If you are stuck in such a situation, here is what to do.

Mrs. Kavita Sharma, a 25-year-old homemaker from the city of Suryanagar, recently discovered that her husband, Mr. Alok Sharma, aged 31, has been unfaithful. After being confronted, Mr. Sharma admitted to the affair. The couple has been married for four years and has a two-year-old son, Rishi. Mrs. Sharma has never been employed and is completely financially dependent on her husband. Her family is now seeking to understand her legal rights and the best course of action regarding divorce, custody of their son, and financial support.

Advice in such cases

When faced with a spouse’s infidelity, it is crucial to remain calm and take calculated steps to protect your and your child’s interests. Here are some immediate actions to consider:

• Gather Information: While your husband has admitted to the affair, it is wise to discreetly gather any available evidence. This could include messages, emails, or any other communication that substantiates his admission. This will be important if you decide to file for divorce.
• Secure Financial Documents: Try to collect copies of all important financial documents, such as your husband’s salary slips, bank statements, income tax returns, property papers, and details of investments. This information is vital for claiming alimony and child maintenance.
• Prioritize the Child’s Well-being: Ensure that the child is shielded from the conflict as much as possible. The court’s primary consideration in custody matters is the child’s welfare.
• Consider Your Options: Decide whether you want to try reconciliation or proceed with legal separation or divorce. Infidelity is a valid ground for seeking a divorce in India.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think

Applicable Sections of Law

The legal recourse in such cases primarily falls under civil and family law, not criminal law. Adultery is no longer a criminal offence in India.

• Divorce: Under Section 13(1)(i) of the Hindu Marriage Act, 1955, having voluntary sexual intercourse with any person other than his or her spouse is a ground for divorce. Mrs. Sharma can file a petition for divorce on this ground.
• Maintenance (Alimony): As a financially dependent wife, Mrs. Sharma is entitled to claim maintenance for herself and her son. This can be claimed under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) and also under the Hindu Adoptions and Maintenance Act, 1956. The court decides the amount based on the husband’s income, assets, and the standard of living of the family.
• Child Custody: The custody of the child is decided based on the principle of the “welfare of the child.” For a child as young as Rishi (2 years old), courts generally grant custody to the mother, with visitation rights for the father. The father is legally obligated to provide financial support for the child’s upbringing, regardless of who has custody.

If you are the complainant

If you are the one initiating legal proceedings (the petitioner), you need to take the following steps:

• File a Petition: The first step is to file a divorce petition in the appropriate family court, citing adultery as the ground. Your petition should also include prayers for child custody and maintenance.
• Seek Interim Maintenance: You can file an application for interim maintenance, which provides financial support for you and your child during the period the divorce case is ongoing.
• Prepare for Mediation: The court often refers matrimonial disputes to mediation first to see if a settlement can be reached. Be prepared to state your case clearly and what you expect from the settlement.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think

If you are the victim

As the aggrieved party, it is important to focus on your legal and emotional well-being.

• Do Not Act Impulsively: Avoid making hasty decisions driven by anger or hurt. Take your time to understand your legal rights and options.
• Build a Support System: Lean on trusted family and friends for emotional support during this difficult time.
• Document Everything: Keep a record of all events, conversations, and expenses. This can be helpful later in court.
• Focus on Financial Independence: While you are entitled to maintenance, it’s also a good time to consider long-term options for financial independence, if possible.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think

How the police behave in such cases

Infidelity is a civil matter. The police have no role to play in a case of adultery. You should not approach the police for this issue. Police intervention would only be necessary if there are elements of criminal offences like domestic violence, cruelty (under Section 498A of IPC, which is still in force until the BNS is fully implemented), criminal intimidation, or threat to life.

FAQs people normally have

• Will I definitely get a divorce on the grounds of adultery?
  Yes, if you can prove it. An admission by the spouse is strong evidence. Adultery is a well-established ground for divorce under Indian law.
• How much alimony will I receive?
  There is no fixed formula. The court considers the husband’s income, assets, liabilities, the wife’s needs, the standard of living during the marriage, and the duration of the marriage. It can be a monthly payment or a one-time lump sum amount.
• Will I get full custody of my son?
  For a child of two years, the mother is almost always considered the primary caregiver, and custody is usually granted to her. The court’s paramount consideration is the child’s welfare. The father will typically be granted visitation rights.

What evidence is required?

To prove adultery in court for a divorce case, you may require evidence such as:

• The spouse’s own admission or confession.
• Digital evidence like text messages, emails, or social media chats.
• Photographs or videos showing the spouse with the other person in a compromising position.
• Testimony from witnesses who have direct knowledge of the affair.
• Hotel records or travel documents.

How long will the investigation take?

Since this is a civil matter (divorce), there is no police “investigation.” The process is handled by the family court. A contested divorce in India can be a lengthy process, often taking anywhere from two to five years, or even longer, depending on the complexity of the case, the court’s caseload, and the cooperation of both parties. However, an application for interim maintenance for the wife and child is usually decided much faster, often within a few months of filing.

Advocate Sudhir Rao, Supreme Court of India