In a significant ruling on the law of maintenance, the Supreme Court has held that a wife can be denied even interim maintenance under Section 125 of the Code of Criminal Procedure if the husband is able to ex facie establish, at the very first instance, that she is living in an adulterous relationship. The decision in Himanshu Chordia v. State of Rajasthan & Anr. settles an important procedural question — whether the bar of adultery in Section 125(4) CrPC can be tried as a preliminary issue, or only at the stage of final adjudication — and, in a notable aside, flags the complete absence of any legal framework regulating private detectives and the evidence they gather.
The question before the Court
Justice Sanjay Karol, who authored the judgment for a Bench also comprising Justice Vipul M. Pancholi, framed the issue through a simple illustration. A and B are husband and wife. Their relationship sours and they begin living separately; B files for maintenance. A alleges that the separation is on account of B’s promiscuity and her adulterous relationship with another person. In that situation, is A obliged to pay B interim or final maintenance? Put in strictly procedural terms, when a husband invokes the adultery bar under Section 125(4), must that allegation be decided at the threshold, or does it have to wait until the entire maintenance inquiry is concluded?
Facts of the case
Himanshu Chordia, the appellant, married Arushi Jain (Respondent No. 2) on 7 July 2014. A few years into the marriage the relationship deteriorated, and on 13 May 2020 the wife left the matrimonial home along with the child and her valuables. On 5 November 2020 she filed an application under Section 125 CrPC seeking maintenance, together with a separate application for interim maintenance, before the Special Additional Chief Judicial Magistrate (PCPNDT Cases), Udaipur.
The husband responded with an application under Section 125(4) CrPC, contending that because the wife was living in adultery — allegedly with one Deepak Mundra — she was disentitled to maintenance, whether interim or final. In support, he produced a large volume of material, including photographs and electronic records. He also filed an application under Section 91 CrPC seeking production of the wife’s bank records, call detail records, social-media details and other documents.
By order dated 27 June 2024, the Trial Court dismissed both applications. On the adultery plea, it held that the authenticity and originality of the photographs and CD could not be determined at that stage and could only be examined after evidence was exhibited in the main petition. It nonetheless proceeded to grant interim maintenance of Rs. 25,000 each to the wife and the son by a subsequent order dated 30 July 2024. The husband’s challenge to the rejection of his Section 125(4) application was dismissed by the High Court on 4 February 2025, which held that there is no provision in the CrPC mandating that adultery be adjudicated as a preliminary issue before an application for interim maintenance is decided, and that it was a disputed question of fact to be decided at final adjudication. That order brought the matter to the Supreme Court.
The statutory scheme: Section 125 and its exceptions
Before answering the question, the Court restated the object and character of maintenance law. The basic idea behind maintenance, regardless of the statute in which the right appears, is to prevent neglect and destitution of those who are unable to provide for themselves — a spouse, a child, or even parents — by imposing an obligation on those who have the means. It is a means of securing the essential aspects of a dignified life and enforcing accountability against persons who ignore their responsibilities towards their family.
Section 125(1) empowers a Magistrate to order a monthly allowance where a person having sufficient means neglects or refuses to maintain a wife, child or parent unable to maintain themselves. The second proviso to Section 125(1), inserted by an amendment in 2001, allows the Magistrate to order interim maintenance and expenses of the proceeding during the pendency of the main application — ideally to be disposed of within sixty days of notice — precisely so that a claimant is not left without support for the years that a maintenance case can take.
Section 125(4) is the exception relied upon by the husband. It provides that no wife shall be entitled to an allowance (including interim maintenance) if she is living in adultery, or if she refuses without sufficient reason to live with her husband, or if the spouses are living separately by mutual consent. Section 125(5) is its mirror image at the post-order stage: on proof that a wife in whose favour an order has been made is living in adultery, the Magistrate shall cancel the order.
The settled features of Section 125 proceedings
Surveying its own precedents, the Court distilled the settled features of maintenance proceedings under Section 125. They are summary in nature, designed to be speedy and to prevent vagrancy and destitution. They are essentially civil, so the standard of proof is not proof beyond reasonable doubt as in a criminal trial. Only a person unable to maintain herself may seek relief, and she must simultaneously show that the husband has sufficient means. The provision is secular and applies to all persons irrespective of religion, and any order made is subject to final determination by the civil court. Importantly, a decree of restitution of conjugal rights does not by itself bar maintenance, and a decree of divorce does not foreclose relief — Section 125(4), being an exception, does not take a divorced woman within its sweep.
Preliminary issue or final adjudication? The three-stage framework
The heart of the judgment lies in how the Court structured the maintenance inquiry into stages. Stage one is the application for maintenance itself, at which the court may — circumstances permitting — award interim maintenance under the second proviso to Section 125(1). Stage two is the application under Section 125(4); it is the decision at this stage that determines whether the claim proceeds to the final stage at all. Stage three is the final order of maintenance under Section 125(1). Section 125(5), the Court clarified, operates in a situation that is subsequent to a final order having been made.
The text of the statute, the Court held, itself supplies the answer. Since Section 125(4) says that a wife living in adultery is entitled to neither interim nor final maintenance, the adultery plea cannot be postponed to the very end of the inquiry. To hold otherwise — as the courts below did — would render the statutory bar otiose. At the same time, the Court was careful to protect the beneficent purpose of interim maintenance. The mere pendency of a Section 125(4) application does not, by itself, stop interim maintenance; if maintenance were made perpetually contingent on the outcome of the 125(4) application, which can take considerable time given the nature of adultery allegations, the very object of the second proviso would be defeated.
The “ex facie” test
The Court therefore drew a crucial distinction based on the nature of the evidence. If the husband, when he files his Section 125(4) application, produces evidence that establishes adultery on the face of it, or where the factual situation is admitted, then interim maintenance is to be stopped and the maintenance application dismissed — even on the very day the position is established before the court. But if the allegation rests on evidence that must be proved in accordance with law — for instance, circumstantial or electronic material that requires verification — then, for the period during which the court is examining that evidence, interim maintenance continues to operate.
In the Court’s own words, if maintenance is to be denied at the interim stage itself, the party invoking Section 125(4) “must present clear and cogent evidence that would ex-facie establish adultery.” The error of the courts below lay in treating adultery as a question capable of decision only at final adjudication; the correct course was for the Trial Court to actually decide the Section 125(4) application on its merits, rather than dismissing it at the threshold. On the facts, since the husband’s material was largely electronic in nature — which the wife is entitled to dispute for correctness and legality — the Court set aside the High Court’s order and remanded the matter to the Trial Court to decide the application on merits, with interim maintenance continuing to operate until that application is conclusively decided.
A wider concern: private investigators and unregulated evidence
The judgment did not end with the remand. On the record were roughly 92 videos and 237 photographs allegedly showing the wife in a relationship outside the marriage, apparently procured through private investigators or detectives and “received” by the husband from a third party. This prompted the Court to voice a series of unanswered questions that go well beyond this case: who took these pictures, and with what authorisation? How were they stored? Are they genuine, or doctored and morphed using technology? What are the implications for the privacy, personal data and dignity of the individuals photographed, and the exposure of investigators to charges such as voyeurism under Section 354C IPC?
The Court observed that no body presently exists to address these concerns, and that private investigation in India remains almost entirely unregulated. It recalled that The Private Detective Agencies (Regulation) Bill, 2007, introduced in the Rajya Sabha with provisions for licensing, central and state boards and record-keeping, was never enacted. It reiterated the observation in Navinchandra N. Majithia v. State of Meghalaya that the Code does not recognise private investigating agencies, and that any evidence collected in such private investigation is not investigation under law. On admissibility, the Court referred to the three-fold test in R.M. Malkani v. State of Maharashtra for tape-recorded conversations, and to the requirement — reaffirmed in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal — that a certificate under Section 65-B of the Evidence Act (now its equivalent in the Bharatiya Sakshya Adhiniyam, 2023) is a mandatory precondition to the admissibility of electronic evidence.
Recognising the need to develop a mechanism to deal with these evolving methods of evidence collection, and noting that jurisdictions such as Queensland (Australia), Ontario (Canada), the Netherlands and Singapore already regulate this field, the Court directed that a copy of the judgment be sent to the Secretary, Ministry of Law and Justice and the Chairman, Law Commission of India to take an appropriate view.
Why the judgment matters
For matrimonial practitioners, the decision offers a clear procedural roadmap. A husband who genuinely possesses ex facie or admitted proof of adultery is no longer told to wait until the end of a years-long inquiry; the Section 125(4) application must be decided on its merits, and a strong threshold showing can cut off maintenance at the interim stage itself. Equally, a wife is protected against tactical delay: a bare allegation of adultery, or one dependent on electronic material that still has to be tested and verified, will not automatically suspend her interim maintenance while the court examines that evidence. The ruling thus balances the anti-adultery bar in Section 125(4) against the beneficent, anti-destitution purpose that animates the maintenance jurisdiction.
The second half of the judgment may prove even more consequential in the long run. By squarely flagging the regulatory vacuum around private detectives — and the privacy, data-protection and admissibility questions that unverified, investigator-sourced photographs and videos raise — the Court has put both the legislature and the Law Commission on notice that surveillance evidence in family litigation cannot remain a lawless zone.
Case details
- Case title: Himanshu Chordia v. State of Rajasthan & Anr.
- Citation: 2026 LiveLaw (SC) 748; 2026 INSC 778
- Arising out of: Criminal Appeal @ SLP (Crl.) No. 3171 of 2025
- Bench: Justice Sanjay Karol and Justice Vipul M. Pancholi
- Judgment authored by: Justice Sanjay Karol
- Date of judgment: 31 July 2026
- Result: Appeal allowed; High Court order dated 04.02.2025 set aside; matter remanded to the Trial Court.
Disclaimer: This article is for general information and academic discussion only and is based on the Supreme Court’s judgment in Himanshu Chordia v. State of Rajasthan & Anr. It is not legal advice. Readers should refer to the full text of the judgment and consult a qualified advocate for advice on any specific matter.
— Akinchan Aggarwal, Advocate
