Wife can be denied interim maintenance if adultery is clearly established: Supreme Court

The Supreme Court recently held that a wife can be denied interim maintenance under Section 125 of the Code of Criminal Procedure (CrPC) if her husband establishes that she is living in adultery [Himanshu Chordia v. State of Rajasthan & Anr].

However, a bench of Justices Sanjay Karol and Vipul M Pancholi clarified that such adultery should be clearly proved on the face of it and only then would the bar on interim maintenance apply.

The Court was hearing a plea by a man (husband) against grant of interim maintenance to his wife.

The courts below had held that the husband's application under Section 125(4) CrPC could be decided only at the stage of final adjudication of the maintenance proceedings.

Section 125(4) bars a wife who is living in adultery from receiving interim or final maintenance from her husband.

“Since the stipulation in Section 125(4) is that if adultery is proved, the wife would neither be entitled to interim nor final maintenance, we are of the view that if a husband files an application under Section 125(4) and is, at the first instance, able to establish the charge through evidence ex facie, then only, there can be said to be a bar to interim maintenance,” the Supreme Court said.

The case arose from a matrimonial dispute between the couple who married in July 2014. The relationship became strained a few years into the marriage, and the wife eventually left the matrimonial home in May 2020, along with their child.

In November 2020, she moved a court in Udaipur seeking maintenance under Section 125 CrPC and also sought interim maintenance.

During the proceedings, the husband filed an application under Section 125(4) CrPC alleging that his wife was living in adultery and was therefore, not entitled to interim maintenance. He relied on photographs and other electronic evidence to support his claim.

The trial court declined to decide his application at that stage, observing that the authenticity and originality of the material could be determined only after the evidence was formally exhibited in the main maintenance proceedings.

It subsequently awarded ₹25,000 each as interim maintenance to the wife and their son.

The Rajasthan High Court declined to interfere with the trial court's decision to dismiss the husband's application under Section 125(4) CrPC.

The husband then approached the Supreme Court.

The top court disagreed with the approach adopted by the courts below.

It found that the trial court had erred in refusing to decide the husband's plea under Section 125(4) before the final adjudication of his wife's maintenance case.

Therefore, the matter was remanded to the trial court to decide the application on merits.

The case also prompted the Court to flag the absence of regulation governing private investigators in India.

The husband had produced around 92 videos and 237 photographs allegedly showing his wife pursuing a relationship outside the marriage. The manner in which the material had been obtained led the Court to suspect that private investigators or detectives may have been engaged.

The Bench raised questions about who had taken the photographs and whether they were authorised to do so. It also expressed concerns over how such material was stored and the possibility of photographs and videos being doctored or morphed using technology.

The Court said such practices also raised concerns relating to the right to privacy and protection of personal data. It observed that there must be limits on what private investigators can do and a mechanism to address complaints where investigators overstep professional boundaries and violate individual rights.

"There has to be a mechanism in place to deal with the evolving methods of evidence collection," the Court observed.

The Court noted that a Bill seeking to regulate private detective agencies had been introduced in Parliament in 2007.

It ultimately directed that a copy of its judgment be sent to the secretary of Ministry of Law and Justice and the chairman of the Law Commission of India to consider the issue of regulation of private investigators.

[Read Judgment]