Adv. Pratibha Bangera (Divorce and Family court lawyer) explains how a court looks at relationship between husband wife and the other party with our Editor-in-Chief Dr Vaidehi Taman.
What is an extramarital affair ?
An extra marital affair can be either an emotional or sexual infidelity by a married man or woman.
What is Adultery and how is it different from Bigamy?
Sexual infidelity or having sex outside marriage is Adultery and re-marrying without taking divorce is Bigamy and such marriage is illegal.
Can the court punish a person committing adultery?
Until recently adultery was a criminal offence where only husband could complain against wife’s adulterous male accomplice or “other man”. But in case of a wife whose husband had strayed, she could not complain against the other woman. This was seen as gender bias. Giving more power to only the man to treat his wife as property while a wife in similar situation could not file an adultery case against the other woman. It defied the principle of equality.
The law has changed since 2018 and it is now no more an offence and there cannot be a criminal charge and there is no more imprisonment for people caught with adultery. But it still has civil legal repercussions and there could be damages or compensation to pay gor. And in some cases if adultery is proved, the court may even cancel the maintenance amount or child custody.
However, bigamy is still an offence. It is not only punishable with 7 years imprisonment but the court may order that the victim spouse should receive compensation for such acts.
Does the second husband or wife have any legal right to property ?
When the marriage itself is illegal, the question of legal right will not arise. Unless there was a deceitful marriage where the victim did not have knowledge and it could also amount to rape. However children born out of such marriages are legitimate and can bear their fathers name and also have a right or share in fathers property after his demise.
What about pension rights in case of death of spouse having married twice?
Only the first wife/ husband (spouse) can claim pension or share in property of such deceased spouse. In such conflicting cases, the legally wedded spouse may have to apply for succession certificate.
What if the second spouse has children out of the illegitimate marriage ?
Every child born to parents legitimate or otherwise has a right to share in property of both parents after their death. The deceased spouse’s property will be distributed as per line of succession and family tree of such person.
Has the number of adultery cases increased in recent years?
Yes indeed, not only has it increased but the trends have also changed. There is increasing number of divorce cases filed by husband as well.
What is the kind of evidence required to prove an adultery case?
Proof should be enough to hint at a sexual relationship such as hotel booking receipts, travel ticket or passport entries, telephone itemized bills with date and time, cosy photographs posted on social websites, testimony of witnesses or family members or neighbours, CCTV camera footages, photographs entering or exiting from some place (supported and obtained from RTI commissioner of local area. Sometimes even a self admission of adultery on paper or chats or before a witness can be useful evidence for the case. However all remedies only lead to RCR (restitution of conjugal rights) or divorce.
Can a person hire a detective for gathering such kind of evidence?
Proof from unreliable sources may be rejected if they are found to have been collected unethically by hacking or using illegal devices for tracking. It may even be treated as violation of privacy which is a crime and sometimes violate Telegraph Act or cyber crime. In most cases it is not even necessary but a lot of litigants get misled and waste their precious time, energy and money in gathering proofs and attempt to hold family meetings in fear of facing up to the challenging situation. This can only delay their matter and in the long run such proof may not even be useful.
The family court has alternate remedies such as counseling and mediation where such issues are brought forth for finding solutions even for divorce settlement to expedite the time frame so that there is less heart burning.
It is not fair that a person victimized due to a philandering spouse should be put to any further pain. The court grants divorce along with financial compensation as per the life style standards of the family.
Can a wife cheating on her husband claim maintenance from her husband?
If adultery is proven, it may be difficult for the woman to win maintenance for herself from the husband if she has not maintained chastity.
What about child’s maintenance and custody?
The court at all times is concerned about the child’s highest safety and well being which includes financial stability. In such cases the court has power to take any decision in favour of child’s highest betterment.
What are the remedies available for second wife or husband who married without knowledge of earlier existing marriage?
It is a punishable offence to cheat someone and get married without getting a divorce and the jail term for cheating an innocent person into marriage is upto 10 years along with compensation by way of fine or damages.
Marriage and property are separate issues. In such cases, the legally wedded spouse may have to file separate case for a restraining order of court on such property or even proceed to attach income from such property.
Has there been any case of punishment for adultery or bigamy in India so far?
Criminal sections in family matters can be withdrawn at any time with permission of court. Hence most of these matters are settled and no there are not many cases or precedents to quote.
