fathers_rights (professional) 02 November 2012

Does act of adultery affects custody rights

Hi,
I have been married close to 10 years now. I have a 4 year old son and 7 year old daughter. My wife started having an affair with her friend from India while we were living overseas and took the children and settled in India two years back so that she could meet this guy often. That guy was also married with a son. She admitted my kids to school and is living off whatever money I have given her (enough to last her next 5-7 years).I also tried visiting a few times to reconcile with her and try to make her see the light.

Now after two years she realized that the guy was not her type, but instead of coming back to me, she has started a new affair with her cousin. Her cousin recently came out of a live in relationship himself with another woman and is not yet married. She also blocked access to my kids which made me file for a divorce petition against her in my hometown. She has not attended any hearings and an ex-parte order might be granted if she doesnt appear at all. SInce her cousin is known to my kids, he is trying to portray himself as their father and has had verbal arguments on why I dont deserve them. All the relatives on their side dont seem to have a say in this and are keeping mum.

A month or so ago, wife filed a DV petition against me for which I have filed a reply. There are no serious charges in it as I have taken good care of her and its totally fabricated. I have also filed a separate petition under Section 7 of GWA asking for custody of my kids. In all my cases the main charge against her is adultery. I have evidence in form of email communication and can get a few witnesses who know about her affair.

I would like to know how the court might see this and whether they would grant me custody of the kids. If my wife wants to marry her cousin , will the kids be allowed to stay with them ? We are talking about two adults who are not stable in their relationships. Will the court overlook her adultery and continue to grant her custody ?

What can I do to prevent her taking the kids and meeting him or vice versa ?

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5 Replies

stanley (Freedom) 02 November 2012

If she blocked access to your kids you have rightly filed under GWA for custody and visitation . even if visitation is granted how would you make use of it as you are working abroad .your wife is smart and is not attending the divorce case and is aware that an ex-parte order would be passed and she wont even contest it .

If you dont give in to divorce how would she marry your cousin . you are paving the way for her to get married with the divorce . Until and unless you plan to remarry . Custody is awarded based on welfare of the child . If you can prove adultery than her cousin can be perscuted by law but not her .

fathers_rights (professional) 02 November 2012

Thats exactly what I was thinking as well. My lawyers are suggesting that I get the ex-parte order and then pursue the custody case on the grounds of adultery. I am not at all keen to re-marry for the next few years, so I dont want to make it easy for her to go with a guy of choice unless she has put some thought into it.

So I assume you are suggesting I drop the case ? If I do that will that weaken the adultery charges as that is one of the reason I have asked for divorce in the first place?

stanley (Freedom) 02 November 2012

your lawyer only wants his fees he is least bothered if you get ex-parte order so he wants to run the case for the hearings .Now you are talking sense :-). Divorce is seperate and custody is seperate .

fathers_rights (professional) 02 November 2012

I am still confused, you are suggesting I dont go for ex-partre orders and make wife fight for the divorce ? I still would like to know how courts will decide custody if she remarries. Even if the custody is given to the mother initially, can it be challenged if she remarries ? We are talking about two kids who have seen two men in the last two years trying to to act like their father.

Adv. Chandrasekhar (Advocate) 03 November 2012

Originally posted by : fathers_rights

I still would like to know how courts will decide custody if she remarries. Even if the custody is given to the mother initially, can it be challenged if she remarries ? We are talking about two kids who have seen two men in the last two years trying to to act like their father.

Let us see your custodial rights at two phases- prior to her remarriage and post her remarriage. Even though we artificially devide the period into two phases, before the courts for consideration is only one moot point. With whom the children welfare lies? In the first phase - Certainly it does not lie with adulterous parent, as the children of tender age require to be imbubed with good moral values. But the question raises that whether can you prove her adultery in the court to the satisfaction of the court (The quality of evidence is not "beyond reasonable doubt" but "preponderence of probability"). If you succeed in such attempt, you will also succeed to get permanent custody of the children with the visitation rights to non-custodial parent. Even assuming that you fail to prove such a charge about her in the court, then also your chances of having the children for permanent custody are not weak. If you prove before the court that you can provide the better education and harmonious and hilarious childhood life to the children, you will get succeed. One child is below 5 years and it may create some problems to you, but as Indian courts will move at snail pace, by the time the decision comes the younger one also will cross the age of 5. Now in the second phase - if after her remarriage, the custody case final hearing comes before the court and if you are unmarried at that time - you have got better chances than her to have permanent custody. Before parting with your querry, I also suggest you that you put proper pleadings to satisfy the court that you go for your job (probably abroad), how proper care will be taken care of after their school hours for getting proper result.

Wish you best of luck.