Why it is important to save evidence against your spouse who’s cheating on you

Raksha Bharadia
recording of calls

He cheated on her and destroyed the evidence

Saloni’s husband of 11 years decided to brand her mentally unfit, threw her out of the house and took custody of the children when Saloni objected to his affair with his secretary, a decade younger than him. Saloni had found many mails, posts, messages and bills which could have proved incriminating in the court but she had believed him when promised that he would put an end to it all, that his heart lay with her and his family! He took his time to decide who he really wanted to be with and picked his secretary and kids. He systematically erased/destroyed all evidence of his affair and when sure that his record was clean he slapped her with the divorce notice. In court he proved that she was mentally unfit and could do harm to herself and the people around her.

Saloni told me in the interview, “I have not seen my children in more than 12 years. I struggled to find myself, my place in this world, my work. It took me a long time to understand that it was not me who was wrong, it was him.” Saloni was suicidal for a year after her husband continued his relation with his paramour and at every opportunity made it seem as if it was her fault, as she was dumb, un-smart, fat…. “Now I help empower women by encouraging them to study more and qualify for higher pay grades in the school where I teach. I’m happy with my life, but yes, I deeply regret missing out on my children,” she said with a sadness I knew was at least a decade old.

Related reading: His wife was having an affair but she denies it. Readers suggest what he should do next

Don’t make the mistakes I made

“I wish I had not been so gullible. I wish my parents had told me not to treat my husband as God, to make peace even when he never took steps to correct his mistakes. That I had stood up to his lies. I wish I had kept proof of his infidelity so that he would not have used my depression caused by his actions as the reason to rip my children off me. I was left without money, home, children, dignity and even sense of self for a long time.”

Safeguard yourselves ladies!’ She wanted me to convey to the women out there. “Yes, most affairs die a natural death, but what of those that don’t? Or what if your husband would not stop? What if, like me, you can’t accept it and he decides to throw you out simply because he can. Because you do not earn, he does. The house is not in your name, but his. Because you know nothing about his financial records, for you never needed to. Because you do not even file your own returns, he does. Do not make the blunders I made. Be smart. Be alert. There are many things you can do to protect yourself.”

“Be smart. Be alert. There are many things you can do to protect yourself.”

After a long discussion and a longer one with our panellist Nandish Thackar who specialises in divorce cases, we came up with some do’s and don’ts and what is acceptable as evidence in courtrooms of India and what isn’t. He spoke of the rights women have and what is needed for them to claim those rights. I even spoke to a few counsellors and the following information is a combination of them all.

When you see signs of an affair do not lie to yourself that there is none

i think no

Representative Image source

Women have that sense. You will know that something is not quite right – maybe he has started shaving his chest which he never did before, or is suddenly busy in late-night meetings. Maybe you caught a message that was off, a friend who tried to tell you subtly or some inconsistency in his story on where he had been. Trust that voice.

Related reading: Signs your husband is having an affair

But do not just go to him with your feeling. Collect evidence first

Adultery is difficult to prove in court and the evidence must be irrefutable. Proof that can’t be explained away with ‘you are psycho suspicious’, or that ‘we are just friends’.

Two things can happen when a woman accuses a man without enough support.

  1. She accuses him and he denies it. The husband can make the wife feel guilty for thinking this way. Dr Rima Mukherjee, psychiatrist and our panellist, said, “You will doubt yourself and believe him. Please do not beat yourself up over this. You love him and most would want to believe that they were somehow mistaken. Accept that your heart will favour him, but use your head. Keep your eyes and ears open. He will be more careful and cover his tracks better, but if there are inconsistencies in his stories, there is more to it than meets the eye.”
  2. She accuses him and he accepts it. He breaks down, admits to the relationship and promises to end it. Again, two things can happen here. He may actually end the affair, but then he may not. In both situations, the aggrieved partner must have solid evidence to back her claim with, whether she decides to use it or not.

Related reading: My divorce was not by choice. It was forced on me

How can you collect evidence?

  • Keep a journal of the partner’s ‘reported’ activities. Write down the times, dates, places, other people involved, excuses given, etc. Phone conversations, though not direct evidence, can become secondary evidence when corroborated with other mismatch of facts presented. This can turn into circumstantial evidence. Compare what’s said with phone bills, other people, credit card statements, ATM withdrawals, etc.
  • Hire a private detective and get pictures for proof.
  • Spyware to GPS trackers, etc. can be installed and used in courts as circumstantial evidence.

Why should you go to these lengths?

If things go the wrong way, your spouse (having an affair) may slam you with a defamation suit for the charge you brought up. The cheating partner can also file a divorce case claiming mental or physical cruelty and other forms of violence before the real victim can even gather his/her wits.

Case study

This man, let’s call him R, caught his wife in a close relationship with his best friend. The driver spilled the beans by giving the husband the apartment address where the two would meet. While R was still coming to terms with his wife and was still in the accusatory and hurt phase, his wife D took the children and vanished. The next day the police landed at their house with an arrest warrant for torture and domestic violence. This dragged on for six years after which R gave a divorce and a handsome alimony to his wife just to be able to see his kids again. Having got the opportunity, she had deleted all proof of her affair. The driver left the job after being paid a handsome amount to keep mum by the wife’s rich lover. The husband sadly lost custody of his children.

What counts as evidence against your spouse who is having an extramarital affair

  1. Contraction of a venereal disease by the unfaithful spouse
  2. Confessions and admissions – if the spouse admits to adultery in a recorded conversation.
  3. Evidence of visit(s) to a brothel
  4. Birth of an illegitimate child/Paternity test report of that child
  5. Any communication, photographs, videos with the paramour can be considered as evidence. Since it is very difficult to get evidence on them in the act or some direct confessions, adultery can be generally proved by producing presumptive evidence like circumstantial evidence. Chat messages laden with sexual overtones on WhatsApp, Facebook, even Google Talk are permissible evidence, but they have to be corroborated with primary evidence such as witness deposition

Remember: Even if the calls have been deleted by the cheating partner, the aggrieved can apply to the court to call for the call details records (CDR) to show the communication. For hotel payment receipts, one has to apply to the police to investigate. In the case of an FIR, if the police don’t act efficiently, then the court can intervene and pass such orders. Thackar says, “If the husband has checked into a hotel with his lover and they stayed in the same room it would be evidence of adultery. You can contact the hotel and get the evidence of the stay with payment receipt. However, if they checked into separate rooms, adultery cannot be proved.”

  1. Graphic emails confirming an extramarital affair or a log of a spouse’s visits to a new lover’s home can also prove incriminating

Remember: Try to send the chats to the e-mail registered with the number and then transfer them to your e-mail. Or send to a cloud storage you have access to.

  1. Videos of the two concerned persons, intimate or otherwise, showing some connection

affair - cheating

What is not evidence of an extramarital affair

  • Long phone conversations, unless they speak of the intimate act and having committed it.
  • The evidence they are in the same city at the time, but not in the same room.

Nandish Thacker says, “Adultery as contemplated under the Hindu Marriage Act, 1955, is one of the grounds for divorce:

Section 13. Divorce- (1) Any marriage solemnised, whether before or after the commencement of the Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party-

(i) has, after the solemnisation of the marriage had voluntary sexual intercourse with any person other than his or her spouse…

Section 497 of the Indian Penal Code (IPC) states:

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, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.”

One can file for maintenance even while waiting for the divorce to come through for self and children under section 125 of the CRPc.

For further queries, you can write to our divorce lawyer here.

11 Ways To Remain Sane During a Divorce

How to react to your partner’s extramarital affair

15 signs your husband is cheating on you with a co-worker

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1 comment

Pooja Priyamvada
Pooja Priyamvada June 2, 2018 - 6:41 pm

This is such a well researched and well written post.

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