Allahabad HC: Seeks Rules for Section 125 CrPC Co-Adulterer Hearing

• The Allahabad High Court has requested the Chief Justice to frame rules for hearing alleged co-adulterers in Section 125 CrPC maintenance cases.
• The court observed that current procedures lack a mechanism to provide a hearing to a specifically named third party before an adverse finding of adultery.
• This directive arose from a case where a husband's appeal against a maintenance order was dismissed, despite his allegations of his wife's adultery.
• The High Court emphasized that the `audi alteram partem` principle and `principles of natural justice` require an opportunity to be heard for anyone against whom an adverse finding is proposed.
• A judicial finding of adultery is not inconsequential and can significantly impact an individual's reputation and dignity.

The High Court underscored that the summary nature of Section 125 CrPC maintenance adultery procedure does not override the fundamental requirement of fairness, especially when a judicial finding could adversely affect an individual.

The Allahabad High Court recently highlighted a procedural gap in maintenance proceedings under Section 125 of the Criminal Procedure Code, now Section 144 of the Bharatiya Nyaya Sanhita (BNSS). Justice Lakshmi Kant Shukla observed that current provisions lack a clear mechanism for hearing an individual specifically named as an alleged co-adulterer before an adverse finding is recorded against them. Consequently, the High Court has requested the Chief Justice to consider establishing rules for either issuing notice to or impleading such a named third party in these cases.

This significant observation arose during a case where a husband challenged a family court's directive to pay monthly maintenance of ₹30,000 to his wife and minor son. The Additional Principal Judge of the Family Court, Kanpur Nagar, had issued this order on March 19, 2025. The husband contended that the family court acted arbitrarily, asserting his wife was living separately without valid reason and denying any physical harm or assault on his part. He further claimed that while they resided in America, his wife had sought a divorce and expressed disinterest in having a son from their marriage or receiving any money from him.

Central to the husband's appeal was his allegation that his wife was living in adultery with another man, identified as a resident of Kanpur Nagar. He presented photographs to the family court as evidence. However, the family court rejected his electronic material, citing the absence of a certificate required under Section 65-B of the Indian Evidence Act, 1872 (now Section 63 of the Bharatiya Sakshya Adhiniyam), which governs the admissibility of electronic records. The husband argued that Section 14 of the Family Courts Act, 1984, permits family courts to accept material that aids in resolving disputes, even if it might not strictly adhere to the Evidence Act's admissibility rules. He also sought permission from the High Court to introduce additional evidence in his revision plea, invoking Sections 391 and 401 CrPC. During the High Court hearing, the bench inquired if the alleged co-adulterer had been served notice, to which the husband's counsel responded that no notice was deemed necessary for "only the co-adulterer." The High Court ultimately upheld the family court's maintenance order.

The court's concern stems from Section 125(4) CrPC, which stipulates that a wife is not entitled to maintenance if she is "living in adultery." Justice Shukla emphasized that a court cannot record an adverse finding of adultery against a specifically identified third person without first providing them an opportunity to defend themselves. This principle is rooted in `audi alteram partem`, a fundamental component of the `principles of natural justice`, which dictates that no person should be judged without a fair hearing. The High Court underscored that the summary nature of `Section 125 CrPC maintenance adultery procedure` does not override the fundamental requirement of fairness, especially when a judicial finding could adversely affect an individual.

The bench clarified that a judicial finding attributing an adulterous relationship to a named individual is far from an inconsequential observation. Such a determination carries significant weight, potentially impacting the person's reputation and dignity well beyond the immediate scope of the maintenance dispute. Therefore, even in summary proceedings, the need for due process and an opportunity to be heard for an `alleged co-adulterer` remains paramount. The court's distinction between the necessity of impleading and the necessity of hearing underscores the procedural void it seeks to address.

The Allahabad High Court's proactive stance on the `Allahabad HC Section 125 CrPC co-adulterer hearing` has significant implications for future `maintenance petitions` where adultery is alleged. By urging the Chief Justice to formulate specific rules, the court is paving the way for a more robust and equitable `procedure` for addressing such sensitive allegations. This move aims to ensure that `principles of natural justice` are consistently applied, protecting the rights and reputation of all parties involved, including third parties who might otherwise be condemned without a chance to present their side.

This development means that legal practitioners handling `Section 125 CrPC maintenance adultery procedure` cases, or those under the new `Bharatiya Nyaya Sanhita Section 144 BNSS`, should anticipate potential changes in how these allegations are handled. The emphasis on `audi alteram partem` for an `alleged co-adulterer` could necessitate formal notice or even `impleadment` of such individuals, thereby altering litigation strategies for both petitioners and respondents. It also reinforces the importance of proper `admissibility electronic evidence Section 65B` compliance, as seen in the husband's failed attempt to introduce evidence without the requisite certificate, highlighting the procedural rigor expected even when broader admissibility under the Family Courts Act is argued.

Lawyers handling maintenance petitions under Section 125 CrPC (or its successor, Section 144 BNSS) where adultery is alleged against a specifically named third party should anticipate potential procedural changes or challenges. The Allahabad High Court's stance emphasizes the need for due process and an opportunity for the alleged co-adulterer to be heard, which could impact the strategy for proving or defending such allegations and may require advocating for or against the impleadment of third parties.

Source: Original reporting via legal news outlet