The Allahabad High Court recently said that a husband cannot merely rely on social media messages to establish that his wife is continuously “living in adultery” without corroborative evidence of physical intimacy or cohabitation.

Justice Jai Krishna Upadhyay was dealing with a husband’s plea challenging the grant of maintenance to his wife. The husband’s primary argument was that his wife was disentitled from claiming any maintenance as she is “living in adultery”. In this regard, he placed reliance on printouts of Instagram chats alleged to have taken place between her and an advocate, with whom she is allegedly in an adulterous relationship.

However, the Court said that the husband has to prove a continuous “adulterous lifestyle” of his wife to deny maintenance to her. It said that Instagram chats were not sufficient to establish the alleged adultery.

“Even if, for the sake of argument, the contents of the unverified chats were to be perused, mere text messages on a social media platform, without corroborative evidence of physical intimacy or cohabitation, are thoroughly insufficient to legally establish that the wife is continuously "living in adultery",” the Court said.

It explained that “living in adultery” – a ground for denying maintenance to a wife under Section 125 of the Code of Criminal Procedure (CrPC) or Section 144 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) – denotes a continuous, ongoing and habitual course of adulterous conduct.

“It does not encompass a single, fleeting lapse, nor can it be inferred from mere conversational interactions, professional associations, or unsubstantiated suspicions. For a husband to successfully non-suit a wife's claim for maintenance at the threshold, he must present clear and cogent evidence,” the Court added.

It also observed that electronic evidence requires strict verification in accordance with Section 65-B of the Indian Evidence Act due to the inherent vulnerabilities of digital data. In the present case, it said, the husband had not produced the mandatory statutory certification. 

Having found that the messages exchanged on Instagram were not sufficient to establish the accusation of “living in adultery”, the Court dismissed the husband’s challenge against a family court order directing him to pay maintenance to his wife.

Advocate Devdeep Malviya represented the petitioner.

Advocate Ashutosh Upadhyay represented the respondent.

[Read Order]