Section 125(4) of the CrPC — now carried forward in Section 144(4) of the BNSS — disentitles a wife "living in adultery" from maintenance. Husbands frequently invoke it; few appreciate the standard of proof it demands. In Criminal Revision No. 3039 of 2025, decided on 13 October 2026, the Allahabad High Court dismissed a husband's revision against a Family Court order of Rs 20,000 per month to the wife and Rs 10,000 to the minor son, holding that photographs and electronic records filed without the statutory certificate proved nothing, and — notably — that a court cannot record a finding of adultery against a named third party who was never given an opportunity of hearing. The Court also set an institutional ball rolling: it asked that the Chief Justice consider framing a procedure for notice to alleged co-adulterers in maintenance proceedings.
The proceedings below
The Family Court at Kanpur Nagar, by order dated 19 March 2025 in Case No. 172 of 2021, directed the husband to pay monthly maintenance of Rs 20,000 to his wife and Rs 10,000 to the couple's minor son. The husband filed a criminal revision. His central defence was Section 125(4): the wife, he alleged, was living in adultery with a named individual, and he relied on photographs and electronic material to prove it.
Four questions, four answers
Electronic material
Received under Section 14 of the Family Courts Act, but never proved — no Section 65-B certificate, no authentication. Receipt is not proof.
The named third party
No adverse finding of adultery can be recorded against him unheard. The husband never sought notice to him, so the plea failed at the threshold.
Fresh evidence in revision
Declined. Revision tests the order on the existing record; it is not a second trial.
The quantum
No illegality or perversity shown. Rs 20,000 for the wife and Rs 10,000 for the child affirmed.
The judgment's most consequential passage looks beyond the parties. Noting that Section 125 CrPC contains no procedure prescribing how an alleged co-adulterer is to be brought before the court, the Court directed the Registrar General to place the matter before the Chief Justice to consider either framing rules for impleadment or notice, or extending the principle of Rule 6(a) of the Hindu Marriage and Divorce Rules, 1956 — which requires a co-adulterer to be joined in a divorce petition founded on adultery — to maintenance proceedings. Practitioners in Uttar Pradesh should watch for rules that may follow; the logic will be persuasive elsewhere, including in Delhi.
The transition to the BNSS regime
CrPC (until 30 June 2024)
Section 125: maintenance of wife, children and parents. Section 125(4): no maintenance to a wife living in adultery, refusing without sufficient reason to live with the husband, or living separately by mutual consent.
BNSS (from 1 July 2024)
Section 144: the same scheme, with Section 144(4) carrying the identical disqualifications. Electronic records are now proved under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, which preserves the certificate requirement.
What this means in practice
For husbands, the decision is a caution against treating Section 125(4) as a shortcut. The defence requires pleading and proving a continuing adulterous relationship through admissible evidence: authenticated electronic records with the statutory certificate, witnesses who can withstand cross-examination, and — where a specific person is named — an application seeking notice to him so that any finding can lawfully be recorded. An adultery plea that fails, apart from not defeating maintenance, can colour the court's view of the husband's bona fides.
For wives and claimants, the judgment reinforces that maintenance cannot be stalled by scandalous but unproved allegations. The Family Court's relaxed evidentiary gate under Section 14 works both ways: material comes in easily, but it earns no weight until proved. A claimant facing such a defence should insist on strict proof, press the absence of the certificate for every electronic record, and point out that a stray allegation is not "living in adultery" within the meaning of the provision.
Maintenance orders under Section 125 CrPC / Section 144 BNSS are quasi-civil in nature and turn on their own facts. This summary of a recent Allahabad High Court judgment is for general information only and is not legal advice.
Frequently Asked Questions
What does "living in adultery" mean for maintenance purposes?
Courts have consistently read Section 125(4) CrPC — and now Section 144(4) BNSS — as requiring a continued, ongoing adulterous course of conduct, not a stray allegation or an isolated lapse. The burden rests on the husband, and the proof must be of the quality a quasi-civil proceeding demands, not suspicion or innuendo.
Why were the husband's photographs rejected?
Section 14 of the Family Courts Act lets a Family Court receive any material that may assist it, relaxing the formal rules of evidence. But receiving material is not proving it. The photographs and electronic records were never authenticated — no certificate under Section 65-B of the Evidence Act (the counterpart is Section 63 of the Bharatiya Sakshya Adhiniyam, 2023) and no supporting testimony — so they could not sustain a finding of adultery.
Why does the alleged co-adulterer have to be heard?
A finding that a named person committed adultery stigmatises him and prejudices his civil rights, and natural justice bars a court from condemning a person unheard. The High Court held that before recording an adverse finding of adultery against such a person, an opportunity of hearing is necessary; since the husband never sought notice to the named man, the plea could not be accepted.
Can new evidence be added at the revision stage?
Ordinarily no. The revisional court tests the legality and propriety of the order on the record as it stood. The request to introduce additional evidence in revision was declined in this case; the place to prove a Section 125(4) defence is the trial before the Family Court.