1. Introduction
Resolution of matrimonial disputes calls for extra care and empathy on part of authorities including courts in order to prevent any further escalation of acrimony between parties in dispute. At times, matrimonial disputes resolve when both parties are willing to give up their allegations to make a fresh start in life. Whereas sometimes the parties are unwilling to patch their differences, with one party ending up facing criminal charges, and may be with counter allegations on the other party.
Situation could be such that an application for bail may require adjudication and the Court would be required to deliberate on whether to grant or not to grant bail.
In case of criminal charges or in anticipation of arrest one can apply for seeking Anticipatory Bail from the appropriate court which in effect means that Bail would be granted in the event of arrest.
Anticipatory bail is pre-arrest bail.
2. Supreme Court Judgments: Anticipatory bail in matrimonial disputes
2.1 Courts not to impose unnecessary restrictions under Section 438
A Constitution Bench of the Hon’ble Supreme Court in Shri Gurbakash Singh Sibbia & Ors. v. State of Punjab (1980) 2 SCC 565 held: –
“26. We find a great deal of substance in Mr. Tarkunde’s submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248], that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein.” (emphasis supplied)
2.2 Conditions imposed should be Proportional to the Purpose for which imposed
In Parvez Noordin Lokhandwalla v. State of Maharashtra & Anr. 2020) 10 SCC 77 the Apex Court held: –
“…The human right to dignity and the protection of constitutional safeguards should not become illusory by the imposition of conditions which are disproportionate to the need to secure the presence of the accused, the proper course of investigation and eventually to ensure a fair trial. The conditions which are imposed by the court must bear a proportional relationship to the purpose of imposing the conditions. The nature of the risk which is posed by the grant of permission as sought in this case must be carefully evaluated in each case.”
2.3 Conditions for Bail shall not be Impossible and Impracticable
In Sudeep Chatterjee vs The State of Bihar & Anr. Crl. A. 3210/2024 of SLP (Crl.) 2011 of 2024, the Hon’ble Supreme Court observed:-
7. We do not think it necessary to burden this judgment by multiplying the authorities on this subject as the constant and consistent view of this Court on matters granting a prayer for bail under Section 438 of the Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’) is that after forming an opinion, taking note of all relevant aspects, that bail is grantable, conditions shall not be put to make it impossible and impracticable for the grantee to comply with. As held by this Court in Parvez Noordin’s case (supra), the ultimate purpose of putting conditions while granting pre-arrest bail is to secure the presence of the accused and thus, eventually to ensure a fair trial and also for the smooth flow of the investigating process.
8. In view of the unfortunate instances imposing very onerous conditions, especially in cases which are nothing but an off-shoot of matrimonial discordance, we would reiterate the view that courts have to be very cautious in imposing conditions while granting bail upon finding pre-arrest bail to be grantable. This is to be done warily, especially when the couple concerned who are litigating in divorce proceedings, jointly though lukewarmly, agreed to attempt to reconcile and re-unite. The impugned order itself would reveal that the parties who were about to part company, rethought and expressed their readiness to bury the hatchet and to reunite and the appellant has also agreed to withdraw the divorce case. One should not be oblivious of the fact that a boy or girl, will be bonded to kith and kins besides parents and siblings and such bonded relationships cannot be severed solely due to affine and affinity towards the affinal as also cognate relationships has to be taken forward with same cordialness. Relation through marriage sans support from both the families may not flourish but may perish. Viewed from any angle, putting conditions as has been done in this case, requiring a person to give an affidavit carrying a specific statement in the form of an undertaking that he would fulfil all physical as well as financial requirements of the other spouse so that she could lead a dignified life without interference of any of the family members of the appellant, can only be described as an absolutely improbable and impracticable condition. The second respondent may not misuse such a condition. However, giving such a carte blanche, is nothing but making one dominant over the other, which in no way act as a catalyst to create a comely situation in domesticity. On the contrary, such conditions will only be counterproductive. There can be no doubt that a re-union after a marital discord is possible only if the parties are put to a conducive situation to regain the mutual respect, mutual love and affection. No doubt putting a condition that one of the parties should undertake to fulfil all physical as well as financial requirements of the other party could not bring about such a situation. It may compel one among the couple to be susceptive and turn the other supercilious. When the couple who are trying to bridge their emotional differences putting one among them under such an onerous condition would deprive a dignified life not only to the grantee but to both. It is to be noted that with the said conditions the appellant was granted only a provisional bail. In short, we stress upon the need to put compliable conditions while granting bail, recognizing the human right to live with dignity and with a view to secure the presence of the accused as also unhindered course of investigation, ultimately to ensure a fair trial. In respect of matters relating to matrimonial cases, conditions shall be put in such a way to make the grantee of the bail as also the griever to regain the lost love and affection and to come back to peaceful domesticity. In this case, the parties, obviously, expressed their desire and willingness to live together and in that regard the appellant-husband, expressed his willingness to withdraw the divorce case.