provide a secure environment to your daughter.

1. If you are confined to a place by force, you can call Police helpline and get yourself free.

2.  If you just leave home with the child when he's not around, he may lodge a missing complaint in the Police Station.

3.  To prove adultery in the Court, your husband may make the other guy also as a party to the case and press for the custody of the daughter.

You can file contested divorce case without waiting for his nod for divorce. 

You may have to prove the grounds for divorce what you rely upon.

If cruelty is the ground for divorce you must be able to prove them before court.

As far as child custody is concerned you may have to file a child custody petition under guardians and wards act for sole custody

The evidences in his possession no doubt are not sufficient to prove the acts of adultery except hotel booking and staying there over night.

You can challenge the same on merits

You can very well leave the house with the child during his absence.

You can get rid of him by staying separately in a different location.

Even if he is able to locate your address, you don't give the child to him under any pressure, ask him to go to court and get order in this regard.

The court will not grant custody without hearing you if at all he files a child custody case. 

Whether he has number of that guy or not, your husband cannot just like that call him to court for the purpose of proving the acts of adultery.

Your paramour can refuse to even talk to your husband.

Your husband cannot do anything about it when your paramour is refusing to entertain your husband's call.

The court also will not summon the adulterer because the person relying upon this allegation has to implead him as a party in the main case and if the adulterer do not appear before the court even after receiving the summons then the court cannot force him 

However even if your husband is able to prove the acts of adultery, the court cannot  decide about giving sole custody to him for various reasons.

It’s very difficult to prove adultery in court you can do effective cross examination in court to disprove him

• Yes, you can leave the house with your child for safety, especially if there is mental harassment.

  • Before leaving, file a police diary entry/complaint stating domestic cruelty and fear for safety.

  • Take key documents (your ID, child’s ID, certificates, medical reports if any).

• Child Custody: Even if he proves adultery, courts decide custody based on the child’s welfare, not your past relationship. You will still have a strong chance of getting custody as the mother of a young child.

• Legal Action:

  • File for Divorce under cruelty (HMA Sec 13)

  • File for Domestic Violence protection (PWDVA)

  • Seek interim custody and residence order

• Safety: If urgent, contact women’s helpline 1091 or nearest police station.

Living in adultery is valid ground for denying custody of child, particularly the girl child, but there are ways to obtain custody of child in such situation. 

-  As per law, even a mother who is a housewife can gain custody of the child and the father will be asked to provide child support.

- The mother is the preferred custodial parent when the child is less than five years old. The opinion of a child who is over nine years old will be considered.

- Hence, being mother of baby child, you are the only & fit to get full custody legally. 

- Further, if he is not ready for divorce then you can file a contested divorce case before the family Court on the ground of cruelty and false allegation 

- Further, he cannot take any legal action against you for the said affairs , except that he can take divorce on this ground. 

- You can contact me, if  further suggestions needed.