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

We recently consulted with Mr. Sameer Gupta, a 32-year-old professional who was deeply distressed by a family crisis. He discovered that his 62-year-old father, Mr. Om Prakash Gupta, was involved in an extramarital affair with a 24-year-old employee at his business. Sameer’s mother, Mrs. Kavita Gupta, had endured a tumultuous marriage filled with frequent conflicts. The situation reached a breaking point when Mrs. Gupta found concrete evidence of the affair, including incriminating chat messages and receipts for expensive jewelry purchased for the other woman. Compounding the emotional turmoil is a significant financial concern: Mrs. Gupta is a co-borrower on substantial business overdraft loans taken by her husband. The family is now grappling with the difficult question of the next legal steps, including the possibility of divorce after decades of marriage.

Advice in such cases 💡

Discovering a parent’s infidelity is emotionally devastating. The first step is to provide unwavering emotional support to your mother. It’s crucial to approach this situation with calmness and strategic thinking rather than emotional outbursts.

• Secure the Evidence: Ensure all evidence, such as chat screenshots, photographs, and purchase receipts, is safely preserved in multiple digital and physical formats. This will be critical for any future legal proceedings.
• Financial Assessment: Immediately gather all documents related to joint assets, liabilities (like the overdraft loan), and your mother’s personal assets (Stridhan). Understanding the financial landscape is key to protecting your mother’s interests.
• Seek Legal Counsel: Before taking any action, consult with a seasoned family law advocate. Professional legal advice is paramount to navigate the complexities of divorce, maintenance, and property division.

Applicable Sections of Law 📜

Under current Indian law, the legal landscape concerning infidelity has evolved significantly. It’s important to understand the relevant statutes:

• Grounds for Divorce: Adultery is no longer a criminal offense in India following the Supreme Court’s judgment in Joseph Shine v. Union of India. However, it remains a valid and strong ground for seeking a divorce under Section 13(1)(i) of the Hindu Marriage Act, 1955.
• Maintenance Rights: A wife is entitled to claim maintenance from her husband. This can be sought under the Hindu Adoptions and Maintenance Act, 1956, or through an application under Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS). The court considers the husband’s income, assets, and the wife’s needs to determine the amount.
• Domestic Violence: The years of conflict, emotional distress, and financial control could potentially constitute “emotional and economic abuse” under the Protection of Women from Domestic Violence Act, 2005. This Act provides for protection orders, residence orders, and monetary relief.
• Cruelty: If the father’s conduct has caused grave mental pain and suffering to the mother, it can be considered cruelty, which is another strong ground for divorce.

If you are the complainant 🙋‍♀️

If you (the mother, in this case) decide to take legal action, here are the recommended steps:

• Consult a Lawyer: Your first and most important step is to hire an experienced advocate to discuss your rights and options.
• Define Your Goal: Decide what you want as an outcome. Do you want a divorce? Judicial separation? Or do you want to secure your financial future while remaining in the marriage? Your legal strategy will depend on your objective.
• File a Petition: Based on your goal, your lawyer will draft and file the appropriate petition in the Family Court. This could be a petition for divorce on the grounds of adultery and/or cruelty.
• Seek Interim Relief: You can file an application for interim maintenance to cover your expenses and litigation costs while the case is pending. You can also seek injunctions to prevent your husband from selling or disposing of joint assets.

If you are the victim 🧍‍♂️

As the son supporting your mother, your role is crucial. Here’s how you can help:

• Be a Pillar of Support: Your mother is going through immense emotional trauma. Listen to her, validate her feelings, and assure her that she is not alone.
• Facilitate Legal Help: Help her find and communicate with a competent lawyer. Accompany her to meetings and help her understand the legal jargon and procedures.
• Manage Documentation: Assist in organizing all necessary documents—evidence of the affair, property papers, bank statements, loan documents, and proof of your mother’s Stridhan.
• Avoid Confrontation: Do not engage in aggressive confrontations with your father. Let the legal process unfold through your advocate. Any direct conflict could escalate the situation negatively.

How the police behave in such cases 👮‍♂️

Since adultery is not a crime, the police will not register an FIR for the act of cheating itself. Their involvement is limited to specific circumstances:

• Domestic Violence/Cruelty: If your mother files a complaint under the Protection of Women from Domestic Violence Act, 2005, or alleges cruelty under Section 85 of the Bharatiya Nyaya Sanhita, 2023 (BNS), the police will investigate.
• Mediation: Often, the police will refer such matters to the Crime Against Women (CAW) Cell or a ‘Mahila Thana’ for counselling and mediation before registering an FIR for cruelty, in an attempt to resolve the matter amicably.
• Threats or Physical Harm: If there is any threat of physical harm or violence, the police must be informed immediately to ensure your mother’s safety.

FAQs people normally have 🤔

• Can my mother get a share in my father’s property?

  A wife has a right to residence in the matrimonial home and a right to her Stridhan (gifts received before, during, and after marriage). While she doesn’t have an automatic share in her husband’s self-acquired property, the court will ensure a fair financial settlement and alimony/maintenance that considers the husband’s entire estate and standard of living.

• What happens to the joint loan my mother co-signed?

  Legally, both co-borrowers are equally liable to the bank for repayment. However, during divorce proceedings, your mother can argue that the loan was for her husband’s business and he should be solely responsible for it. The court can pass orders directing the husband to indemnify the wife against this liability as part of the overall financial settlement.

• Can my father be forced to stop the affair?

  The court cannot legally force someone to end an affair. The legal remedy available to your mother is to use the affair as a ground to obtain a divorce and secure her financial rights.

What evidence is required? 📂

To prove adultery and cruelty in court, strong, legally admissible evidence is necessary. This includes:

• Digital Evidence: WhatsApp chats, emails, and social media messages. These must be authenticated with a certificate under the Bharatiya Sakshya Adhiniyam, 2023 (the new Evidence Act) to be admissible.
• Photographs and Videos: Any visual proof of the father with the other person in compromising situations.
• Financial Records: Bank statements, credit card bills, and receipts showing expenses on the other person, such as jewelry purchases, hotel stays, or travel bookings.
• Witness Testimony: Testimony from people who have witnessed the affair can be useful, although it is often difficult to find willing witnesses. The son’s testimony about his mother’s suffering would be relevant to prove cruelty.

How long will the investigation take? ⏳

There is no “police investigation” for adultery. The timeline refers to the court case:

• Contested Divorce: A divorce case where both parties do not agree on the terms can be a lengthy process. It can take anywhere from 2 to 5 years, or even longer, depending on the complexity of the case and the court’s workload.
• Interim Orders: The court usually passes orders for interim maintenance and other reliefs within a few months of filing the case to provide immediate support to the wife.
• Mutual Consent Divorce: If, during the process, both parties agree to separate amicably, they can convert the petition to one for mutual consent, which is much faster and is typically granted after a six-month cooling-off period.

Advocate Sudhir Rao, Supreme Court of India