Custody in case of divorce on grounds of adultery

For appointment of any person as guardian, the court shall consider the welfare of the minor. The welfare of the child is determined neither by the economic affluence nor a deep mental or emotional concern for the well being of the child. The answer depends on the balancing of all these factors and determining what is best for the child’s total well being and thus there are numerous occasion wherein Supreme Court has allowed father to retain the custody of child.

In Samuel Stephen Richard v. Stella Richard [AIR 1955 Mad 451], the Hon'ble High Court of Madras in deciding the question of custody held as follows:

"In deciding the question of custody, the welfare of the minor is the paramount consideration and the fact that the father is the natural guardian would not 'ipso facto' entitle him to custody. The principal considerations or tests which have been laid down under Section 17, in order to secure this welfare are equally applicable in considering the welfare of the minor under Section 25.

Above principle had has been reiterated by Supreme Court and various High court across the Country.

 

Regards, 

Advocate Nitin Kapoor

Mob: 8800692624. 

If you could prove adultery charges and get divorce on those grounds it is possible to for you to get child custody of your seven year old but as far as the three year old is concerned court has to decide as usually child custody of a child who is less than five years is not given to father

Yes you will be able to get divorce based on adultery. Yes you should be able to apply for custody but the court will decide as to whether both children will be better off with you or whether they should be given to your wife.

Proving act of adultery is most difficult in the court, however the photographs, videos showing s*x between the parties if remains unrebutted can be considered by the court to allow divorce on the ground of adultery. The circumstantial evidence and eye witness to act of s*x between parties will add to the evidence.

As far the child custody issue, let me inform you the court will allow the physical custody of minor child on any age irrespective if the child is 3 years or 11 years keeping in mind welfare of the child, the plan assumption that child of less than 5 years will go to mother is absolutely wrong and misleading.

The adulterous mother may be bad wife but that does not mean she will be considered as bad mother for the child when it comes to considering the welfare of the children. Court will while deciding the custody issue will check what all evidence exists on record to show father as best parent to hold complete physical custody of both children and what all evidence that show the mother is not fit parent for the same.

The first should be final one.

The first question is have you shared this info with your wife or anyone closer to her?

The second question is Is the house is in your name?

If you have not shared info. Be patient. Play along. If home is yours. Give some reason and shift to rental home. This is very important (rental home closer to current location)

If home is rented then shift to new rental home and don't give the key.

Keep the children with you all time. Deny access to her. Make sure you have a caretaker(if you can take sabbatical . take it) is with children all the time.

 

Lodge a complaint on her beau. Explain it to children and take them into your confidence. Especially elder one. You will have difficulty with younger one. But you can manage.

 

create new marital home and deny access to wife. Then let her play her card.

Yes, custody will be a different issue apart from the issue of adultery, divorce etc.