A court must adjudicate an application contesting maintenance on grounds of adultery upon presentation of prima facie, credible evidence, rather than postponing the determination to the final stage, as this ensures the legislative intent of the statutory bar is upheld without rendering it otiose.

JUDGMENT :

SANJAY KAROL, J.

1. Leave granted.

2. The question in this appeal is best explained by way of an illustration: A and B are husband and wife. Due to strained relations between them, they began living separately, and B filed for maintenance. One of the primary reasons, as alleged by A for their separation, is the promiscuity of B and her adulterous relationship with other people. In such a scenario, is A obligated to pay B interim or final maintenance?

3. The factual and legal backdrop of this appeal is as follows:

3.1 Himanshu Chordia, the appellant, married Arushi Jain, Respondent no. 2, on 7th July 2014. Trouble started brewing a few years into their marriage, which resulted in, allegedly, the hurling of allegations by Respondent no.2 towards the appellant and also some complaints before the Bangalore Police. She finally left her matrimonial home on 13th May 2020 along with the child born from this union and her valuables. On 5th November 2020, she filed an application under Section 125 of the Code of Criminal Procedure, 1973,¹[CrPC] being Main Case No. 570/2021, and an application for interim maintenance bearing number 1328/2021, before the Special Additional Chief Judicial Magistrate, PCPNDT Cases, Udaipur. Almost contemporaneously, but in fact, prior in point of time, the Appellant had filed applications under the Guardians and Wards Act, 1890, which is not the subject matter before us. After some back and forth litigation, including both the parties approaching the High Court for one thing or another, the proceedings to decide Respondent No.2’s case started in earnest on 6th October 2023 after the High Court, in a Criminal Miscellaneous Petition filed by Respondent no. 2, directed the Court seized of the maintenance case to decide the same within 3 months.

3.2 In such proceedings, the appellant filed an application under Section 125(4), CrPC contending that on account of adulterous relationships, Respondent No.2 is not entitled to any interim maintenance, given the express bar contained in the section. It is the Appellant’s case that he filed proof to substantiate his allegation not only in the main application but also by way of additional affidavits. The Respondent No.2 then filed an application for modification of the order dated 4th October 2023, asking for the interim application for maintenance to be decided within 3 months, which came to be allowed by order dated 4th December 2023. This ex-parte order was sought to be set aside by the Appellant by way of another Criminal Miscellaneous Petition bearing No. 522 of 2023 which is pending before the High Court.

3.3 The Special Additional Chief Judicial Magistrate²[‘Trial Court’], PCPNDT Cases, Udaipur dismissed the Appellant’s application under Section 125(4) CrPC along with an application under Section 91 CrPC vide order dated 27th June 2024. The operative portion of the order is as under: -

“During the arguments, the Ld. Counsel for the petitioner said that the petitioners was at different place on the date and time as mentioned in the petitioner’s documents. The petitioner has also presented some documents in support of her claim showing her presence at different place than the documents. The respondent’s allegations regarding the petitioner’s adultery with Deepak Mundra are mainly based on photographs and CD. However, the court cannot conclude on the authenticity and