Anand Kumar (Employee) 04 November 2017

Divorce under adultery - petitioner -> husband

My brother is the petitioner husband and had filed a divorce petition under adultery, cruelty and desertation in 2013 in family court. This is still being heard with interim petition filed by the respondent claiming interim maintenance for two daughters aged 11 and 5 in 2014 under Hindi Marriage Act and yet to be concluded. Since the case was dragging by continuous adjournments sought by the respondent's lawyer, he had filed for a petition to seek an expedited hearing and timebound closure of the divorce proceeding with the plea to hear the main case and all interim applications together in the high court. The honourable high court granted an order on this plea to close the case in 60 days with direction to conduct the case on daily basis.

Once the family court started with the proceedings of the hearing, he had filed proof affidavit supporting his claim for adulterous behaviour of the respondent consisting of hand written letters, emails and audio conversations. The case was heard in the family court for 4 hearings before the respondent's counsel filed a revision petition in the high court seeking modification of the order to hear the maintenance petition first and then proceed with the main petition.

The case is in the high court now and we have following questions:

1/. The original petition was filed by the petioner with adultery (by the respondent) as the main reason. Does my brother have the right to contest modification of the earlier order and insist on hearing all cases together? Will his stand stay ground as the previous order was passed on an earlier plea to hear them all together?

2/. Are there case histories in which interim maintenance by the respondent wife has been rejected on similar cases? If so, can you please point us to them?

3/. If the high court decides to modify the order, can he contest the claim for interim maintenance in the family court to pass an order for maintenance from the date of the order? Are there case histories where this has been done in the court? If so, can you please pase us case references?

4/. If the court decides to order interim maintenance from the date of the petition, can he seek for proof of expenses by the respondent to grant maintenance as these are from the past 3 years?

5/. Do audio recordings hold good in the court as evidences to prove adultery? The recordings are genuine, was voluntarily extracted and are pertinent to the case. My question is to know if there are any other legal hurdles that can make these recodings invalid.

6/. Since this is a case of adultery, does section 26 and Sec 23A of Hindu Marriage Act help the petitioner father to get custody of the kids. If so, what do these sections state in layman terms and when can this be filed in this case?

Thanks,

Anand

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Vijay Raj Mahajan (Advocate) 04 November 2017

Interim maintenance for both minor children during pendency of main divorce petition should be decided first, this set principle of law and practice, if High Court by its previous order failed to state so the revision of its previous order will be allowed Welfare of minor children is paramount matter of consideration that no court will ignore and by mistake is was ignored by the High Court while passing its previous order it can always amend that order. The father is supposed to provide or share amount of maintenance of his minor children. As far the main petition of divorce is concerned that can follow up just after decision of the maintenance issue of minor children. Proof of adultery by way of audio or vedio recordings need to be presented with certificate under section 65 B of the Evidence Act and to further proof the recording done is of those people about whom allegations are being made, forensic report to this effect will be required. The respondent can always deny her voice recording and to prove it a proper procedure has to be followed. Otherwise whatever audio recording you got will be of no use. Proof of adultery by way of SMS or email or messages, will not be sufficient to prove the charges unless these too are admitted by the respondent or proved by forensic experts. More so what is recorded, its contents make big difference, mere admission by respondent about her act of adultery is not sufficient as that one can be saying to tease the petitioner or provoke him for committing some act, how far those admissions actual truth of the matter of s*xual relationship outside the marriage that court has to determine. If recording of actual acts of s*xual relationship outside marriage exists that can be of great help. Eye witnesses to acts of adultery, hotel or guesthouse records of both adulterous people remaining together are good piece of evidence to prove adultery.

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Adv Radhika Mehta (Advocate) 08 November 2017

Originally posted by : Anand Kumar

The case is in the high court now and we have following questions:

1/. The original petition was filed by the petioner with adultery (by the respondent) as the main reason. Does my brother have the right to contest modification of the earlier order and insist on hearing all cases together? Will his stand stay ground as the previous order was passed on an earlier plea to hear them all together?

Since the High Court directed that the Interim Application be heard along with the main Petition on account of the conduct of the Respondent of taking adjournments, the same should be pointed out during contesting the modification Petition. Rely upon a copy of the Roznama to substantiate your case.

2/. Are there case histories in which interim maintenance by the respondent wife has been rejected on similar cases? If so, can you please point us to them?

Interim maintenance cannot be "rejected" on this ground. The factors for determining the Interim maintenance are income of the parties, the class of living, the dependents etc.

3/. If the high court decides to modify the order, can he contest the claim for interim maintenance in the family court to pass an order for maintenance from the date of the order? Are there case histories where this has been done in the court? If so, can you please pase us case references?

The date from which the order is to be passed is the discretion of the Court

4/. If the court decides to order interim maintenance from the date of the petition, can he seek for proof of expenses by the respondent to grant maintenance as these are from the past 3 years?

No, he cannot. Rather than getting into these small nitty-gritties, work on establishing that the wife is working, if she is, and that she has sufficient income necessary for her support

5/. Do audio recordings hold good in the court as evidences to prove adultery? The recordings are genuine, was voluntarily extracted and are pertinent to the case. My question is to know if there are any other legal hurdles that can make these recodings invalid.

Yes, they are valid. Keep the original source of these recordings intact.

6/. Since this is a case of adultery, does section 26 and Sec 23A of Hindu Marriage Act help the petitioner father to get custody of the kids. If so, what do these sections state in layman terms and when can this be filed in this case?

Sec 23A basically says that the Respondent can file a counter-claim for reliefs on the ground of the Petitioner's cruelty, adultery or dersertion. Your brother will not benefit from sec 23A as he is the Petitioner. He should have already applied for custody along with Divorce.

Thanks,

Anand

Divorce under adultery - petitioner -> husband

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