If husband alleges adultery, court must first decide issue before granting maintenance: SC

NEW DELHI: The Supreme Court on Friday held that if an allegation of adultery is made by a husband, then the court must first decide that issue before granting interim maintenance to the wife.

A bench of Justices Sanjay Karol and Vipul M Pancholi said courts would be in error to hold that it was only at the stage of final adjudication that such a question could be decided.

"Since the stipulation in the Section 125 (4) (CrPC) 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 bench said.

The top court's judgment came on an appeal filed by a man challenging an order of the Rajasthan High Court which dismissed his plea opposing grant of maintenance on account of adultery.

In this case, the man married the woman on July 7, 2014.

Trouble started brewing a few years into their marriage, which resulted in, allegedly, the hurling of allegations by the woman towards the man and also some complaints before the police.

She finally left her matrimonial home on May 13, 2020, along with child and her valuables.

Later, she filed an application for interim maintenance before the Special Additional Chief Judicial Magistrate, Udaipur. Subsequently, the man filed an application under Section 125(4), CrPC contending that on account of adulterous relationships, his wife is not entitled to any interim maintenance which was dismissed.

The top court in its judgment said in order to establish that the wife was living in adultery, the husband 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 (wife) 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 (husband) 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 bench said.

Section 125(4) of the Code of Criminal Procedure (CrPC) states that a wife cannot claim maintenance, interim maintenance, or legal expenses from her husband under Section 125 if she is living in adultery.

The apex court also questioned the use of a private detective by the husband to procure photographs and videos of his wife.

The bench said there has to be a mechanism in place to deal with the evolving methods of evidence collection.

"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," the bench said.

The top court said legislature would need to undertake its own examination of all relevant issues and frame rules/regulations in accordance with the prevalent norms and conditions.

It said the government 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 in 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 bench said.