Supreme Court: While deciding a case revolving around bar on grant of interim maintenance to wife in case her adultery is proved by the husband through evidence ex facie in an application filed under Section 125(4), Criminal Procedure Code, 1973 (CrPC), the Division Bench of Sanjay Karol* and Vipul M. Pancholi, JJ., noted that in this case the husband mainly presented photos to prove his wife’s infidelity and that the manner of the photographs did lead the Court to believe that the same may have been procured through private investigators/detectives.
Terming the method of procuring evidence via private investigators as “an area sans regulation”, the Court raised several concerns vis-à-vis breach of privacy, proper authorisation, procedural aspects and most importantly absence of a regulatory legal framework. With these concerns in mind, the Court thus directed that a copy of this judgment be sent to the Ministry of Law and Justice and the Chairman, Law Commission of India to take a view, as may be appropriate in the matter.
The Court further urged that legislature would need to undertake its own examination of all relevant issues and frame rules/regulations in accordance with the prevalent norms and conditions but can also refer to other jurisdictions where laws of similar nature exist, such as the State of Queensland in Australia, the Province of Ontario in Canada, the Netherlands, and Singapore.
Background
The couple got married in July 2014, however due to subsequent straining of relationship between the two, the wife left her matrimonial home along with the child born from the wedlock and her valuables. In November 2020 the wife filed application under Section 125 CrPC, which became the main petition and an application for interim maintenance, before the Special Additional Chief Judicial Magistrate, PCPNDT Cases (trial court), Udaipur. In the maintenance proceedings the husband also filed applications under Section 125(4) CrPC contending that on account of adulterous relationships, his wife is not entitled to any interim maintenance, given the express bar contained in the provision.
The trial court dismissed the husband’s application Section 125(4) CrPC along with an application under Section 91 CrPC stating that allegations regarding the wife’s adultery were mainly based on photographs and CD whose authenticity could not be confirmed at this stage of the proceedings. The trial court further stated that the husband’s application can only be determined after the exhibition of evidence in the main petition filed by the wife.
Subsequently, the husband filed a quashment petition before the Rajasthan High Court vis-à-vis the aforesaid dismissal orders and the order granting interim maintenance to the tune of ₹25,000 each to the wife and their son. Vide the impugned judgment, the High Court dismissed the husband’s petition.
Also read: Husband Must Prove Wife’s Adultery “Ex-Facie” to Deny Interim Maintenance: Supreme Court Clarifies Scope of S. 125(4) CrPC
Evolving Medium of Evidence Collection via Private Investigators: Concerns and Observations
Perusing the facts and after deciding the core issue qua grant of interim maintenance, the Court made additional observations over obtaining services of a private investigator being an area without appropriate regulatory framework.
The Court pointed out that in the present case, the husband presented approximately 92 videos along with 237 photographs before the trial court. The Bench deliberated that, “Who took these pictures? Did they have any authorisation to do so? What is the procedure for storing these pictures once taken? Whether these pictures sought to be adduced as evidence are in fact genuine pictures or are doctored using technological advancements; do they present an accurate picture or have they been morphed to suit the narrative sought to be built by the parties? What are the implications for the right of privacy of individuals, protection of their personal data, etc.? Obviously, these are concerns that need to be addressed.”
The Court highlighted that if collection of evidence in the aforesaid method is a reality, there also has to be some limitation to what these individuals can do in pursuit of their profession, some protections for them against allegations such as voyeurism under Section 354-C, Penal Code, 1860 (IPC) and regulation of the data/photographs procured by the investigator. There has to be a mechanism in place to deal with the evolving methods of evidence collection.
The Court identified several key areas which need to be looked into qua private investigators such as, verification of the evidence adduced within the meaning of Section 65-B, Evidence Act, 1872 or its equivalent in the Sakshya Adhiniyam, 2023, requirement of checks and measures drawn from the areas of the law, privacy experts, etc. that can deal with issues arising out of such endeavours, law enforcement, a grievance redressal forum for any individual who may be aggrieved by the actions of the private investigator having overstepped professional bounds and violated the rights of an individual.
The Court noted that in 2007 a Bill was introduced in the Rajya Sabha titled The Private Detective Agencies (Regulation) Bill, 2007, which contained 36 Sections and provided for the constitution of a Central Board and State Boards, a list of requirements to be fulfilled for a licence, cancellation, suspension of such licences, maintenance of records, express bar on investigations falling squarely within the domain of statutory/regulatory authorities, etc. “(…) we believe that regulation and accountability are equally important in the sphere of private investigation.”
Relying on Navinchandra N. Majithia v. State of Meghalaya, (2000) 8 SCC 323, the Court noted that the Code does not recognise private investigating agencies, and that evidence gathered through them cannot be presented by a Public Prosecutor at trial, though the defence may rely on it. Referring to R.M. Malkani v. State of Maharashtra, (1973) 1 SCC 471, the Court applied the three-fold test for admissibility of recorded evidence — relevance, identification of the source, and verified accuracy. It further held that, when dealing with evidence in the nature of photographs and videos, examination at the anvil of Section 65-B, Evidence Act, 1872, is necessary, referring to Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, which held that certification under Section 65-B(4) is a mandatory precondition for the admissibility of electronic evidence. Thus, underscoring the need to develop a mechanism to deal with aspects and situation flagged above, the Court directed that a copy of this judgment be sent to the authorities concerned over necessity of regulating evidence procurement via private investigators.
[Himanshu Chordia v. State of Rajasthan, 2026 SCC OnLine SC 1461, decided on 31-7-2026]
*Judgment by Justice Sanjay Karol
Advocates who appeared in this case:
For Petitioner(s): Mr. Prabhjit Jauhar, Adv. Ms. Tulika Bhatnagar, Adv. Mr. S. S. Jauhar, AOR
For Respondent(s): Mr. Shiv Mangal Sharma, A.A.G. Mr. Saurabh Rajpal, Adv. Ms. Shalini Singh, Adv. Ms. Nidhi Jaswal, AOR Ms. Preeti Singh, AOR Mr. Sunklan Porwal, Adv. Ms. Anuradha Anand, Adv. Ms. Sakshi Trivedi, Adv. Ms. Anoushka Bajpai, Adv. Ms. Pooja, Adv
Buy Code of Criminal Procedure, 1973 HERE
