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You are here: Home » SC Judgments » Maintenance to wife cannot be a condition of anticipatory bail: SC judgment

Maintenance to wife cannot be a condition of anticipatory bail: SC judgment

It has been heard from men facing cases arising out of matrimonial issues especially in Bihar that it is common to suggest to husband and impose upon him to pay monthly maintenance to wife as a condition to grant him (and family if applicable) anticipatory bail under IPC sections 498A, 406 etc.  This Supreme Court judgment of 2009 clearly says that such a condition to pay maintenance is not as per statutory law as laid out in Section 238 of CrPC or even in line with reasonable conditions of bail.

 

Important excerpt from this judgment is given below:

There is no manner of doubt that the conditions to be imposed under section 438 of the Code cannot be harsh, onerous or excessive so as to frustrate the very object of grant of anticipatory bail under section 438 of the Code.  In the instant case, the question before the Court was whether having regard to the averments made by Ms.  Renuka in her complaint, the appellant and his parents were entitled to bail under section 438 of the Code.  When the High Court had found that a case for grant of bail under section 438 was made out, it was not open to the Court to direct the appellant to pay Rs. 3,00,000/- for past maintenance and a sum of Rs.12,500/- per month as future maintenance to his wife and child. In a proceeding under section 438 of the Code, the Court would not be justified in awarding maintenance to the wife and child. The case of the appellant is that his wife Renuka is employed and receiving a handsome salary and therefore is not entitled to maintenance. Normally, the question of grant of maintenance should be left to be decided by the competent Court in an appropriate proceedings where the parties can adduce evidence in support of their respective case, after which liability of husband to pay maintenance could be determined and appropriate order would be passed directing the husband to pay amount of maintenance to his wife. The record of the instant case indicates that the wife of the appellant has already approached appropriate Court for grant of maintenance and therefore the High Court should have refrained from granting maintenance to the wife and child of the appellant while exercising powers under section 438 of the Code. The condition imposed by the High court directing the appellant to pay a sum of Rs.12,500/- per month as maintenance to his wife and child is onerous, unwarranted and is liable to be set aside.

So this judgment can be used by all who are approaching courts for anticipatory bail and being pressurized to pay monthly maintenance to wife to get bail.  Note that such practices become common and acceptable only because many advocates and even some in judiciary are fine with being ignorant, and blindly propagating some old traditions which have been set by equally ignorant people in the past.  To change the system, it is important that those who become aware of the law should push to educate others, otherwise one cannot get relief as per law but only based on whims and fancies and plain luck based on which state one happens to be in, or which court/which judge one happens to appear in front of.

 

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Full judgment text below:

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Reportable

 

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 344 OF 2009
(Arising out of S.L.P. (Criminal) No. 637 of 2008)

 

Munish Bhasin & Ors. … Appellants

 

Versus

 

State (Govt. of N.C.T. of Delhi) & Anr. … Respondents

 

J U D G M E N T

J.M. PANCHAL, J.

Leave granted. The complainant (wife of first

appellant) to whom notice was ordered on 25.01.2008 is

impleaded as second respondent.

 

2. Heard Counsel.

 

3. The appellant (accused no. 1) assails the condition

imposed by the High Court requiring him to pay a sum of

Rs.12,500/- as maintenance to his wife and child while

granting anticipatory bail to him and his parents with

reference to the complaint filed by his wife for alleged

commission of offences punishable under Sections 498A

and 406 read with Section 34 of the Indian Penal Code.

 

4. The marriage of the appellant was solemnized with

Ms. Renuka on December 05, 2004. She has filed a

complaint in November 2006, against the appellant and

his parents for alleged commission of offences

punishable under Sections 498A and 406 read with

Section 34 of the Penal Code on the grounds that after

marriage she was subjected to mental and physical

cruelty for bringing less dowry and that her stri-dhan

entrusted to them has been dishonestly misappropriated

by them.

 

5. Apprehending arrest, the appellant and his parents

moved High Court of Delhi for anticipatory bail. The

application came up for consideration before a Learned

Single Judge of the High Court on 22.02.2007. The

Learned Additional Public Prosecutor accepted notice

and submitted that the matter was essentially a

matrimonial dispute and therefore the parties should be

referred to the Mediation and Conciliation Cell of the

Delhi High Court. The Learned Judge agreed with the

suggestion made by the Additional Public Prosecutor and

directed the parties to appear before the Mediation and

Conciliation Cell of the Delhi High Court on March 02,

2007. The case was ordered to be listed on 10.05.2007.

The Learned Judge further directed that in the event of

arrest of the appellant and his parents, before the next

date of hearing, they shall be released on bail on their

furnishing personal bond in the sum of Rs.25,000/- each

with one surety of like amount to the satisfaction of the

Investigating Officer/ Arresting Officer concerned,

subject however, to the condition that the appellant and

his parents shall surrender their passports to the

Investigating Officer and shall file affidavits in the Court

that they would not leave the country without prior

permission of the Court.

 

6. From the records, it appears that the conciliation

proceedings failed and therefore the bail application was

taken up for hearing on merits. On representation made

by the wife of the appellant, the counsel of the appellant

was directed to produce appellant’s salary slip.

Accordingly, the salary slip of the appellant was

produced before the Court which indicated that the

appellant was drawing gross salary of Rs.41,598/- and

after deductions of advance tax etc., his net salary was

Rs.33,000/-. The Learned Single Judge of the High

Court took the notice of the fact that the appellant had

the duty to maintain his wife and the child and therefore

as a condition for grant of anticipatory bail, directed the

appellant, by the order dated 07.08.2007 to pay a sum of

Rs.12,500/- per month by way of maintenance to his

wife and child. The Learned Single Judge also directed

to pay arrears at the rate of Rs. 12,500/- per month from

August 2005, that is Rs. 3,00,000/- within six months.

The imposition of these conditions for grant of

anticipatory bail is the subject matter of challenge in the

instant appeal.

 

7. From the perusal of the provisions of sub-section (2)

of section 438, it is evident that when the High Court or

the Court of Session makes a direction under sub-

section (1) to release an accused alleged to have

committed non-bailable offence, the Court may include

such conditions in such direction in the light of the facts

of the particular case, as it may think fit, including (i) a

condition that a person shall make himself available for

interrogation by police officer as and when required, (ii) a

condition that the person shall not, directly or indirectly,

make any inducement, threat or promise to any person

acquainted with the facts of the case so as to dissuade

him from disclosing such facts to the Court or to any

police officer, (iii) a condition that the person shall not

leave India without the previous permission of the Court

and (iv) such other conditions as may be imposed under

sub-section (3) of section 437, as if the bail were granted

under that section. Sub-section (3) of Section 437, inter

alia, provides that when a person accused or suspected

of the commission of an offence punishable with

imprisonment which may extend to seven years or more

or of an offence under Chapter VI, Chapter XVI or

Chapter XVII of the Indian Penal Code or abetment of, or

conspiracy or attempt to commit, any such offence, is

released on bail under sub-section (1), the Court shall

impose the following conditions-

(a) that such person shall attend in accordance with

the conditions of the bond executed under this

Chapter,

(b) that such person shall not commit an offence

similar to the offence of which he is accused, or

suspected, of the commission of which he is

suspected, and

 

(c) that such person shall not directly or indirectly

make any inducement, threat or promise to any

person acquainted with the facts of the case so as

to dissuade him from disclosing such facts to the

Court or to any police officer or tamper with the

evidence.

The Court may also impose, in the interests of

justice, such other conditions as it considers necessary.

 

8. It is well settled that while exercising discretion to

release an accused under Section 438 of the Code

neither the High Court nor the Session Court would be

justified in imposing freakish conditions. There is no

manner of doubt that the Court having regard to the

facts and circumstances of the case can impose

necessary, just and efficacious conditions while enlarging

an accused on bail under Section 438 of the Code.

However, the accused cannot be subjected to any

irrelevant condition at all. The conditions which can be

imposed by the Court while granting anticipatory bail are

enumerated in sub-section (2) of Section 438 and sub-

section (3) of Section 437 of the Code. Normally,

conditions can be imposed (i) to secure the presence of

the accused before the investigating officer or before the

Court, (ii) to prevent him from fleeing the course of

justice, (iii) to prevent him from tampering with the

evidence or to prevent him from inducing or intimidating

the witnesses so as to dissuade them from disclosing the

facts before the police or Court or (iv) restricting the

movements of the accused in a particular area or locality

or to maintain law and order etc. To subject an accused

to any other condition would be beyond jurisdiction of

the power conferred on Court under section 438 of the

Code. While imposing conditions on an accused who

approaches the Court under section 438 of the Code, the

Court should be extremely chary in imposing conditions

and should not transgress its jurisdiction or power by

imposing the conditions which are not called for at all.

There is no manner of doubt that the conditions to be

imposed under section 438 of the Code cannot be harsh,

onerous or excessive so as to frustrate the very object of

grant of anticipatory bail under section 438 of the Code.

In the instant case, the question before the Court was

whether having regard to the averments made by Ms.

Renuka in her complaint, the appellant and his parents

were entitled to bail under section 438 of the Code.

When the High Court had found that a case for grant of

bail under section 438 was made out, it was not open to

the Court to direct the appellant to pay Rs. 3,00,000/-

for past maintenance and a sum of Rs.12,500/- per

month as future maintenance to his wife and child. In a

proceeding under section 438 of the Code, the Court

would not be justified in awarding maintenance to the

wife and child. The case of the appellant is that his wife

Renuka is employed and receiving a handsome salary

and therefore is not entitled to maintenance. Normally,

the question of grant of maintenance should be left to be

decided by the competent Court in an appropriate

proceedings where the parties can adduce evidence in

support of their respective case, after which liability of

husband to pay maintenance could be determined and

appropriate order would be passed directing the husband

to pay amount of maintenance to his wife. The record of

the instant case indicates that the wife of the appellant

has already approached appropriate Court for grant of

maintenance and therefore the High Court should have

refrained from granting maintenance to the wife and

child of the appellant while exercising powers under

section 438 of the Code. The condition imposed by the

High court directing the appellant to pay a sum of

Rs.12,500/- per month as maintenance to his wife and

child is onerous, unwarranted and is liable to be set

aside.

 

9. For the foregoing reasons, the appeal succeeds.

The direction contained in order dated August 07, 2007

rendered by Learned Single Judge of Delhi High Court in

Bail Application No. 423 of 2007 requiring the appellant

to pay a sum of Rs.12,500/- per month by way of

maintenance (both past and future) to his wife and child

is hereby deleted. Rest of the directions contained in the

said order are maintained. It is however clarified that

any amount received by the wife of the appellant

pursuant to the order of the High Court need not be

refunded by her to the appellant and will be adjusted

subject to the result of application for maintenance filed

by wife of the appellant under Section 125 of the Code

before the appropriate Court.

 

10. The Appeal is accordingly disposed of.

 

…………………………J.
[R.V. Raveendran]

 

…………………………J.
[J.M. Panchal]

 

New Delhi;
February 20, 2009.

Delhi HC refuses to increase maintenance amount merely because husband works in Dubai and earns in foreign currency »

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