Cheating wife. How to get divorce from and keep custody of children?

The facts provided by you reflect that your wife is in an adulterous relationship with another man.

Indian law treats adultery as an offence under Section 497 of Indian Penal Code, wherein the man into an adulterous relationship is punishable with imprisonment which can be extended for a period of 5 years.

Section 497 of Indian Penal Code, 1860 reads as under:

"Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery."

In view of above, you have an option to make a criminal complaint against the adulterer (the person with whom your wife is having affair) by invoking the penal section 497 and 499 of Indian Penal Code before the appropriate criminal court in India.

Further, under Hindu Marriage Act 1955, (assuming you are a Hindu) adultery is one of the grounds for seeking divorce.

Section 13 of the Hindu Marriage Act provides the various grounds on which divorce can besought by one of the parties to a marriage. It is as follows: 

Section 13(1) states that a petition may be presented by either the husband or the wife, for dissolution of marriage by a decree of divorce on the ground that the otherparty-

i. has, after the solemnization of the marriage, had voluntary, sexual intercourse with any person other than his or her spouse; or

a. has, after the solemnization of the marriage, treated the petitioner with cruelty; or

In view of aforesaid , you can file a divorce petition under Section 13 (1) (i) and Section 13 (1) (ia) on the grounds of adultery and cruelty, and seek dissolution of marriage. It is pertinent to mention here, that to prove adultery is generally very difficult, wherein the onus of proof is usually on the petitioner and you need to have strong and cogent evidence to prove that she has committed adultery. The evidence stated in your query will have to be examined to conclude whether they are strong and cogent evidence to prove adultery.

With respect to maintenance, your wife may file an application under  Section 24 of Hindu Marriage Act or Section 25 of the Hindu Marriage Act.  However the court has ample of discretion to grant or refuse maintenance and the extent to which to grant the same, depending on the facts and circumstances of each case. But an adulterous conduct on the part of wife after the decree of divorce is passed would certainly negate her claim to get maintenance allowance in future. It is pertinent to mention here,  that there are many  instances where Courts has  refused to give maintenance, or any allowance to wife, where adultery is proved.

Further, with respect to custody of your children, both your children are minor and you need to file a petition for the custody of the children. Section 6 of The Hindu Minority and Guardianship Act states that the ‘natural guardian of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property …. in the case of a boy or unmarried girl is the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother.

For appointment of declaration 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.

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