Adultery claim can stop interim maintenance only on clear, ex-facie proof, rules Supreme Court

Himanshu Chordia married Arushi Jain on 7 July 2014. Following matrimonial discord, Arushi left the matrimonial home on 13 May 2020 with the parties’ child and subsequently filed proceedings under Section 125 CrPC for maintenance, along with an application for interim maintenance.

The appellant alleged that Arushi was living in adultery and therefore was disqualified from claiming maintenance under Section 125(4) CrPC. He relied, inter alia, on photographs, videos and other electronic material, and also sought production of further records under Section 91 CrPC.

The Trial Court rejected the appellant’s applications under Sections 125(4) and 91 CrPC, holding that the authenticity and originality of the electronic material could be determined only after evidence was exhibited in the main maintenance proceedings.

It thereafter awarded interim maintenance of ₹25,000 each to Arushi and the parties’ son.

The High Court upheld the approach that the allegation of adultery was a disputed question of fact to be adjudicated only at the final stage of the Section 125 proceedings.

The appellant challenged that decision before the Supreme Court.

1. Whether an application under Section 125(4) CrPC alleging that the wife is living in adultery can be decided before the final adjudication of the maintenance application, including at the interim-maintenance stage?

2. Whether the mere pendency of an application under Section 125(4) CrPC automatically bars or suspends payment of interim maintenance under the second proviso to Section 125(1) CrPC?

3. Whether photographs, videos and other electronic material relied upon to establish adultery must be examined for authenticity, legality and admissibility, including compliance with Section 65-B of the Evidence Act, 1872 or its equivalent under the Bharatiya Sakshya Adhiniyam, 2023?

The Court applied Section 125 CrPC, particularly the second proviso to Section 125(1), which authorises interim maintenance; Section 125(4), which disqualifies a wife who is living in adultery, refuses without sufficient reason to live with her husband, or lives separately by mutual consent; and Section 125(5), which requires cancellation of an existing maintenance order upon proof of those circumstances.

Proceedings under Section 125 are summary, civil in substance, secular and intended to prevent destitution and vagrancy; the applicable standard is not proof beyond reasonable doubt.

The Court relied on, among others, Dwarika Prasad Satpathy v. Bidyut Prava Dixit, Chanmuniya v. Virendra Kumar Singh Kushwaha, Rina Kumari v. Dinesh Kumar Mahto, Chaturbhuj v. Sita Bai and Mohd. Abdul Samad v. State of Telangana for the nature and purpose of maintenance proceedings.

It held that a Section 125(4) application constitutes a distinct stage between the initial maintenance application and final adjudication, and that interim maintenance may continue while the allegation is being tested unless adultery or another statutory disqualification is established ex facie by clear and cogent evidence.

Electronic evidence must also satisfy the applicable requirements concerning relevance, source, authenticity, accuracy and admissibility, including Section 65-B of the Evidence Act, 1872 or the corresponding law under the Bharatiya Sakshya Adhiniyam, 2023.

The Supreme Court held that the High Court and Trial Court erred in treating the adultery allegation as incapable of determination until final disposal.

Section 125(4) expressly refers not only to final maintenance but also to “interim maintenance”; therefore, where the material produced by the husband establishes adultery on its face, or the relevant disqualification is admitted, interim maintenance may be refused or discontinued immediately.

However, the filing of a Section 125(4) application does not, by itself, suspend interim maintenance. Where the allegation depends upon disputed, circumstantial or electronic evidence requiring verification, interim maintenance ordinarily continues until the Section 125(4) application is decided on its merits.

In the present case, the Trial Court wrongly dismissed the Section 125(4) application at the threshold on the ground that the electronic material could be assessed only during final adjudication.

It ought instead to have examined whether the photographs, videos and other material established adultery ex facie, while permitting Arushi to contest their authenticity, legality and evidentiary value.

The Court additionally expressed concern regarding the unregulated use of private investigators, including privacy violations, possible fabrication or alteration of material, data protection and the safeguards required for electronic evidence.

Interim maintenance is not automatically barred merely because a Section 125(4) application is pending; it may be stopped at the interim stage only where adultery or another statutory disqualification is established ex facie through clear and cogent evidence.

The Supreme Court set aside the High Court’s order dated 4 February 2025 and remanded the matter to the Trial Court to decide the appellant’s Section 125(4) application on its merits.

It also directed that a copy of the judgment be sent to the Ministry of Law and Justice and the Law Commission of India for consideration of an appropriate regulatory framework governing private investigation agencies.

The appeal was accordingly allowed.