The Supreme Court has held that while granting anticipatory bail,courts cannot impose irrelevant conditions on the husband such as directing him to pay maintenance, along with arrears, to the wife.
A bench comprising Justices R V Raveedran and J M Panchal allowed the appeal of Munish Bhasin and his parents against the order of the Delhi High Court directing him to pay arrears of Rs three lakh from August 2005 and also pay maintenance to the tune of Rs 12,500 per month in future.
Justice Panchal, writing an 11-page judgment for the bench ruled, `It is well settled that while exercising discretion to release an accused under Section 438 of the Cr.P.C, neither the High Court, nor the Sessions 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 483 of the Code.
`However, the accused cannot be subjected to any irrelevant conditions 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 the grant of anticipatory bail under Section 438 of the Code.’ The apex court went on to add, `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 three lakh 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 a proceeding, 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 apex court also took note of the fact that the wife has already filed a petition for maintenance under Section 125, Cr.P.C., which is pending before the trial court.
The High Court vide order dated August 7, 2007, after noting that net salary of the husband was Rs 33,000 per month, directed him to pay the maintenance, while granting anticipatory bail to the accused and his parents.
The amount already paid by the husband following the High Court orders need not be refunded by the wife and will be adjusted, subject to the final order in the maintenance case.
The judgment was pronounced on February 20, copies of which were made available to the media.