Adultery

Establishing asdultery is a herculean task as the nature of the act is very private and discreet. However you may choose to opt for establishing her extra martial affair as a ground for cruelty. It is best to amend your petition and seek divorce on the grounds of cruelty,

As far as your daughter is concerned, file a petition  under the guardiand and wards act seeking permanent custody of the said child and also file an application seeking interim visitation rights during the pendency of the trial. You shall definitely be given oppoortunities to meet your child.

Augustine Chatterjee

Advocate & Solicitor at Law

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hi i agree with Augustine Chatterjee advice you follow and take right decision 

thanks 

Actual adultery need not proven if you are only seeking divorce. But if you really want to charge adultery you can collect evidence such their staying together behind closed doors with no one else, proof of their staying together in lodges or hotels etc. Only the man is punishable under IPC-497 and not the woman. Her actiom can only be a ground for divorce.

Dear Dr. MPS Ramani and other learned members,

As you said only man is punishable under IPC-497 but what if man says that the lady has hided the fact that she is married to someone else?  What will be the scenario in this case?

Man can have s*x with unmarried woman.  If this is the case wherein a man says that he has been cheated by the woman by misrepresentating her marital status, the only thing is done is divorce on the ground of cruelty by the husband of that woman.

Please share your views..

His saying does not count; he should prove that the lady did not prvide the correct information.

Dear P. Venu,

Thank you for your reply.  If Wife's marksheet, pan card and even passport having her middle name and surname of before marriage and even if wife is willing to save the adulterer and if willing to give it in writing that she misrepresented the fact.

Will this help to escape both wife and the adulterer under 497?

IPC-497 says 'if the man knows that she is married to another man or has reason to believe that she is married to another man'  If these conditions are not satisfied IPC-497 will not apply.

Thank You Dr. MPS Ramani for your valuable comment.

This means if a wife has committed an adultery with her lover and wants to protect her lover, it can easily be done by finding the loopholes.

Husband not giving divorce to wife. Husband 1000kms away from wife.  Wife wants to settle down.  Wife's all the documents are by her maiden name and she didn't change anything after marriage.  Husband and wife living separately since 8 years but husband not willing for divorce.  

Now, wife finds some other guy and both are deeply and madly in love.  So if they live together they can easily find loopholes in the law by putting this line of section 497 "'if the man knows that she is married to another man or has reason to believe that she is married to another man" and can easily escape section 497 by lover stating that he was unaware that the girl is married as she does not have anything which can prove she is married.  In this the wife can also support her lover giving statement like "yes, my lover is not aware of it.  I didn't disclosed it to my lover because If I would have been disclosed this then I would be unable to get his love."

Case finished.  Adulterer man is escaped and wife cannot be prosecuted under section 497.  There is nothing more husband can do on this.  Right?

Section 497 as it stands today was drafted by Lord Macaulay in 1832. It became law in 1860. It has not been amended since. Lord Macaulay had a low opinion about Indian culture. He held that women in India were treated as objects incapable on committing any crime.

If things happen the way you have stated the man may escape punishment. The woman will get no punishment on that count. If she claims that marriage did not exist there would be no question of divorce. Things will start only when her husband starts against his own wife and the other man. The other man will claim that he did not know that she was married. She may confirm that part of the case. But her marriage to her husband is concerned if she asks for divorce that will amount to her admission of marriage. If she denies marriage either the husband will not oppose it or will oppose. If she denies marriage and the husband does not oppose he will have to give neither maintenance nor alimony. If he opposes it she will still eventually get divorce and the huband will have to give compensation.

The burden of proof that he had intersourse but did not know that the woman was already married will be on the other man. Much dirty linen will be washed before the court. If the man had any reputation he would like to avoid that.

Thank You MPS Ramani for your valuable comment.

Really appreciate it.