16 October 2026 Legal Update

Named Alleged Co-Adulterer Must Be Heard Before Adverse Finding of Adultery in Section 125 CrPC Proceedings; Court Asks for Rules on Procedure : Allahabad High Court

Case details

Case: Gaurav Srivastav v. State of U.P. and 2 Others (Criminal Revision No. 3039 of 2025)
Court: High Court of Judicature at Allahabad (Court No. 84); marked A.F.R. (approved for reporting)
Bench: Justice Lakshmi Kant Shukla (single Judge)

Who is who

Revisionist: Gaurav Srivastav, the husband. Counsel: Mr. Kalyan Sundram Srivastava and Mr. Raghunandan Singh.
Opposite Party No. 2: Smt. Meenakshi Srivastava, the wife, who claimed maintenance. Opposite Party No. 3: the couple's minor son. Opposite Party No. 1: State of U.P. Counsel: the learned AGA and Mr. Santosh Kumar Singh (for Opposite Party Nos. 2 and 3).
Alleged co-adulterer: Sumit Tripathi, resident of Kanpur Nagar, named by the husband as the person with whom the wife was allegedly in a relationship. He was not a party and no notice had been issued to him.

Facts of the case

In Case No. 172 of 2021 (Smt. Meenakshi Srivastava and another v. Gaurav Srivastava) under Section 125 CrPC, the Additional Principal Judge, Family Court No. 3, Kanpur Nagar (the “Trial Court”) passed a judgment and order dated 19.03.2025. It directed the husband to pay maintenance of Rs. 20,000 per month to the wife and Rs. 10,000 per month to the minor son, from the date of the application.
The husband filed this criminal revision. He argued that the order was arbitrary, cursory and mechanical, that his actual income was not determined and the amount was disproportionate, and that his evidence that the wife lived separately without sufficient reason was ignored. He also said his final written submissions were not considered and that the wife did not properly furnish the asset-and-liability affidavit required by Rajnesh v. Neha ((2021) 2 SCC 324).
His main ground was that the wife was “living in adultery” and so barred by Section 125(4) CrPC. He relied on photographs (Paper Nos. 24/7 to 24/14 and 41/109 to 41/116) and electronic records. The Trial Court had declined to consider the electronic records because no certificate under Section 65-B of the Indian Evidence Act had been filed.
He also said that, while the couple lived in America, the wife used to ask him to divorce her and said she neither wanted a son from the marriage nor any amount from him.
At the hearing the Court asked whether notice had been issued to Sumit Tripathi. Counsel replied that no notice was needed because he was only the alleged co-adulterer.

Legal provisions and precedents

Section 125 CrPC, including Section 125(4) (a wife living in adultery is not entitled to maintenance), and Sections 391 and 401 CrPC (additional evidence and revisional powers).
Section 14, Family Courts Act, 1984 (the Family Court may receive any material that may assist it, whether or not admissible under the Evidence Act) and Section 65-B, Indian Evidence Act, 1872 (certificate for electronic records).
Order I Rule 10(2) CPC (adding parties, used only as guidance) and Article 21 (reputation as part of the right to life).
Rule 6, Hindu Marriage and Divorce Rules, 1956 (Allahabad High Court): in a divorce or judicial separation petition on the ground of adultery, the petitioner must make the alleged adulterer or adulteress a co-respondent unless excused by the Court.
Cases for the revisionist: Himanshu Chordia v. State of Rajasthan (2026 SCC OnLine SC 1461), Praveen Kumar Singh v. State of U.P. (Cr. Rev. No. 6409 of 2025, 2026:AHC:34917), Lumeshwari alias Pinky v. Rajesh Dubey (Madhya Pradesh High Court), Bhagwan Swaroop v. State of U.P. (2014 SCC OnLine All 16067), Radhika Devi v. Abhishekh Kumar Gupta (Jharkhand High Court) and Shivi Bansal v. Gaurav Bansal (Delhi High Court, Division Bench).
Cases used by the Court: Chaturbhuj v. Sita Bai ((2008) 2 SCC 316), Rajnesh v. Neha, Maneka Gandhi v. Union of India ((1978) 1 SCC 248), Neeraj Garg v. Sarita Rani ((2021) 9 SCC 92), Subramanian Swamy v. Union of India ((2016) 7 SCC 221), Arun Kumar Agrawal v. Radha Arun (AIR 2003 Karnataka 508), Bhaktvatsal Singh Rajput v. Vandana Rajput (2018 AIR (Chh) 190) and Udai Narain Bajpai v. Smt. Kusum Bajpai (AIR 1975 Allahabad 94).

Issues before the Court

Whether the electronic material relied on by the revisionist could be considered by the Family Court in view of Section 14 of the Family Courts Act, and the Section 65-B certificate objection.
Whether a specifically named alleged co-adulterer must be given an opportunity of hearing before adultery proceedings are adjudicated under Section 125 CrPC.
Whether additional evidence can be received at the revisional stage under Sections 391 and 401 CrPC.
Whether the other grounds disclose any basis to interfere with the maintenance order.

Contentions

1. Revisionist

Family Court proceedings are summary, so technical modes of proof and Section 65-B certificates should not be insisted on, and Section 14 of the Family Courts Act lets such material be received (Himanshu Chordia, Praveen Kumar Singh, Lumeshwari).
No notice to Sumit Tripathi was needed, as he was only the alleged co-adulterer, and none of the cited cases require it. The new documents filed with the revision should be considered, relying on Bhagwan Swaroop (a revisional court can take additional evidence).

2. State and Opposite Party Nos. 2 and 3

None of the cases relied on dispenses with notice to an alleged co-adulterer. The photographs were not proved in accordance with law, and several are identical (Paper No. 24/7 and 41/109) or duplicates of each other (24/8 to 24/14 and 41/110 to 41/116).
Paper Nos. 24/9 and 41/110 appear to be a Photoshop composite of two photographs with a love caption. Even taken at face value, the photographs show at most association or intimacy and cannot establish adultery without other cogent and admissible evidence.
Revisional power under Section 401 CrPC is circumscribed by its own limits, so the prayer to take additional evidence should be refused.

Reasoning of the Court

1. Issue (i): electronic material

Section 14 gives the Family Court flexibility to receive material, but it does not make every document or electronic record authentic, reliable or sufficient to prove the fact. Himanshu Chordia stresses verifying the source and accuracy of electronic records and does not say all electronic records must be accepted. Praveen Kumar Singh and Lumeshwari turn on the Family Court's power to receive material and do not remove the need for judicial scrutiny.
Here nothing established the source, manner of creation or authenticity of the photographs. No witness was identified who took or recorded them and could verify them as original and unaltered. Reception and admissibility are therefore distinct from authenticity, reliability and evidentiary value, and the material could not be treated as conclusive proof of adultery.

2. Issue (ii): hearing for the named co-adulterer

Section 125 is a measure of social justice against destitution and vagrancy (Chaturbhuj; Rajnesh). Because Section 125(4) bars maintenance to a wife living in adultery, the Court may have to examine an allegation of adultery that is specifically pleaded and relied on.
The summary nature of the proceeding does not exclude natural justice. Where adverse observations are proposed against an identifiable person, he must have an opportunity to explain or defend himself (Maneka Gandhi; Neeraj Garg). Here the allegation is against a named and identifiable person, and a finding of adultery attributes sexual misconduct to him. Reputation is part of the right to life under Article 21 (Subramanian Swamy), and the Karnataka and Chhattisgarh decisions recognise the need to hear him.
Order I Rule 10(2) CPC does not strictly apply, but it offers guidance. The Court said the narrow question was not whether the co-adulterer is a necessary party in every Section 125 case, but whether the Court can record an adverse finding of adultery against a named person without giving him any opportunity to respond.
The Court distinguished Shivi Bansal (Delhi) and Radhika Devi (Jharkhand), which arose in divorce proceedings, because Rule 6 of the Allahabad High Court's Hindu Marriage and Divorce Rules, 1956 requires the alleged adulterer to be joined as co-respondent. It said the principle in Shivi Bansal was contrary to Rule 12 of the Delhi High Court Hindu Marriage Rules, 1979 and that in Radhika Devi contrary to Rules 16-18 of the Patna rules. Citing Udai Narain Bajpai, it explained that a finding destroying a person's character and reputation without a hearing offends natural justice.
Although Hindu marriage and Section 125 proceedings operate in different fields, the same fairness and protection of reputation cannot be regarded as wholly irrelevant. A judicial finding of adultery against a specifically identified person has consequences beyond the maintenance claim, and the summary nature of the proceeding does not change the prejudice. The Court rejected the husband's adultery submission, particularly because he named Sumit Tripathi but made no effort to have notice issued to him or bring him before the Court.

3. Issue (iii): additional evidence in revision

Section 401(1) CrPC allows the High Court, in its discretion, to use the appellate power in Section 391 to take additional evidence, but this is not an automatic right (Bhagwan Swaroop). Merely filing documents with a revision does not make them evidence. The material was not satisfactorily authenticated, no supporting witness was identified, and the named co-adulterer had not been heard, so the request was declined.

4. Issue (iv): other grounds

The Court found that no error had been shown in the Trial Court's order that would justify interference in revision. Revisional jurisdiction cannot be invoked merely because another view of the material is possible. The judgment does not separately discuss the husband's income, the quantum of maintenance, the reason for separate living, or the asset affidavit.

Held

The criminal revision was dismissed and the Trial Court's order dated 19.03.2025 (maintenance of Rs. 20,000 per month to the wife and Rs. 10,000 per month to the minor son) was affirmed. The Court stressed that its natural-justice discussion concerns only the hearing of a named alleged co-adulterer and not the merits of the maintenance claim.

Directions: noting that Section 125 CrPC has no provision on impleading or giving notice to a named alleged co-adulterer, while Rule 6(a) of the Hindu Marriage and Divorce Rules provides for it in divorce cases, the Court directed the Registrar General to place the matter before the Chief Justice. The Chief Justice is to consider framing rules for impleading or giving notice to a specifically named alleged co-adulterer in Section 125 proceedings, or extending the principle of Rule 6(a), with necessary modifications, to such proceedings.

Key legal principles established

Section 14 of the Family Courts Act lets a Family Court receive electronic material, but receiving it does not prove its contents. Its source, authenticity and reliability must still be shown, and a Section 65-B certificate objection is separate from the question of evidentiary value.
Where a husband alleges adultery under Section 125(4) CrPC and names the alleged co-adulterer, an adverse finding of adultery cannot be recorded against that person without giving him an opportunity of hearing, because audi alteram partem and the right to reputation under Article 21 apply even in summary proceedings.
A husband who names an alleged co-adulterer but makes no effort to bring him before the Court cannot rely on the adultery allegation to defeat maintenance.
Additional evidence at the revisional stage is discretionary (Sections 391 and 401 CrPC) and will not be taken where the material is not authenticated or shown to be necessary.
Revisional jurisdiction is not an appeal on facts, and interference needs a demonstrated error and not merely the possibility of another view.
Rule 6 of the Allahabad High Court's Hindu Marriage and Divorce Rules makes the alleged adulterer a necessary party in divorce or judicial separation petitions on the ground of adultery, and the High Court asked for a procedure to be framed for Section 125 proceedings.