Supreme Court Clarifies: Prima Facie Proof of Adultery Can Be Considered Before Granting Interim Maintenance By Advocate Avichal Pandey, Allahabad High Court

Supreme Court Clarifies: Prima Facie Proof of Adultery Can Be Considered Before Granting Interim Maintenance

By Advocate Avichal Pandey, Allahabad High Court

Introduction

Maintenance proceedings are intended to provide immediate financial support to a wife, child or parent who is unable to maintain themselves. At the same time, the law does not treat the right to maintenance as completely unconditional. The statutory framework itself contains certain circumstances in which a wife may be disentitled from receiving maintenance.

A significant question recently came before the Supreme Court of India: Can a court consider an allegation of adultery at the stage of deciding interim maintenance, or must the issue necessarily wait until the final disposal of the maintenance proceedings?

In Himanshu Chordia v. State of Rajasthan & Anr., SLP (Crl.) No. 3171 of 2025, decided on 31 July 2026, the Supreme Court answered the question in favour of considering the issue at the interim stage where the husband is able to place prima facie/ex facie evidence establishing the alleged adulterous relationship. 

The judgment is particularly relevant under the new criminal procedural framework because Section 125 CrPC corresponds substantially to Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), while the disqualification contained in Section 125(4) CrPC is reflected in Section 144(4) BNSS.

The Case: Himanshu Chordia v. State of Rajasthan

The dispute arose out of matrimonial differences between the husband and wife. The marriage had taken place in 2014. According to the case record, the relationship subsequently became strained and the wife left the matrimonial home in 2020 along with the child and certain valuables.

The wife thereafter initiated proceedings seeking maintenance under Section 125 CrPC.

The husband opposed the claim and invoked Section 125(4) CrPC, alleging that the wife was living in an adulterous relationship. In support of his allegation, he produced material including photographs and other electronic material.

The Trial Court, however, did not decide the husband's objection at the interim stage. The approach adopted was that questions concerning the authenticity and evidentiary value of the material could appropriately be examined when evidence was formally led in the main maintenance proceedings.

The High Court substantially upheld that approach.

The matter consequently reached the Supreme Court. 

What Does Section 125(4) CrPC Provide?

Section 125(4) CrPC contains an important statutory restriction on the wife's entitlement to maintenance.

Broadly speaking, a wife is not entitled to receive maintenance under Section 125 where:

1. she is living in adultery;

2. she refuses to live with her husband without sufficient reason; or

3. the parties are living separately by mutual consent.

The provision is therefore not merely procedural. It creates a statutory qualification concerning entitlement to maintenance.

Under the BNSS, the corresponding provision is found in Section 144(4).

This distinction becomes important because a court considering an application for interim maintenance cannot simply ignore a statutory bar if credible material demonstrating its applicability is placed before it.

The Supreme Court's Key Finding

The Supreme Court, comprising Justice Sanjay Karol and Justice Vipul M. Pancholi, held that where a husband invokes Section 125(4) CrPC and is able, at the first instance, to establish the allegation of adultery through evidence which ex facie demonstrates the relationship, the question cannot automatically be postponed until final adjudication. 

The Court found that the approach of the courts below—treating the question as one that could only be considered after the final trial—was erroneous in the circumstances of the case.

The Supreme Court consequently set aside the impugned approach and remanded the matter to the Trial Court for consideration of the husband's application on its merits. 

The judgment has been reported as 2026 LiveLaw (SC) 748. 

"Does the Judgment Mean That Every Allegation of Adultery Defeats Maintenance?"

No.

This is perhaps the most important aspect of the judgment.

The Supreme Court did not hold that a mere allegation of adultery is sufficient to deny interim maintenance.

The husband must place material which, at the relevant stage, prima facie/ex facie establishes the alleged adulterous relationship.

Therefore, there is a substantial difference between:-

 "The husband alleges adultery."

and

 "The husband produces credible material which ex facie establishes the alleged adulterous relationship."

The first, by itself, is merely an allegation.

The second may require the court to examine the statutory disqualification even while deciding interim maintenance.

Prima Facie Evidence: Why It Matters

Interim proceedings are not intended to become a full-fledged trial.

At the same time, an interim order cannot be passed mechanically where a statutory disqualification is specifically pleaded and supported by credible material.

The expression prima facie essentially refers to material which, on its face and at the relevant stage, provides sufficient basis for the court to proceed on the issue unless displaced by further evidence.

Consequently, the court dealing with interim maintenance may have to undertake a limited assessment of the material produced by the husband.

This does not mean that the court conducts the entire matrimonial trial at the interim stage.

Rather, the court must determine whether the statutory bar relied upon by the husband has sufficient evidentiary foundation to warrant consideration before interim maintenance is granted.

Important Distinction Between Final Adjudication and Interim Consideration

The judgment should not be misunderstood as eliminating the requirement of a full adjudication where the facts remain disputed.

There is a difference between:-

Final determination

At the final stage, the court can examine the entire evidence, cross-examination, authenticity of documents, electronic evidence and competing versions of the parties.

Interim consideration

At the interim stage, the court examines whether the material placed before it is sufficiently credible and apparent on its face to attract consideration of the statutory bar.

Thus, interim consideration does not necessarily amount to final adjudication of the matrimonial allegation.

This distinction is crucial for Family Courts and Magistrates dealing with maintenance litigation.

Electronic Evidence and Private Investigators: An Important Additional Aspect

The judgment has significance beyond maintenance law.

The material relied upon by the husband included photographs and videos which, according to the proceedings, were connected with investigation by a private detective agency.

The Supreme Court consequently also considered the broader question concerning the functioning of private detective agencies and the manner in which evidence is collected by them.

The Court expressed concern regarding the absence of an effective statutory regulatory framework governing private detective agencies and highlighted potential issues concerning privacy, investigative practices and individual rights. 

The Court also referred to the earlier decision in Navinchandra N. Majithia v. State of Meghalaya, (2000) 8 SCC 323, concerning the legal status of investigations conducted by private agencies. 

The Supreme Court directed that a copy of the judgment be forwarded to the concerned authorities, including the Ministry of Law and Justice and the Law Commission of India, for consideration of the regulatory issue. 

What Changes Under the BNSS, 2023?

The judgment arose under the CrPC, 1973, but its practical significance continues under the new procedural law.

Section 144 BNSS deals with maintenance of wives, children and parents and corresponds to the former Section 125 CrPC. Section 144(4) contains the relevant statutory restrictions concerning a wife's entitlement.

Accordingly, lawyers handling maintenance proceedings under the BNSS should carefully examine whether a plea corresponding to Section 125(4) CrPC is raised and supported by material.

The transition from CrPC to BNSS does not mean that the underlying legal principle becomes irrelevant merely because the statutory numbering has changed.

Practical Implications for Lawyers

The judgment provides useful guidance for both sides in maintenance litigation.

For the husband

If a husband intends to rely upon adultery as a statutory bar, a vague allegation is unlikely to be sufficient. The defence should:-

●specifically plead the statutory bar;

●produce the available supporting material;

●properly identify the source and circumstances of electronic material;

●address authenticity and relevance;

●avoid relying merely upon suspicion or matrimonial allegations; and

●request the court to consider the statutory bar at the interim stage where the material is sufficiently strong.

For the wife

A wife facing such an objection should not assume that the filing of photographs, videos or other electronic material automatically proves adultery.

The wife may challenge:-

●authenticity;

●source;

●continuity;

●context;

●manipulation or alteration;

●identification of persons;

●reliability of the material; and

●the legal inference sought to be drawn from it.

The court must still apply its judicial mind to the material before deciding whether the statutory bar is attracted.

The Larger Principle: Maintenance Is a Protective Remedy, But Statutory Conditions Matter

Maintenance law serves an important social purpose. Section 125 CrPC—and now Section 144 BNSS—is designed to prevent destitution and provide financial protection to persons who are unable to maintain themselves.

However, the protective purpose of maintenance legislation does not permit a court to disregard express statutory conditions.

The Himanshu Chordia decision demonstrates this balance.

On one hand, courts must ensure that genuine claims for maintenance are not defeated by unsubstantiated matrimonial allegations.

On the other hand, where a statutory disqualification is supported by material that prima facie establishes the relevant conduct, the court cannot simply postpone consideration of that issue on the assumption that it can only be examined after the final disposal of the proceedings.

Key Takeaways from the Judgment

The principal takeaways may be summarised as follows:-

1. A plea of adultery under Section 125(4) CrPC cannot automatically be ignored at the interim-maintenance stage.

2. Where the husband produces material that ex facie establishes the alleged adulterous relationship, the court must consider the statutory bar.

3. A mere allegation of adultery is not equivalent to prima facie proof.

4. Interim consideration of the issue does not necessarily mean final adjudication of the matrimonial dispute.

5. The judgment is relevant to proceedings under Section 144(4) BNSS, the corresponding provision under the new procedural regime.

6. The Supreme Court has also raised important concerns regarding private detective agencies and privacy in the collection of matrimonial evidence. 

Conclusion

The Supreme Court's decision in Himanshu Chordia v. State of Rajasthan & Anr. is an important development in the law relating to interim maintenance.

The judgment reinforces a simple but significant principle: a statutory defence cannot be rendered meaningless merely because the proceeding is at an interim stage.

Where a husband invokes the statutory disqualification relating to adultery and places material that prima facie establishes the allegation, the court is required to examine the issue rather than mechanically defer it until final adjudication.

At the same time, the decision should not be treated as a licence to deny maintenance merely on the basis of accusations. The evidentiary foundation of the allegation remains crucial.

For practitioners dealing with matrimonial and maintenance litigation, particularly proceedings under Section 144 BNSS, the judgment provides an important framework for understanding the relationship between interim relief, statutory disqualifications, prima facie evidence and the right to a fair adjudication.

Author:

Avichal Pandey

Advocate,Allahabad High Court

Disclaimer: This article is intended for general legal information and academic discussion. It should not be treated as legal advice in any particular case. The precise application of the judgment will depend upon the pleadings, evidence and facts of each matter.