Wife Is Accused of Adultery or Desertion - What Level of Proof Is Required Before Maintenance Can Be Denied?
Legally reviewed and updated: 11 September 2026
Legal research by Advocate Ankit Kumar Singh.
Direct Answer: Allegation Is Not Proof
A husband cannot ordinarily defeat a wife's maintenance claim simply by writing:
“She is adulterous.”
or:
“She deserted me.”
The current statutory provision is Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
Section 144(4) expressly bars maintenance under that provision where the wife:
- is living in adultery;
- without sufficient reason refuses to live with her husband; or
- is living separately from the husband by mutual consent.
The distinction between an accusation and a proved statutory disqualification is fundamental.
ALLEGATION → EVIDENCE → PROOF → ONLY THEN STATUTORY CONSEQUENCE.
Supreme Court 2026: Himanshu Chordia Changes the Interim-Maintenance Strategy
The most important current decision is Himanshu Chordia v. State of Rajasthan & Anr., 2026 INSC 778, decided on 31 July 2026.
The husband opposed his wife's maintenance claim on the ground that she was allegedly living an adulterous life.
The subordinate Courts took the view that the adultery objection could be examined only during final adjudication.
The Supreme Court disagreed.
The Court held that a statutory objection under Section 125(4) CrPC cannot simply be made meaningless by postponing it until after the entire maintenance case is concluded.
However, the Supreme Court did not say:
“Whenever adultery is alleged, immediately stop maintenance.”
Instead, it created a much more careful evidentiary approach.
What Must the Husband Show to Stop Interim Maintenance?
The Supreme Court held that if the husband wants maintenance denied at the interim stage itself on the ground of adultery, he must present:
CLEAR AND COGENT EVIDENCE WHICH ESTABLISHES THE ALLEGATION EX FACIE.
“Ex facie” means that the statutory bar should emerge on the face of the reliable material placed before the Court.
If such a situation is:
- admitted by the wife; or
- demonstrated through sufficiently clear material on its face,
interim maintenance can be stopped and the maintenance claim can face dismissal in accordance with law.
But if the husband's material consists of disputed:
- photographs;
- screenshots;
- electronic files;
- messages;
- call records;
- location records;
- other circumstantial material;
which requires authentication, explanation, cross-examination or legal proof, the Court must undertake that exercise before conclusively applying the statutory bar.
Does Interim Maintenance Stop Merely Because a Section 144(4) Objection Has Been Filed?
No.
The filing of the objection itself does not create the disqualification.
Himanshu Chordia recognises the practical distinction:
| Situation | Interim Maintenance Consequence |
|---|---|
| Adultery admitted | Statutory bar may operate immediately. |
| Clear and cogent material establishes adultery ex facie | Interim maintenance can be denied/stopped after judicial determination. |
| Electronic/circumstantial evidence is disputed and needs proof | Evidence must be tested; interim maintenance ordinarily continues during the intervening period. |
| Only a bare allegation exists | No automatic bar. |
Current Law: Section 144 BNSS Replaces the Old Section 125 Framework
Many reported judgments use Section 125 CrPC because those proceedings were instituted under the earlier Code.
The corresponding current provision is Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023.
The material disqualification language has been carried forward.
Section 144(4) provides that a wife is not entitled to maintenance or interim maintenance under that section if she is:
- living in adultery;
- refusing without sufficient reason to live with her husband; or
- living separately by mutual consent.
Section 144(5) further permits cancellation of an existing maintenance order upon proof of the relevant disqualification.
Patna High Court: Suman Devi Shows How Strong the Evidence Must Actually Be
In Suman Devi @ Suman Gupta v. Chote Lal Gupta, Criminal Revision No.1080 of 2019, decided on 18 March 2025, the Family Court had denied maintenance to the wife after accepting the husband's adultery case.
Patna High Court found that approach legally unsustainable.
The husband had essentially made a one-line allegation that his wife was living in adultery even after marriage.
But he failed to state:
- when the alleged adulterous life occurred;
- where it occurred;
- with whom it occurred;
- what specific continuing conduct constituted “living in adultery.”
Patna High Court also found that proper evidence had not been led to establish the allegation.
The adverse adultery finding was therefore held erroneous.
“Living in Adultery” Is Not the Same as One Alleged Lapse
This is one of the most important distinctions in maintenance litigation.
The statutory words are not:
“if she has ever committed an act of adultery.”
The words are:
“if she is living in adultery.”
Patna High Court in Suman Devi explained that “living in adultery” denotes a continuous course of adulterous conduct.
An isolated or occasional lapse is not automatically equivalent to the statutory condition.
Therefore:
ONE OLD INCIDENT ≠ AUTOMATIC SECTION 144(4) DISQUALIFICATION.
The husband must establish the factual pattern necessary to bring the case within the actual statutory expression.
Premarital Relationship Is Not the Same as “Living in Adultery” During Marriage
Another important feature of Suman Devi was the husband's reliance upon alleged sexual conduct before the marriage.
Patna High Court explained that adultery is matrimonial infidelity occurring in the context of an existing marriage.
An alleged premarital relationship is not, by itself, proof that the wife was “living in adultery” after marriage for purposes of the maintenance disqualification.
If the husband alleges that the relationship continued after marriage, that continuation itself must be properly pleaded and proved.
Kaushlendra Thakur: Section 125(5) Says “On Proof”
In Kaushlendra Thakur @ Pintu v. State of Bihar & Ors., Criminal Miscellaneous No.789 of 2016, decided on 20 September 2023, the husband sought cancellation of an existing maintenance order.
He alleged both:
- adultery; and
- desertion/refusal to live with him.
Patna High Court emphasised the statutory expression:
“ON PROOF”.
The Court held that cancellation could not be ordered merely because those allegations had been made.
The husband had to prove the statutory circumstances.
The Court found that he had not discharged that burden.
What Does “Proof” Mean in a Maintenance Proceeding?
Maintenance proceedings are not criminal trials merely because the procedure historically appeared in the Criminal Procedure Code.
The Supreme Court in Himanshu Chordia reiterated that maintenance proceedings are essentially civil in nature.
Therefore the standard is ordinarily:
PREPONDERANCE OF PROBABILITIES.
That means the Court evaluates whether the asserted fact is more probable than not on the legally admissible and reliable material.
But because allegations of sexual infidelity are serious and potentially damaging, Courts should not infer the statutory bar from:
- rumour;
- character attacks;
- family suspicion;
- unverified screenshots;
- one photograph without context;
- mere friendship;
- telephone contact alone.
Direct Evidence vs Circumstantial Evidence
The Supreme Court in Himanshu Chordia recognised both direct and circumstantial evidence.
Direct evidence may establish the fact more immediately.
Circumstantial evidence requires the Court to evaluate interconnected circumstances.
Potential evidence may include:
- admissions;
- consistent cohabitation evidence;
- hotel records;
- travel documents;
- neighbourhood or independent witnesses;
- messages;
- photographs;
- call-detail records;
- location material;
- financial transactions;
- other conduct indicating a continuing relationship.
No particular item automatically proves “living in adultery.”
The totality must be assessed.
Electronic Evidence Must Be Proved, Not Merely Printed
A common maintenance defence is:
“I have WhatsApp screenshots and photographs, therefore maintenance must stop.”
That is too simplistic.
The Court may need to examine:
- whose device produced the material;
- authenticity;
- date and time;
- editing/manipulation allegations;
- metadata;
- legal certification requirements;
- identity of persons shown;
- context of communication;
- whether the material establishes a continuing adulterous state rather than ordinary association.
This is exactly why Himanshu Chordia distinguishes evidence which proves the allegation ex facie from evidence requiring formal scrutiny.
Now the Second Ground: What Does “Desertion” Mean for Maintenance?
In ordinary conversation, a husband may say:
“She left me, so she deserted me.”
But the statutory maintenance question is more precise.
Section 144(4) asks whether the wife:
WITHOUT SUFFICIENT REASON REFUSES TO LIVE WITH HER HUSBAND.
Therefore living separately by itself is not enough.
The Court must examine:
- Is the wife actually refusing to live with the husband?
- If yes, why?
- Is that reason legally and factually sufficient?
Rina Kumari: Even a Restitution Decree Does Not Automatically Defeat Maintenance
Rina Kumari @ Rina Devi @ Reena v. Dinesh Kumar Mahto, 2025 INSC 55, is now the leading Supreme Court authority on this issue.
The husband had obtained a decree for restitution of conjugal rights.
The wife did not return to the matrimonial home.
The husband argued:
“A Civil Court has already directed her to resume cohabitation. She still refuses. Therefore Section 125(4) automatically bars maintenance.”
The Supreme Court rejected that mechanical formula.
The maintenance Court must independently examine whether the wife still had sufficient and valid reasons for living separately.
What Can Be a Sufficient Reason to Live Separately?
There is no exhaustive list.
Depending upon credible evidence, sufficient reason may include:
- physical cruelty;
- serious mental cruelty;
- dowry demands;
- being expelled from the matrimonial home;
- violence or credible threat of violence;
- serious neglect;
- unsafe matrimonial residence;
- husband's extramarital relationship;
- husband's second marriage;
- persistent abusive conduct;
- other circumstances making cohabitation unreasonable or unsafe.
The statute itself specifically recognises that where the husband:
- has married another woman; or
- keeps a mistress,
the wife has just ground to refuse to live with him.
Technical Divorce “Desertion” and Maintenance Refusal Are Not Identical
This distinction prevents substantial drafting errors.
A matrimonial divorce ground under Section 13(1)(ib) of the Hindu Marriage Act requires proof of desertion as understood in matrimonial jurisprudence.
A Section 144 BNSS maintenance objection asks whether the wife is refusing to live with the husband without sufficient reason.
The proceedings may overlap factually.
But the legal questions are not automatically identical.
Therefore:
“Family Court granted divorce on desertion”
should not automatically be converted into:
“Maintenance stands cancelled without further analysis.”
What If the Wife Simply Says “I Don't Want to Live With Him”?
The Court is entitled to examine why.
A bare refusal unsupported by circumstances can expose the wife to the statutory bar.
But the husband must first establish the factual foundation of the objection, and the wife may explain her reasons.
The Family Court/Magistrate may evaluate:
- matrimonial complaints;
- medical records;
- police complaints;
- messages;
- legal notices;
- prior mediation;
- witnesses;
- husband's conduct;
- wife's attempts to return;
- offers of separate residence;
- previous Court findings.
A Restitution Decree Is Relevant Evidence — Not an Automatic Maintenance Switch
After Rina Kumari, a husband can still rely upon a restitution decree.
It may be relevant to:
- the history of separation;
- findings made in matrimonial litigation;
- whether an offer of cohabitation was genuine;
- the wife's stated reasons for non-return.
But the maintenance Court must examine the current and complete circumstances rather than treating the decree as conclusive by itself.
What If Husband Offers to Maintain the Wife Only If She Returns?
Section 144 itself addresses this.
Where the husband offers to maintain his wife on the condition that she live with him and she refuses, the Magistrate must consider her grounds of refusal.
If there is just ground for refusal, maintenance may still be ordered.
The Court therefore examines whether the offer is:
- genuine;
- safe;
- practical;
- consistent with previous conduct;
- or merely a litigation strategy to defeat maintenance.
Can Maintenance Already Granted Be Cancelled Later?
Yes, where the statutory conditions are proved.
Section 144(5) provides for cancellation where, after a maintenance order, it is proved that the wife:
- is living in adultery;
- without sufficient reason refuses to live with the husband; or
- is living separately by mutual consent.
The husband therefore requires more than a subsequent accusation.
He must file the appropriate application and establish the disqualification by evidence.
Can a Husband Rely on a Divorce Judgment Finding Adultery?
A final matrimonial judgment containing an adjudicated finding may be highly relevant.
But the precise effect depends upon:
- what the Court actually decided;
- whether the judgment is final;
- whether appeal is pending;
- whether the maintenance claimant remains a legally recognised “wife” under the particular provision;
- whether the finding concerns a single past incident or continuous conduct;
- the maintenance statute involved.
Do not use a divorce decree mechanically without reading its operative findings.
Divorced Wife: The Position Changes
A particularly important point arises once the marriage has legally ended.
The former Section 125 definition of “wife” included a divorced woman who had not remarried.
Supreme Court authorities including Vanamala, Rohtash Singh, Swapan Kumar Banerjee and the recent discussion in Himanshu Chordia explain that the Section 125(4) refusal-to-cohabit bar does not operate against a divorced woman in precisely the same way as it does during subsistence of marriage.
That makes sense:
after divorce, there is ordinarily no subsisting matrimonial home to which the former wife can be required to return.
The post-divorce maintenance position must therefore be analysed separately.
Does Wife's Adultery Automatically Stop the Child's Maintenance?
No.
The child's maintenance entitlement is independent.
Even if the Court ultimately finds that the wife herself is disqualified from receiving maintenance under Section 144(4), the Court must separately examine maintenance payable to:
- minor children;
- eligible major children falling within the statutory conditions;
- other persons independently entitled under the provision.
A dispute between husband and wife should not mechanically be converted into financial punishment of the child.
Different Maintenance Laws: Do Not Mix the Statutory Tests
| Law | Adultery/Conduct Position |
|---|---|
| Section 144 BNSS | Express bar if wife is living in adultery or refuses to live with husband without sufficient reason. |
| Former Section 125 CrPC | Same material disqualification language; governs older/transitional proceedings as applicable. |
| Section 24 HMA | No identical “living in adultery” statutory bar; focuses primarily on insufficient independent income and litigation support. |
| Section 25 HMA | Permanent alimony; Court can consider income, property, conduct and other circumstances. |
| Section 18 HAMA | Separate statutory scheme; Section 18(3) disentitles a Hindu wife to separate residence and maintenance if she is unchaste. |
| Domestic Violence Act | Operates under its own statutory framework; Section 144 disqualifications should not automatically be imported verbatim. |
Why Identifying the Correct Maintenance Provision Matters
A husband may simultaneously face:
- Section 144 BNSS maintenance;
- Section 24 HMA interim maintenance;
- Section 25 HMA permanent alimony;
- Domestic Violence Act monetary relief;
- HAMA civil maintenance;
- child maintenance.
A successful defence under one statute does not automatically terminate every other proceeding.
Each order must be challenged or modified under the correct statutory framework.
Evidence Checklist for a Husband Raising “Living in Adultery”
1. Exact statutory proceeding: Section 144 BNSS / old Section 125 CrPC / HMA / HAMA / DV Act 2. Exact adultery pleading: _____________________________________ 3. Alleged person's identity: _____________________________________ 4. Relevant period: _____________________________________ 5. Relevant places: _____________________________________ 6. Evidence of continued/repeated association: _____________________________________ 7. Cohabitation evidence: _____________________________________ 8. Hotel/travel evidence: _____________________________________ 9. Electronic records: _____________________________________ 10. Independent witnesses: _____________________________________ 11. Admissions: _____________________________________ 12. Authentication/certification status: _____________________________________ 13. Whether evidence proves only one incident: YES / NO 14. Whether continued adulterous conduct is proved: YES / NO 15. Section 144(4) application filed: YES / NO 16. Is evidence ex facie clear or does it require trial? _____________________________________