My husband is having an affair with woman living in UAE. What should I do?
Having an extramarital affair is illegal, punishable in UAE
Questions: I am a 25-year-old Indian woman married to an Indian man and our marriage was solemnised in the UAE. Currently, our divorce proceedings are pending before the court. My husband left for India in April 2019 and since then, I have had no contact with him. I have come to know now that my husband is having an affair with a woman who resides in the UAE. They met in India and stayed together in a hotel there. Can my husband be convicted in the UAE if I furnish the hotel bills related to my husband's stay with another woman in India?
Pursuant to your query, we assume that the divorce proceedings between you and your husband are pending before a competent Personal Status Court (the 'Court') in the UAE which has jurisdiction to hear the matter. Therefore, the provisions of Federal Law No. (28) of 2005 on Personal Status (the 'Personal Status Law of the UAE') and the provisions of Indian Civil Procedure Code of 1908 (the 'Civil Procedure Code of India') are applicable. Further, based on your query related to adultery, the provisions of Federal Law No. (3) of 1987 on issuance of Penal Code (the 'UAE Penal Code'), provisions of Federal Law No. (35) of 1992 related to Criminal Procedure Law of UAE (the 'Criminal Procedure Law of UAE') and the provisions of Indian Penal Code of 1860 (the 'Indian Penal Code') are applicable.
If you and your husband are Muslims, the divorce may be granted as per the Sharia Law and in accordance with the provisions of the Personal Status Law of the UAE. However, if both of you are non-Muslims, you may request the Court in the UAE to apply the Indian personal laws applicable to your religion under which your marriage is registered. This is in accordance with Article 1(2) of the Personal Status Law of the UAE, which states:
(2) The provisions of this law shall apply to citizens of the United Arab Emirates State unless non-Muslims among them have special provisions applicable to their community or confession. They shall equally apply to non-citizens unless one of them asks for the application of his law."
Further, if your husband has appeared himself before the competent court in the UAE in the ongoing divorce proceedings or if he is represented by his lawyer before the Court in the UAE, then the judgment pronounced by it may be valid in India. On the other hand, if your husband has not appeared for any of the divorce proceedings held before the Court in the UAE nor has he been represented by his lawyer then the divorce judgment pronounced by the court may not be valid in India as Indian courts may not recognise foreign courts judgments. This is in accordance with Section 13 of the Civil Procedure Code of India. It states that any judgments passed by the foreign court to be valid in India should be final and conclusive and it mentions the conditions where a foreign judgment is not valid it India. Section 13 of the Civil Procedure Code of India reads as follows:
"A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim to litigating under the same title except:
(a) Where it has not been pronounced by a court of competent jurisdiction;
(b) Where it has not been given on the merits of the case;
(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
(d) Where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) Where it has been obtained by fraud; and
(f) Where it sustains a claim founded on a breach of any law in force in India."
It may be noted that in the UAE, having an extramarital affair or engaging in a relationship (sexual) without being married is punishable by law. This is in accordance with Article 356 of UAE Penal Code, which states:
"Without prejudice to the preceding two Articles, the crime of indecent assault with mutual consent shall be punished by detention for at least one year; and if the crime is committed against a male or female who is under 14 years of age, or if the crime is committed by coercion, it shall be punished by temporary imprisonment."
Adultery is not a criminal offence in India since September 27, 2018 as the Supreme Court of India has repealed Section 497 of the Indian Penal Code related to adultery. But the Supreme Court of India in its judgment states adultery may be used as a ground for divorce. You have alleged that your husband is having an affair with a woman who is a resident in the UAE and she stayed with your husband at a hotel in India. The alleged crime was committed in India and therefore, the jurisdiction for any legal proceedings shall be in India and not the UAE. This is in accordance with Article 16 of the UAE Penal Law, which states:
"Provisions of this law shall apply to any one who commits a crime within the territory of the State. The territory of the State shall include its lands and any place under its sovereignty, including territorial waters and air space above them.
A crime shall be considered to be committed in the territory of the State if any of its constituent acts occurs therein, or if its result has been realised or is intended to be realised therein."
Further, Article 142 of the Criminal Procedures Law of UAE, states:
"Jurisdiction shall be determined by the place where the crime occurred."
Therefore, based on the aforementioned provisions of law you may not be in a position to file a criminal complaint in the UAE against your husband and his girlfriend.
Mere submission of hotel bills of your husband as evidence to the Court in the UAE or any family court in India that he was staying with another woman in the same hotel may not be considered as sufficient proof for the application of your divorce on grounds of adultery either in India or in the UAE. You may need to provide witnesses and other documentary evidences such as photos, videos, emails and messages exchanged between your husband and his girlfriend to prove the existence of a sexual relationship between them and convince the court. It is recommended that you approach a legal counsel, both in India as well as in the UAE, for further legal advice on this matter
Know the law
A crime shall be considered to be committed in the territory of the UAE if any of its constituent acts occurs therein, or if its result has been realised or is intended to be realised therein.
Ashish Mehta is the founder and Managing Partner of Ashish Mehta & Associates. He is qualified to practise law in Dubai, the United Kingdom and India. Full details of his firm on: www.amalawyers.com. Readers may e-mail their questions to: firstname.lastname@example.org or send them to Legal View, Khaleej Times, PO Box 11243, Dubai