Under Section 125(4) of the Code of Criminal Procedure, 1973, must an allegation of adultery raised to defeat a maintenance claim always be decided only at the stage of final adjudication?

Leave granted.

The question in this appeal is best explained by way of an illustration: A and B are husband and wife. Due to strained relations between them, they began living separately, and B filed for maintenance. One of the primary reasons, as alleged by A for their separation, is the promiscuity of B and her adulterous relationship with other people. In such a scenario, is A obligated to pay B interim or final maintenance?

The factual and legal backdrop of this appeal is as follows:

We have heard the learned Counsel for the parties. In order to adjudicate the correctness of the finding in the High Court, we must first consider the object of maintenance; the nature of proceedings under Section 125 of the CrPC; and the contours of Section 125(4). Only thereafter can we consider the question whether the issue of adultery, as it appears in Section 125(4), can be decided as a preliminary issue or is it only capable of decision at the time of final adjudication.

The basic idea behind the grant of maintenance, regardless of the legislation in which this right appears, is to ensure that neglect and destitution are prevented for people who are unable to provide for themselves, for instance, a spouse, child or even parents, by imposing an obligation under law upon those who can, or have sufficient means to, provide for those who are unable to maintain themselves. Such law is intended to ensure that individuals unable to provide for themselves have means of securing the essential aspects of a dignified life. It is a means of implementing accountability for those persons who ignore their responsibilities towards family members and dependents. Section 125 reads thus :

A perusal of various decisions rendered by this Court over time reveals the following features of proceedings under Section 125 CrPC: 6.1 Proceedings under this section are summary in nature, designed to be speedy, aimed to avoid difficulty on the part of the seeking party. In other words, it seeks to prevent vagrancy and destitution. [See: Dukhtar Jahan v. Mohd. Farooq[^3]; Vimala (K.) v. Veeraswamy (K.)[^4]; Nagendrappa Natikar v. Neelamma[^5]; Danial Latifi v. Union of India[^6]; Rajnesh v Neha[^7]] 6.2 Maintenance proceedings are essentially civil in nature. Thus, the standard of proof applicable is not beyond reasonable doubt as would be in other criminal matters. [Dwarika Prasad Satpathy v. Bidyut Prava Dixit[^8]; Chanmuniya v. Virendra Kumar Singh Kushwaha[^9]; Kamala v. M.R. Mohan Kumar[^10]; Rina Kumari v. Dinesh Kumar Mahto[^11]; Iqbal Bano v. State of U.P.12] 6.3 Only such person who is unable to maintain herself may seek maintenance hereunder. [See: Bhagwan Dutt v. Kamla Devi[^13], Chaturbhuj v. Sita Bai[^14]] 6.4 The wife seeking maintenance must show that she is unable to maintain herself and concomitantly show that the husband has the means to do so. [See: Mohd. Ahmed Khan v. Shah Bano Begum[^15]; Mohd. Abdul Samad v. State of Telangana[^16]] 6.5 The provision does not recognise any religion and applies to all parties irrespective of the religion they profess. [See: Mohd. Abdul Samad(supra)] 6.6 The order made under this Section is subject to final determination by the Civil Court. [Inderjit Kaur v. Union of India[^17]; Mohd. Abdul Samad (supra)] 6.7 A decree of restitution of conjugal rights does not bar the payment of maintenance under this Section and would not count as disqualification under clause 4 thereof. If the wife refuses to comply, it has to be seen on the facts whether such refusal is justified. [See: Rina Kumari (supra)] 6.8 A decree of divorce does not foreclose the relief under Section 125 CrPC. Section 125(4), which is an exception to the general rule under this section, does not include within its ambit a divorced woman. [See: Vanamala v. H.M. Ranganatha Bhatta[^18], Swapan Kumar Banerjee v. State of W.B.19]

It cannot be gainsaid that the provision is oriented towards social justice; it is secular; and is aimed at providing a sense of sustenance with dignity for those who are unable to provide for themselves. Given its beneficent nature, the principles that govern an application made under this Section, culled out supra, have to be interpreted liberally, keeping in view the desired goal.

A perusal of the CrPC reveals that the stipulation under Section 125(4) was inserted vide amendment in 2001. This indicates that the legislature sought to address a situation where there is, among other possibilities, adultery on part of the wife. The Statement of Objects and Reasons of the said amendment read as under: “It has been observed that an applicant, after filing application in a court under section 125 of the Code of Criminal Procedure, 1973, has to wait for several years for getting relief from the court. It is, therefore, felt that express provisions should be made in the Code for interim maintenance allowance to the aggrieved person under said section 125 of the Code. Accordingly, it is proposed that during the pendency of the proceedings, the Magistrate may order payment of interim maintenance allowance and such expenses of the proceedings as the Magistrate considers reasonable, to the aggrieved person. It is also proposed that this order be made ordinarily within sixty days from the date of the service of the notice…” (emphasis supplied)

As already reproduced supra, a perusal of the clause suggests maintenance shall be denied if the wife lives in adultery or without any sufficient reason refuses to live with her husband or is living separately by mutual consent. The text of the statute itself points to the answer to the question raised in this appeal. Sub-section (4) of Section 125 provides that if adultery is established, the wife claiming maintenance would not be entitled to the same as an interim measure and therefore, obviously, not even as a final measure. Sub-section (5) thereof makes it even more obvious.

Once a petition under Section 125(1) is made before the concerned court, and the person from whom maintenance is sought makes an application under Section 125(4), determination thereof, would depend upon the facts and circumstances of each case; as also the kind of evidence presented in reference to application filed under Section 125(4); whether the interim maintenance so granted to the applicant under the proviso to sub-section (1) of Section 125, would continue to obtain or not.

The second proviso to Section 125(1) makes provision for interim maintenance and expenses of proceedings. It is clear therefore that the intent is for the maintenance allowance to reach the applicant expeditiously. It cannot be said as such, that once an application under the latter Section 125(4) has been made, even the payment of interim maintenance in the interregnum, till such application is decided, will be stopped. If it is concluded that the said application has merit, then the interim order would be vacated. If it is concluded otherwise, the interim order would be confirmed/modified. To put it plainly, the pendency of a 125(4) application would not per se bar the applicant from receiving interim maintenance on the ground that the said sub-section uses the word ‘interim maintenance’ also. If such a view is accepted, the payment of maintenance would be perpetually contingent on the decision in 125(4), which may, given the nature of the allegation, take considerable time in reaching its final conclusion.

Put clearly, it has to be observed that an application for maintenance is stage one of the proceedings wherein by virtue of the second proviso, the court may, circumstances permitting, award interim maintenance. The application under Section 125(4) is stage two and it is the decision in stage two which will determine whether the application reaches the final stage i.e. order of maintenance under Section 125(1) or not. What is provided by Section 125(5) accounts for a situation that is subsequent to final order having been made in stage three.

The above discussion can be explained through illustrations. A is the wife and B is the husband. 13.1 In the first scenario, A files for maintenance. Husband enters appearance and the concerned court awards interim maintenance. On a subsequent date, B files an application under Section 125(4). Here, there are two possibilities. If the evidence presented along with the application establishes one of the three situations contemplated in Section 125(4) on the “face of it” or if the situation is that the existence of either of the three scenarios is “admitted”, then the interim maintenance would be stopped and the application for maintenance would be dismissed. If the evidence is required to be proved in accordance with law, the court would undertake a review of the evidence and only after being convinced of its merit, make an order thereupon. In this intervening period between the date of filing the application and the order under Section 125(4), interim maintenance would continue. 13.2 In the second scenario, B while entering appearance in A’s application for maintenance, on the same day, files an application under Section 125(4), then, if the evidence is “admitted”/demonstrates the factual situation on first blush regarding the three scenarios, where maintenance would not be payable by B, then on the very day it is established before the Court, interim maintenance would become a non starter. If again, the evidence is required to be proved in accordance with law, for the time that the court is considering such evidence to arrive at a conclusion, the payment of interim maintenance would continue.

To reiterate, if the application for maintenance is to be denied at the interim stage itself, the party having filed the application under Section 125(4) must present clear and cogent evidence that would ex-facie establish adultery on part of the claimant for maintenance.

We turn our attention, now, to the present facts, wherein the appellant places reliance on Section 125(4) to oppose, in general, respondent no. 2’s application for maintenance. As extracted supra, it was the appellant’s case before the High Court that his allegations of adultery against Respondent No.2 should be decided as a preliminary issue which would then have a bearing on whether maintenance (interim or otherwise) is to be paid to Respondent No.2 at all or not.

In essence, we are to decide whether allegations of adultery, when made, have to be decided at the first instance so as to, if proved, take away the entitlement of the wife to maintenance or is it to be decided at the stage of final adjudication. Adultery, if proved, takes away maintenance from the wife, then the application to prove such a fact has to be decided between the order granting interim maintenance and final adjudication of such application for maintenance.

At this stage, a segue into how an allegation of adultery can be/is to be proved may be warranted. Evidence is of two types, direct and circumstantial. The former is the kind that establishes, on the face of it, an allegation.

It is obvious that when a case is sought to be proved by circumstantial evidence, it requires a detailed study of the circumstances presented. The evidence furnished in support thereof, including verification, particularly when the evidence in question is electronic, etc. These procedures are bound to take time. Since the stipulation in the 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 courts below clearly fell into error to hold that it was only at the stage of final adjudication that such a question could be decided. This view would render otiose what has been provided in the statute.

Applying this understanding to the record, in order to establish that the Respondent No. 2 was living in adultery, the appellant has placed a number of photographs and other evidence. This evidence is obviously electronic in nature. The question that the court must consider at the stage of interim maintenance is whether the evidence so presented establishes adultery. It is obviously open for the Respondent No. 2 to dispute the correctness and legality of the evidence presented, which would then have to be considered by the Court. In that view of the matter, we are of the view that the Trial Court ought to have decided the appellant’s application under Section 125(4). It was incorrect for them to have observed that the appellant’s application could not have been decided prior to the final adjudication of the application filed by the wife. The second proviso to sub-section (1) of Section 125 provides for interim maintenance; and as such, the logical flow of proceedings would be that once the basic facts are established, an order is made for interim maintenance, and that would continue to operate till the application under Section 125 (4) is decided conclusively. This is in view of the beneficent nature of the provision. This question is accordingly decided. Consequently, the matter stands remanded to the Trial Court to make a decision on the merits since they had in this instance dismissed the application on the threshold. However, the matter does not end there. PRIVATE INVESTIGATORS: AN AREA SANS REGULATION

On the record of this case, the appellant has placed a large number of photographs allegedly of Respondent no. 2 pursuing a relationship outside of marriage. The manner of the photographs leads us to believe that the same may have been procured through private investigators/detectives. What furthers this belief is that the appellant states to have ‘received’ these photographs after a particular date when an application was filed. The implication is that they have been received from a third party. A question arose as to the value of these pictures/videos since there is a statement in the file that approximately 92 videos along with 237 photographs have been furnished before the court below. Who took these pictures? Did they have any authorization to do so? What is the procedure for storing these pictures once taken? Whether these pictures sought to be adduced as evidence are in fact genuine pictures or are doctored using technological advancements; do they present an accurate picture or have they been morphed to suit the narrative sought to be built by the parties? What are the implications for the right of privacy of individuals, protection of their personal data, etc.? Obviously, these are concerns that need to be addressed. It appears, though, that there is no body existing currently that could undertake these issues. If such collection of evidence is a reality, there also has to be some limitation to what these individuals can do in pursuit of their profession, some protections for them against allegations such as 354C IPC (voyeurism) and regulation of the data/photographs procured by the investigator. There has to be a mechanism in place to deal with the evolving methods of evidence collection. Verification within the meaning of Section 65B of the Evidence Act, 1872 or its equivalent in the BSA, 2023, is not the only issue. Checks and measures are perhaps required, drawn from the areas of the law, law enforcement, privacy experts, etc., that can deal with issues arising out of such endeavours, including acting as a grievance redressal forum for any individual who may be aggrieved by the actions of the private investigator having overstepped professional bounds and gone into violating the rights of the individual.

We notice that in 2007 a bill was introduced in the Rajya Sabha (Upper House) of the Indian Parliament titled The Private Detective Agencies (Regulation) Bill, 2007, which contained 36 sections and provided for the Constitution of a Central Board and State Boards, a list of requirements to be fulfilled for a license, cancellation, suspension of such licenses, maintenance of records, express bar on investigations falling squarely within the domain of statutory/regulatory authorities etc. A perusal of the Statement of Objects and Reasons appended to the Bill reveals that the need to bring a bill in this regard arose from the perspective of business since there was an increasing reliance on private investigators to gather information. While that may be true, we believe that regulation and accountability are equally important in the sphere of private investigation. While we recognize its growing importance and also the fact that it touches various different aspects of law, as far back as 2000 it was observed by a Bench of three Judges in Navinchandra N. Majithia v. State of Meghalaya[^20], as follows: “16. The Code does not recognise private investigating agency. If any person is interested in hiring any such private agency, he may do so at his own risk and cost, but such investigation would not be regarded as investigation made under law. Any evidence collected in such private investigation and any conclusion reached by such investigators cannot be presented by Public Prosecutor in any trial. Of course it may be possible for the defence to present such evidence. In this context, we may refer to a recent decision of this Court R. Sarala v. T.S. Velu [(2000) 4 SCC 459 : 2000 SCC (Cri) 823]. This Court said that even a Public Prosecutor cannot be officially involved during the stage of investigation. The following observations made by this Court in the said decision will be useful: (SCC p. 461, para 2) “2. Investigation and prosecution are two different facets in the administration of criminal justice. The role of a Public Prosecutor is inside the court, whereas investigation is outside the court. Normally the role of a Public Prosecutor commences after the investigating agency presents the case in the court on culmination of investigation. Its exception is that the Public Prosecutor may have to deal with bail applications moved by the parties concerned at any stage. Involving the Public Prosecutor in investigation is unjudicious as well as pernicious in law. At any rate no investigating agency can be compelled to seek the opinion of a Public Prosecutor under the orders of the court.” On the aspect of admissibility of the evidence, if we for a moment keep aside the non-recognition, then the three-fold- test as laid down in R.M. Malkani v. State of Maharashtra[^21], which, while being concerned with the admissibility of a tape- recorded conversation, held: “

Tape recorded conversation is admissible provided first the conversation is relevant to the matters in issue; secondly, there is identification of the voice; and, thirdly, the accuracy of the tape recorded conversation is proved by eliminating the possibility of erasing the tape record. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under Section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under Section 7 of the Evidence Act. ...” (emphasis supplied) This was recently referred to in Naresh Kumar Garg (Dr.) v. State of Haryana[^22], ‘Identification of the voice’ in current terms can be read as verifying the source of the information or in this case, photographs/videos. When dealing with this nature of evidence, it needs to be examined at the anvil of Section 65-B of the Indian Evidence Act 1872. A three-judge bench in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal[^23], explained the position as thus: V. Ramasubraminan J: “84. But Section 65-B(1) starts with a non obstante clause excluding the application of the other provisions and it makes the certification, a precondition for admissibility. While doing so, it does not talk about relevancy. In a way, Sections 65-A and 65-B, if read together, mix up both proof and admissibility, but not talk about relevancy. Section 65-A refers to the procedure prescribed in Section 65-B, for the purpose of proving the contents of electronic records, but Section 65-B speaks entirely about the preconditions for admissibility. As a result, Section 65-B places admissibility as the first or the outermost checkpost, capable of turning away even at the border, any electronic evidence, without any enquiry, if the conditions stipulated therein are not fulfilled. 85. The placement by Section 65-B, of admissibility as the first or the border checkpost, coupled with the fact that a number of “computer systems” [as defined in Section 2(l) of the Information Technology Act, 2000] owned by different individuals, may get involved in the production of an electronic record, with the “originator” [as defined in Section 2(za) of the Information Technology Act, 2000] being different from the recipients or the sharers, has created lot of acrimony behind Section 65-B, which is evident from the judicial opinion swinging like a pendulum.” RF Nariman J: “61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. [Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473 : (2015) 1 SCC (Civ) 27 : (2015) 1 SCC (Cri) 24 : (2015) 1 SCC (L&S) 108] , and incorrectly “clarified” in Shafhi Mohammad [Shafhi Mohammad v. State of H.P., (2018) 2 SCC 801 : (2018) 2 SCC 807 : (2018) 2 SCC (Civ) 346 : (2018) 2 SCC (Civ) 351 : (2018) 1 SCC (Cri) 860 : (2018) 1 SCC (Cri) 865] . Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. Taylor [Taylor v. Taylor, (1875) LR 1 Ch D 426] , which has been followed in a number of the judgments of this Court, can also be applied. Section 65-B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. To hold otherwise would render Section 65-B(4) otiose.” For the aspect of accuracy too, the certificate under section 65-B IEA could perhaps go a long way. 23. In light of the questions posed by us above, the need to develop our mechanism for dealing with these scenarios cannot be underscored enough. The legislature would obviously need to undertake its own examination of all relevant issues and frame rules/regulations in accordance with the prevalent norms and conditions, but can also make reference to other jurisdictions where laws of similar nature exist, for example, the State of Queensland in Australia, the Province of Ontario and Canada, the Netherlands, Singapore, etc.

In view of the above discussion, on the aspect of private investigation, we direct that a copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Government of India, and also the Chairman, Law Commission of India to take a view, as may be appropriate in the matter. The impugned judgment and order of the High Court dated 04.02.2025 is hereby set aside. The matter is remanded to the Trial Court in the above terms. Appeal is allowed. Pending application(s), if any, shall stand disposed of. ………….……..……………..J. (SANJAY KAROL) ……….………..……………..J. (VIPUL M. PANCHOLI) New Delhi July 31, 2026