Alan David (Branch Manager) 03 April 2012

Adultery by wife

Married and lived for 3 years and good life.

She got friendly with 1 man and on his instigation she slapped 498a at vizag.Kept in Police Station for 2 days and judge remanded me.Somehow pacified my wife and self bailed myself the same day.

She said she was sorry and I filed RCR and she signed in front of judge for excusing her.

498a case was dropped.

She became pregnant and left me when she was 4 months pregnant and filed for Divorce in 2008.She stopped coming and case ran till Feb 2011 and was dismissed for non appearance by her.

I acme to know that she had given birth to 2 girls and was living with this guy at Nolambur.

Filed Police complaints against her and the adulteror but still no action by the Police.

I managed to get the Birth certificates for both children and the name of the father is mentioned as his.

This case is running for 5 years now but I will not give up as i want to punish her and him.

My questions. for suggestions

1. I have filed complaints on 494 and 497 ,but still Police are not filing the FIR.

2. Can I file for damages as per IDA,1869.

3 .If Police are not filing the complaint can I approach the court with my Divorce mentioning adultery and damages.

4. Will court direct the Police to file the FIR and the adulteror be punished.

5. Will the court order for DNA test for the first child for paternity.

6. Will I be in a position to get the child custody if proved by DNA.

Thanks

Alan

Reply Follow

10 Replies

Adv.R.P.Chugh (Advocate/Legal Consultant (rpchughadvocatesupremecourt@hotmail.com)) 03 April 2012

Dear Querist,

After having perused the facts of your case - I tender the following opinion.

1. They cannot register the FIR as you should appreciate these offences 494/497 are non-cognizable which means that there is a different procedure for redressal of your grievance i.e by filing a complaint before the local area magistrate u/s 190(i)(a) r/w 200 of the CrPC - who would record your statement on oath and proceed with the complaint or ask police to investigate.

2. The provision for damages against adulterer/paramour under IDA, 1869 has been removed - as the legislature felt that was inspired by notion that women were property (No comments as to its prudence)

3. You can certainly approach the court for divorce on ground of adultery - remember to make the paramour a party.

4. The trend in judiciary as regards DNA testing is highly skewed in favour of women - and the courts normally don't allow it - however there are decisions that might help you - for more on this see my article https://bharatchugh.wordpress.com/2012/03/30/supreme-court-on-dna-testing/

Feel free to email !

Alan David (Branch Manager) 04 April 2012

Dear Sir

Thanks you for the advise.

1. I had approached the DC who said that he would get the permission from the Magistrate and register the case.

2. Damages : I have spent a lot of money in this case,can I anyways put it to the court or is there any clause for defamation of having brought so much pain to me and my family for no fault of mine.

3.Will the paramour be punished as per 494/497.

4.Will the woman have to go scot free.Is there no other legal provision.

5.I can make a claim on the paternity of the first child and if it is mine can I claim for custody.

Thanks and Regards

Alan David

R.BERNATSHA (Advocate) 04 April 2012

Dear Alan,

First ,you have to file a private complaint u/s. 190(i)(a) or 200 of Criminal Procedure Code for adultery before the concern Magistrate Court. and second, you have to file a divorce petition before the family court or sub court. DC can't get permission from magistrate to register case on the allegation of adultery. Adultery by wife may not defame the husband anyway.

thank you.

R.Bernatsha Advocate

Chennai-20

contact No.98401 33805

ketan (owner) 05 April 2012

Sir, pls advise that any person married with divorcee girl ( she was hiving one girl from previous husband ) but after marriage it comes to know that wife has not taken decree of divorecd from any court but she is having deed of divorece signed in registar office and also came to know that on previous husband she filed 498a and collected huge amount ( in six figures ) and now she is threatning to my friend that pay otherwise will filed dowry complaint., it is also come to know that after left from here with parents she had taken admission of her daughter and shown new name of her husband.,my friend has got no any child from this wife. pls advise ..what is my friend position and what action he can take against her.

Thanks

sri (ceo) 05 April 2012

i would suggest to walk off...

does she own any assets to claim as your damages?

paramour tracking is a new risky and may be deadly job now...

trust easily broken nowadays with life demanding comforts...

she ran away because you did not give her comforts...

your prestige is already spoiled... with defamation do you think that prestige will come back?

think practical in life... there are parents not taken care by all their children and die without medication or food... this is this generation...

be brave to accept that deception, loss of trust is just normal... life is not so ideal... otherwise, why the law does not act on adultery in the first place...

ketan (owner) 06 April 2012

Thanks SRI,It is true whatever she is having she grabed from my friend.It is also true that by filing defamation prestige will not come back., but now what is my friend position., and whether now still he is liable to her.

Thanks for advise but pls advise position of my friend.

sri (ceo) 08 April 2012

his case comes under live in relationship... eligible for maintenance... compromise and cut off...

(Guest)

DEAR

MR. BHARAT IS CORRECT.

ON MATRIMONIAL MATTERS POLICE CANT REGISTER THE FIR.

YOU MAY FILE THE COMPLAINT CASE ONLY.

YES COURT CAN GIVE THE ORDER FOR PATERNITY.

YES YOU CAN GET CHILD CUSTODY STILL ON BASIC OF THAT YOU CAN LOOK AFTER AND GIV THEM BEST EDUCATION & LIFE. PROVE CHILDRENS LIFE WILL BE BEST WITH YOU BATTER THAN YOUR WIFE.