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.