SC Sets Aside Bail Condition Directing Husband To Resume Conjugal Life With His Wife

New Delhi: The Supreme Court has set aside an order passed by the Jharkhand High Court, which imposed a pre-arrest bail condition that the accused shall resume conjugal life with his wife and maintain her with dignity and honour as his lawful wife.

A bench comprising justices Dipankar Dutta and Augustine George Masih passed the order on July 29.

The high court on February 25, 2025, had granted the prayer of the appellant for pre-arrest bail on condition that he resumes conjugal life with his wife and maintains her with dignity and honour as his lawful wife.

The apex court noted that the appellant figures as an accused in a case registered under sections 498-A, 323, 313, 506, 307 and 34 of the IPC, as well as under sections 3 and 4 of the Dowry Prohibition Act, 1961. The apex court did not agree with the high court’s decision to impose this condition for the grant of pre-arrest bail.

The bench, in its order, noted, “while considering the application for pre-arrest bail of the appellant, the court ought to have assessed whether the discretionary relief sought by the appellant for pre-arrest bail deserved to be granted within the settled parameters; if yes, conditions which are traceable to Section 438(2), Code of Criminal Procedure, 1973 could be imposed, but a condition such as the one impugned before us ought not to have been imposed in view of several decisions of this court”.

The counsel, representing the wife, contended before the bench that the appellant, together with the respondent no.2 (wife), had jointly submitted before the high court that he is willing to resume his conjugal life. The counsel stressed that the appellant cannot now turn around and take a different stand.

The bench noted that counsel is partly right in the sense that the appellant had indeed agreed to resume conjugal life. “The spouses seemingly, at one point in time, had drifted apart and resided separately for some time. Imposing a condition that the appellant would maintain respondent no.2 with dignity and honour is beset with risk in that it can generate further litigation”, said the bench, in its order.

The apex court said an application for cancellation of bail on the ground that such condition has not been complied with, if filed later, is bound to meet opposition from the appellant and could place the high court in further difficulty. “The high court could find itself disabled to decide a disputed question of fact, in an application for pre-arrest bail. In such a state of affairs, we are of the considered opinion that the high court should have considered the prayer of the appellant for pre-arrest bail entirely on its own merit instead of imposing a condition which is not traceable to Section 438(2), Cr. PC”, said the apex court, while setting aside the high court order.

The apex court allowed the appeal filed by the husband and directed the high court to decide the matter afresh on its own merits, and extended the interim protection from arrest granted to the husband. In April this year, the apex court granted the interim protection to the appellant.

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