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

Mr. Verma, a man in his late fifties and a retired professional living in a large city, has created a distressing environment for his family. His children, Sameer and Priya, along with their mother, Mrs. Verma, have been aware of his extramarital affairs for years. During their childhood, they felt powerless due to their financial dependence on him. Now, as independent adults, they have discovered that he is involved in another secret affair with a married woman.

The family has confronted Mr. Verma on several occasions. Each time, he has apologized and promised to end the affair, only to continue his deceitful behavior. The situation recently escalated, leading to a heated argument where Priya, feeling overwhelmed, attempted to leave the family home. However, Mr. Verma manipulated his wife, who persuaded Priya to stay, citing concerns about societal judgment and her future marriage prospects. The final straw came when Mr. Verma went on a trip, and Priya discovered more incriminating digital messages on his phone. The family finds it incredibly difficult to live with him while he engages in this behavior and simultaneously acts as the authoritarian head of the household.

The children are now contemplating their next steps. They are considering informing the other woman’s husband and family about the affair but are fearful of the potential consequences, such as violence or self-harm within that family. They feel that their only other option is to sever all ties with their father, but they worry that he might use his connections to harass them and force his way back into their lives.

Advice in such cases

Dealing with infidelity within a family is emotionally taxing and legally complex. Here is some general advice:

• Prioritize the emotional and mental well-being of yourself and your mother. Seek counseling or therapy to process the trauma and make clear-headed decisions.
• Document everything. Keep a secure record of any evidence of the affair, such as messages, call logs, or photographs. Also, document any instances of verbal abuse, manipulation, or harassment.
• Avoid any direct confrontation or communication with the other woman or her family. This can lead to unpredictable and dangerous outcomes and could potentially expose you to legal claims of harassment or defamation.
• Consult with a Lawyer: The very basic and important step to start is to talk to a Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in the range of Rs. 10,000 to 50,000, depending on the case. He is helping you in this situation to come out. He is an 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

In India, the legal landscape regarding adultery has changed significantly. It’s crucial to understand the current laws:

• Adultery is Not a Crime: The Supreme Court of India, in the case of Joseph Shine v. Union of India, decriminalized adultery. This means that having an extramarital affair is no longer a criminal offense for which someone can be imprisoned. Therefore, you cannot file a police complaint against your father or the other woman for the act of adultery itself.
• Grounds for Divorce: While not a crime, adultery remains a valid and strong ground for seeking a divorce under Section 13(1)(i) of the Hindu Marriage Act, 1955. Your mother can file for divorce on this basis.
• Cruelty: If your father’s behavior causes mental or emotional harassment, it may amount to “cruelty,” which is also a ground for divorce. If it escalates to severe harassment, it could potentially fall under Section 86 of the Bharatiya Nyaya Sanhita (BNS), 2023, which deals with cruelty by a husband or his relatives.
• Maintenance: Your mother has a legal right to claim maintenance from your father, both during divorce proceedings and after. This is governed by Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023.
• Right of Residence: Your mother has the right to reside in the “shared household,” which is the matrimonial home, under the Protection of Women from Domestic Violence Act, 2005.

If you are the complainant

As the children of the family wanting to protect your mother, here are the steps you can consider:

• Gather and preserve all evidence of the affair discreetly. This is crucial if your mother decides to file for divorce.
• Encourage your mother to understand her legal rights regarding residence, property, and financial maintenance.
• Consult with a Lawyer: The very basic and important step to start is to talk to a Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in the range of Rs. 10,000 to 50,000, depending on the case. He is helping you in this situation to come out. He is an 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.
• Focus on supporting your mother emotionally and financially, empowering her to make a decision that is best for her safety and dignity.

If you are the victim

If you are the wife (like Mrs. Verma) in this situation, it is important to know your rights:

• You have the right to file for divorce on the grounds of adultery and/or cruelty.
• You are legally entitled to claim financial maintenance from your husband to support yourself, irrespective of whether you file for divorce.
• You cannot be forced to leave your matrimonial home. The law protects your right to reside in the shared household.
• Consult with a Lawyer: The very basic and important step to start is to talk to a Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in the range of Rs. 10,000 to 50,000, depending on the case. He is helping you in this situation to come out. He is an 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

The police generally do not get involved in matters of marital infidelity. Since adultery is not a criminal offense, they will not register a First Information Report (FIR) for it. They will rightly state that it is a civil matter to be decided by the family courts. However, the police are obligated to act if a complaint is filed for a cognizable criminal offense, such as:

• Domestic Violence or Cruelty: If the father’s actions escalate to physical violence, or severe mental and emotional abuse, a complaint can be filed.
• Criminal Intimidation: If he threatens you or your mother with harm for wanting to leave or take legal action.

While your father may have “connections,” these cannot override the law if a formal complaint is filed with proper evidence. A lawyer can guide you on how to approach the police correctly to ensure your complaint is taken seriously.

FAQs people normally have

• Can we file a police complaint against my father for cheating?
  No, you cannot file a police complaint for the act of adultery. It is a ground for divorce, not a crime. You can only approach the police if his behavior involves criminal acts like violence, threats, or severe harassment.
• Can we inform the other woman’s husband?
  It is strongly advised not to. This action is unpredictable and can lead to serious repercussions, including violence or false counter-allegations against you. It is best to let your lawyer handle all communication and legal strategy.
• What are my mother’s rights to the property?
  Your mother has the right to live in the matrimonial home. In the event of a divorce, the division of property depends on whether it is ancestral or self-acquired by your father. A lawyer can provide a detailed analysis based on the specifics of the assets.

What evidence is required?

To prove adultery in a divorce case, you need substantial evidence. The standard of proof is high. Legally admissible evidence can include:

• Digital communications like text messages, emails, and social media chats.
• Photographs or videos showing the spouse and the third party in a compromising position.
• Call records showing frequent and long conversations, especially at odd hours.
• Testimony from witnesses who have seen them together in private situations.
• Bills from hotels, travel tickets, or receipts for gifts.

How long will the investigation take?

There is no “investigation” for adultery by the police. The process is handled through the family court if a divorce petition is filed. The duration of a divorce case can vary widely:

• A mutual consent divorce can be finalized in 6 to 18 months.
• A contested divorce, where one party fights the case, can take several years, depending on the complexity of the case, the evidence presented, and the court’s schedule.

If a criminal complaint for cruelty or another offense is filed, the police will conduct an investigation as per the procedures laid out in the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, which includes timelines for investigation and filing a final report (chargesheet) before the court.

Advocate Sudhir Rao, Supreme Court of India