Interim maintenance under Section 125 of the Code of Criminal Procedure is meant to be swift, but it is not meant to be mechanical. In Himanshu Chordia v. State of Rajasthan & Anr., 2026 INSC 778, decided on 31 July 2026, the Supreme Court held that an application under Section 125(4) — the provision that disqualifies a wife living in adultery from claiming maintenance — cannot be brushed aside at the interim stage with the observation that such questions must await trial. Where the material placed on record ex facie establishes the charge, the disqualification operates at the interim stage as well.
The Background
The parties married in 2014. Following matrimonial discord, the wife left the matrimonial home in 2020 with the child of the marriage and in due course sought maintenance under Section 125 of the Code of Criminal Procedure. The husband responded with an application under Section 125(4), contending that the wife was living in adultery and had therefore forfeited her entitlement, and placed photographic material on record in support of the plea.
The trial court dismissed the application, holding that a question of that nature could be gone into only at the final hearing of the maintenance petition. The High Court affirmed. A bench of Justice Sanjay Karol and Justice Vipul M. Pancholi disagreed with both courts, allowed the appeal on 31 July 2026, and remanded the Section 125(4) application for a decision on its merits.
What the Supreme Court Held
The bar is not a trial-stage plea alone
Section 125(4) enacts a statutory disqualification. If every such plea were deferred to the final adjudication, the provision would be rendered meaningless at the very stage where maintenance is most often actually paid — the interim stage.
The threshold is ex facie proof
Interim maintenance may be refused only where the material placed by the husband ex facie establishes the charge. The Court insisted on clear and cogent evidence; suspicion, insinuation or a bare averment does not meet the standard.
Until then, interim maintenance continues
Pending a decision on the Section 125(4) application, the wife's claim to interim maintenance is not suspended. The disqualification bites only when the court is satisfied on the face of the record.
The Three Stages of a Maintenance Proceeding
The Position Under the New Code
CrPC, 1973
Section 125 governs maintenance of wives, children and parents; Section 125(4) contains the disqualification for a wife living in adultery, refusing without sufficient reason to live with her husband, or separation by mutual consent.
BNSS, 2023
Section 144 replicates the maintenance scheme for proceedings under the new code, with Section 144(4) carrying the same disqualification. The reasoning in this judgment applies with equal force to applications under the BNSS.
What This Means in Practice
For a respondent-husband in the Family Courts, the judgment confirms that a Section 125(4) application is not a formality to be noted and forgotten. But it also sets the price of taking that course: the plea must be supported by material of a quality capable of establishing the disqualification on its face. An application built on conjecture will fail, and may colour the court's view of the respondent's bona fides on quantum.
For a claimant-wife, the decision does not dilute the protective character of Section 125, which the Supreme Court has repeatedly described as a measure of social justice. Interim maintenance remains the norm while the petition is pending. What has changed is that a properly supported disqualification plea must now be met on its merits at the interim stage, rather than answered with the submission that the question is premature.
The matter was remanded, not decided. The Supreme Court expressed no view on whether the material in this particular case established the plea; it held only that the courts below were wrong to refuse to examine it. The evidentiary battle in such cases remains to be fought, application by application, before the Family Courts.
Frequently Asked Questions
Does this judgment mean interim maintenance can always be resisted by alleging adultery?
No. A bare allegation changes nothing. The Supreme Court was careful to require material that ex facie — on its face — establishes the disqualification, described as clear and cogent evidence. If the material only raises a disputed question needing full trial, interim maintenance would follow the ordinary course and the Section 125(4) plea would be examined at the final stage.
What exactly does Section 125(4) CrPC provide?
Section 125(4) provides that a wife is not entitled to receive maintenance from her husband if she is living in adultery, or if without sufficient reason she refuses to live with her husband, or if they are living separately by mutual consent. Its counterpart in the new code is Section 144(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023, which is in materially similar terms.
What had the courts below done in this case?
The Family Court had dismissed the husband's application under Section 125(4), reasoning that the plea of adultery could only be decided at the final adjudication of the maintenance petition, and the High Court upheld that view. The Supreme Court set both orders aside and remanded the application to the trial court to be decided on its merits.
Does an adultery finding at the interim stage affect the child's maintenance?
The disqualification in Section 125(4) attaches to the wife's claim. A child's entitlement to maintenance stands on its own footing and is not defeated by allegations between the parents. Orders for a minor child are assessed on the child's needs and the parents' capacity.