Section 125 CrPC: Allahabad HC Flags Absence of Procedure to Hear Named Alleged Co-Adulterer

The Allahabad High Court has asked the Chief Justice to consider framing rules for issuing notice to, or impleading, a specifically named alleged co-adulterer in maintenance proceedings under Section 125 CrPC (now Section 144 BNSS), observing that the provision does not prescribe a procedure for hearing such a person before an adverse finding is recorded against him.

Adultery and Section 125 CrPC maintenance claim

Section 125(4) CrPC excludes maintenance entitlement where a wife is “living in adultery”.

The bench of Justice Lakshmi Kant Shukla said that a court deciding a maintenance claim cannot record an adverse finding of adultery against a specifically identified third person without giving him an opportunity to defend himself, stressing that summary proceedings under Section 125 CrPC do not displace the principles of natural justice.

"The principle of audi alteram partem requires that a specifically identified person, against whom an allegation of adultery is made and against whom an adverse finding is proposed to be recorded, ought to be afforded an opportunity of hearing," Justice Shukla observed.

Maintenance order

Court upheld a family court order directing the husband to pay monthly maintenance of ₹30,000 in total to his wife and minor son, dismissing his challenge to the order of Additional Principal Judge, Family Court, Kanpur Nagar dated March 19, 2025.

The husband challenged the family court order, contending that, on his wife's maintenance petition, the family court had acted arbitrarily.

He alleged that his wife was living separately without sufficient reason and that he had not assaulted or physically harmed her. He also claimed that, while the couple were living in America, his wife had asked him to divorce her and had expressed that she did not want a son from the marriage or any money from him.

He further alleged that his wife was living in adultery with another man, a resident of Kanpur Nagar. He relied on photographs filed before the family court. He argued that the family court had wrongly rejected electronic material because the certificate required under Section 65-B of the Indian Evidence Act, 1872 (now Section 63 of the Bharatiya Sakshya Adhiniyam), had not been furnished.

Section 65B of the Indian Evidence Act governs the admissibility of electronic records and computer outputs as documents in court proceedings without needing to produce the original device.

He argued that Section 14 of the Family Courts Act, 1984, permitted the family court to receive material that could assist it in effectively resolving the dispute, even if it would not otherwise be admissible under the Evidence Act.

He also sought permission to introduce additional evidence before the high court in his revision plea, taking refuge in Sections 391 and 401 CrPC.

Notice to alleged co-adulterer

During the hearing, the bench inquired if any notice had been issued to the other man, whom the husband was claiming to be the co-adulterer. The husband’s counsel maintained that no notice was necessary since he was only the co-adulterer.

Court said that the summary nature of Section 125 CrPC proceedings does not displace the requirement of fairness where a person may be adversely affected by a judicial finding.

“A judicial finding attributing an adulterous relationship to a specifically identified person cannot be regarded as an inconsequential observation," the bench said. It emphasised that said such a finding may affect reputation and dignity beyond the immediate maintenance dispute.

Court distinguished between the question of whether an alleged co-adulterer must be impleaded in every maintenance proceeding and whether a court can record an adverse finding against a specifically identified co-adulterer without hearing him.

It referred to Rule 6(a) of the Hindu Marriage and Divorce Rules, 1956, framed by the Allahabad High Court, which requires an alleged adulterer or adulteress to be made a co-respondent in divorce or judicial separation proceedings on the ground of adultery, subject to specified exceptions.

While acknowledging that proceedings under the Hindu Marriage Act and Section 125 CrPC operate in different statutory fields, court said the underlying principle of fairness and protection of reputation could not be regarded as irrelevant in maintenance proceedings involving the same allegation.

Court said that where a husband specifically names a third person as his wife's alleged paramour and the court proposes to record an adverse finding against that person, he must be given an opportunity to explain, controvert or rebut the allegation.

Court pointed out that Section 125 CrPC does not contain any specific procedural provision prescribing how a specifically named alleged co-adulterer should be impleaded or served with notice.

Therefore, observing that the absence of such provision creates a procedural gap that warrants consideration, court directed the Registrar General to place the matter before the Chief Justice for appropriate directions, including consideration of framing rules prescribing the procedure for impleadment or issuance of notice to a specifically named alleged co-adulterer, or extending the principle under Rule 6(a) of the Hindu Marriage and Divorce Rules to Section 125 proceedings with necessary modifications.

Order on the maintenance

In the case at hand, regarding the photographs relied upon by the husband, court said that their source, manner of creation and authenticity had not been established. No witness had been identified to verify that the photographs were original and unaltered. It, therefore, held that the material could not be treated as conclusive proof of adultery.

Court also rejected the husband's request to introduce additional evidence at the revisional stage under Sections 391 and 401 CrPC, observing that the power was discretionary and did not confer an automatic right to introduce further material.

Therefore, finding no ground warranting interference with the maintenance order, court dismissed the criminal revision and affirmed the family court's order.

Case Title: Xxx v. State of U.P. and 2 Others

Order Date: October 13, 2026

Bench: Justice Lakshmi Kant Shukla