S. 125 CrPC | Allahabad High Court Seeks Chief Justice's Consideration Of Rules For Notice To Alleged Co-Adulterer In Maintenance Cases

Observing that a specifically named alleged co-adulterer must be given an opportunity to be heard before the court records an adverse finding against him in maintenance proceedings under Section 125 CrPC, the Allahabad High Court on Tuesday urged the Chief Justice to consider framing rules governing notice to such a person.

A bench of Justice Lakshmi Kant Shukla said that a judicial finding attributing an adulterous relationship to a specifically identified person "may have consequences beyond determining the maintenance claim and may prejudice the reputation and dignity of the person concerned".

Therefore, noting that Section 125 CrPC does not prescribe a specific procedure for impleading or notifying a named alleged co-adulterer, the Court directed the Registrar General to place the matter before the Chief Justice for appropriate consideration and directions.

Justice Shukla added that it may be considered whether separate rules should be framed or the relevant principle under Rule 6(a) of the Hindu Marriage and Divorce Rules, 1956, which provides for joining an alleged adulterer as a co-respondent in certain matrimonial proceedings, should be extended to maintenance proceedings with suitable modifications.

The bench thus dismissed a husband's criminal revision challenging a Family Court order directing him to pay maintenance of ₹20,000 per month to his wife and ₹10,000 per month to their minor son

Case in brief

The husband-revisionist had challenged the Family Court's March 2025 order passed in proceedings instituted by his wife and minor son under Section 125 CrPC.

He alleged that his wife was living in adultery with a person (specifically named in the petition). This, he claimed, constituted living separately without sufficient reason and hence, the wife was not eligible for maintenance.

The revisionist also questioned the Family Court's assessment of his income and the amount of maintenance awarded.

High Court's observations

At the outset, the High Court referred to the maxim audi alteram partem (to hear the other side) as well as a verse from The Katyayana Smriti : "पूर्वपक्षश्रुतार्थस्तु प्रत्यर्थी तदनन्तरम्। पूर्वपक्षार्थसम्बन्धं प्रतिपक्षं निवेशयेत्॥"

Explaining the verse, the bench remarked thus:

"(it) embodies a simple yet profound principle, i.e., after the case of one party has been heard, the opposite party must thereafter be afforded an opportunity to place its own case before the adjudicator".

Against this backdrop, the bench observed that an adverse finding concerning an alleged adulterous relationship may affect the character, reputation and dignity of the person against whom it is recorded.

Hence, the Court opined that a specifically named and identifiable alleged co-adulterer must be afforded an opportunity of hearing before an adverse finding is recorded against him.

The Court, however, did not hold that an alleged co-adulterer must necessarily be impleaded in every proceeding under Section 125 CrPC. The Court was concerned with a situation where a court proposes to record an “adverse finding” against a specifically identified third person without hearing him.

The Court also referred to the protection of reputation guaranteed under Article 21 of the Constitution.

The High Court noted that Section 125 CrPC does not prescribe a specific procedure for impleading or issuing notice to a specifically named alleged co-adulterer.

To address this procedural gap, it directed the Registrar General to place the matter before the Chief Justice for appropriate consideration and directions.

The Court indicated that the issue could be addressed either by framing rules prescribing the procedure for impleadment or issuance of notice to such a person, or by considering the extension of the principle contained in Rule 6(a) of the Hindu Marriage and Divorce Rules, 1956 (framed by the High Court) to Section 125 proceedings, with suitable modifications.

Rule 6(a) concerns the joining of an alleged adulterer as a co-respondent in certain matrimonial proceedings founded on adultery, subject to the conditions and exceptions provided under the rule.

Can photographs without authentication prove adultery?

In its 24-page order, the bench also dealt with a significant question regarding photographs being proof of adultery in maintenance cases.

For context, the husband had relied on photographs and electronic material to substantiate his allegation of adultery against his wife. He contended that the Family Court had not accepted the material because he had not furnished a certificate under Section 65-B of the Indian Evidence Act.

Relying on Section 14 of the Family Courts Act, 1984, he argued that a Family Court could receive material that might help it deal with a dispute effectively, even if it would otherwise be inadmissible under the ordinary rules of evidence.

The High Court, however, said that the power to receive material was different from the question of its authenticity, reliability, and evidentiary value.

The bench noted that Section 14 empowers a Family Court to receive a report, statement, document, information, or other matter that may, in its opinion, help it deal effectively with a dispute, regardless of whether it would otherwise be relevant or admissible under the Indian Evidence Act.

However, the Court explained that the provision does not automatically establish the authenticity of material received by the Family Court.

Referring to Supreme Court's judgment in Himanshu Chordia v. State of Rajasthan and another 2026, the bench remarked thus:

"The said judgment does not establish that every electronic record placed before a Family Court must be accepted as proof of the facts asserted therein, nor does it dispense with the need to assess the authenticity and reliability of such material".

In the present case, the bench noted that the source and manner of creation of the photographs had not been established. No witness was identified to verify that the photographs were original and unaltered.

The Counsels for the wife and the State also questioned their reliability, arguing that some images were duplicates or similar and that certain photographs appeared composite or manipulated.

The High Court held that the photographs could not be treated as conclusive proof of adultery without adequate authentication.

"At the most, the photographs may indicate some form of association or intimacy between the persons depicted therein, but such material, in the absence of other cogent and legally admissible evidence, cannot by itself establish the allegation of adultery," the Court said.

The Court also declined the husband's request to produce additional evidence at the revisional stage under Sections 391 and 401 CrPC, observing that the power to receive additional evidence is discretionary and does not confer an automatic right to supplement the record.

Accordingly, the bench dismissed the criminal revision and upheld the direction requiring the husband to pay ₹20,000 per month to his wife and ₹10,000 per month to their minor son, with maintenance payable from the date of the application.