A Supreme Court judgment last month settled a long-standing procedural question in maintenance law — that a wife found to be “living in adultery” can be denied even interim maintenance, under Section 125 of the Code of Criminal Procedure (CrPC), provided the husband produces clear and cogent evidence. In the same verdict, the court drew Parliament's attention to a legal vacuum around private detectives and electronic surveillance often cited in cases of matrimonial disputes.
A bench of justices Sanjay Karol and Vipul M Pancholi held that the statutory disqualification under Section 125(4) – carried over as Section 144 in the Bharatiya Nagarik Suraksha Sanhita (BNSS) – applies not only to final maintenance but equally to interim maintenance, provided the husband is able to place before the court clear and cogent material that prima facie establishes adultery. Equally important, the court recognised the growing use of private detectives in matrimonial litigation and urged Parliament and the Law Commission to frame a regulatory regime governing their functioning, collection of electronic evidence and protection of privacy.
The husband was represented by advocate Prabhjit Jauhar.
The ruling is likely to have an immediate impact on matrimonial litigation across the country because it settles two recurring questions that frequently arise before family courts. First, it clarifies the stage at which a plea of adultery must be examined when a wife seeks maintenance, preventing courts from routinely postponing the issue until the final hearing.
Second, it is among the first Supreme Court decisions to squarely address the growing reliance on private detectives and electronic surveillance in family disputes, flagging concerns that extend beyond matrimonial law into the domains of privacy, data protection and the admissibility of digital evidence.
{{/usCountry}}Second, it is among the first Supreme Court decisions to squarely address the growing reliance on private detectives and electronic surveillance in family disputes, flagging concerns that extend beyond matrimonial law into the domains of privacy, data protection and the admissibility of digital evidence.
{{/usCountry}}Together, the judgment attempts to balance the social welfare objective of maintenance with statutory safeguards against abuse, while acknowledging that technological developments have outpaced the existing legal framework.
A welfare law, not an absolute right
The Supreme Court begins by reaffirming the philosophy behind Section 125 CrPC — that maintenance is a measure of social justice intended to prevent destitution and ensure that a spouse, child or parent unable to maintain themselves is not left without financial support. Proceedings under the provision are summary in nature — they are designed to be simplified and quickly decided — so that relief reaches the claimant quickly, rather than after years of litigation.
The bench referred to a series of earlier decisions to explain these foundational principles.
In Shah Bano (1985), a constitution bench described maintenance as a secular remedy available irrespective of religion, aimed at preventing vagrancy and hardship. More recently, in Rajnesh vs Neha (2021), the Supreme Court emphasised that maintenance laws are rooted in constitutional values of social justice and laid down guidelines to ensure fairness and consistency in determining maintenance claims.
At the same time, the court underlined that the right to maintenance is not unconditional. Parliament has recognised specific situations in which a wife loses her entitlement under Section 125(4), including where she is living in adultery, refuses to live with her husband without sufficient cause, or when the spouses are living separately by mutual consent.
The present case required the court to determine how this statutory exception operates when a wife seeks interim maintenance before the main proceedings conclude.
The judgment, therefore, is not about creating a new exception to maintenance law. Rather, it clarifies how an exception that has long existed in the statute should be applied by courts while balancing the provision’s welfare objective with the legislature’s express disqualifications.
Interim maintenance can also be denied
The key contribution of the judgment lies in resolving whether allegations under Section 125(4) can be deferred until final adjudication while interim maintenance continues.
The trial court had refused to decide the husband’s plea alleging adultery, holding that the authenticity of photographs and videos could be examined only after recording evidence. The Rajasthan high court agreed, observing that adultery was a disputed question of fact that should await the final hearing.
The Supreme Court rejected this approach.
The bench examined the language of Section 125(4), particularly in light of Parliament’s 2001 amendment, which inserted the concept of interim maintenance through the second proviso to Section 125(1). Reading the provision as a whole, the court held that if adultery ultimately bars both interim and final maintenance, courts cannot postpone examination of the statutory disqualification until the very end of the proceedings.
At the same time, the court carefully balanced the social welfare objective of maintenance with the statutory bar. It clarified that a mere allegation of adultery is insufficient. The husband must place "clear and cogent" material that ex facie — on the face of the record — establishes adultery before interim maintenance can be denied.
The judgment illustrates two procedural possibilities. Where evidence or admissions immediately establish one of the disqualifications under Section 125(4), interim maintenance can be denied. However, where evidence requires detailed proof, verification or trial, interim maintenance should ordinarily continue until the Section 125(4) application is decided.
This clarification is likely to influence maintenance litigation across the country because trial courts frequently defer such objections until the final disposal of proceedings, often rendering Section 125(4) ineffective during the intervening years.
Also read: A review of the rulebook: Why the Supreme Court will take another look at its 2022 PMLA verdict
Private detectives in spotlight
While resolving the maintenance issue, the court confronted a legal vacuum.
The husband had relied upon 237 photographs and 92 videos allegedly depicting the wife’s relationship outside marriage. The nature of the material suggested that it had probably been gathered by private investigators.
Instead of merely examining admissibility, the bench asked a series of broader questions. Who collected these images? Under what authority? How were they stored? Could they have been morphed? What safeguards exist against misuse? How are privacy rights protected? Who regulates such investigators?
The court observed that private investigation has become an increasingly adopted measure in cases of matrimonial disputes, but India lacks any statutory framework governing licensing, accountability, preservation of data, permissible methods of surveillance or grievance redressal against investigators who overstep legal limits.
Referring to the unimplemented Private Detective Agencies (Regulation) Bill, 2007, the court said regulation has become necessary not only to protect individuals from unlawful surveillance but also to provide legal certainty to investigators themselves against allegations such as voyeurism. Accordingly, it directed that the judgment be forwarded to the ministry of law and justice and the Law Commission of India for considering an appropriate regulatory framework.
Electronic evidence must pass existing legal tests
The judgment does not treat privately collected electronic evidence as automatically inadmissible. Instead, it reiterates that such material must satisfy established evidentiary safeguards.
The bench recalled the three-judge decision in Navinchandra N Majithia vs State of Meghalaya (2020), where the Supreme Court observed that Indian law does not recognise private investigating agencies as statutory investigators and that any evidence collected by them does not amount to investigation under law. Nevertheless, such material may still be relied upon by the defence, subject to the ordinary rules governing admissibility.
The court also referred to RM Malkani vs State of Maharashtra (1973), which laid down the classic three-fold test for admissibility of tape-recorded conversations — relevance, proper identification of the source and proof of authenticity by ruling out tampering. The bench observed that the requirement of identifying the voice in Malkani translates, in today’s digital environment, into verifying the source of photographs and videos.
Finally, the judgment places considerable emphasis on Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal (2020), where a three-judge bench conclusively held that the certificate under Section 65B of the Evidence Act — the provision that governs the admissibility of electronic records in Indian courts — is a mandatory precondition for admissibility of electronic records.
Although arising from a maintenance dispute, the ruling carries implications far beyond Section 125 proceedings. It restores practical meaning to Parliament’s statutory bar against maintenance where adultery is prima facie established, while simultaneously preventing that exception from becoming a weapon based on unsubstantiated allegations. Equally significant is the court's recognition that private surveillance has outpaced the law. As electronic evidence increasingly shapes family litigation, the judgment signals that questions of privacy, authenticity, data protection and accountability can no longer remain unregulated. The eventual legislative response may prove to be as consequential as the ruling itself.