SC sets aside order allowing pre-arrest bail on condition to maintain conjugal relations

New Delhi: The Supreme Court has set aside an order allowing pre-arrest bail to a man with a condition that he would maintain conjugal relations with his wife and maintain her with ''dignity and honour".

A bench of Justices Dipankar Datta and Augustine George Masih held a condition such as this one impugned ought not to have been imposed.

"Imposing a condition that the appellant would maintain the wife with dignity and honour is beset with risk in that it can generate further litigation," the bench pointed out.

The court allowed an appeal filed by Anil Kumar against the Jharkhand High Court's order of February 25, 2025, which has granted him pre-arrest bail in a dowry harassment case on condition that he resumes conjugal life with his wife, and maintains her with dignity and honour as his lawful wife.

"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,'' the bench said in its order on July 29, 2025.

The court felt, while considering the application for pre-arrest bail, 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 present one ought not to have been imposed in view of several decisions of this court," the bench said.

The court cited the decisions in Mahesh Chandra versus State of UP (2006) and Munish Bhasin versus State (NCT of Delhi) (2009) in this regard.

The wife's counsel told the court that the appellant together with the wife had jointly submitted before the High Court that he is willing to resume his conjugal life; hence, he cannot now turn around and take a different stand.

The court found the counsel is partly right in the sense that the appellant had indeed agreed to resume conjugal life.

"However, the wife insisted for imposition of a further condition to which we do not find the appellant to have agreed. The spouses seemingly, at one point of time, had drifted apart and resided separately for some time,'' the bench noted.

The court set aside the order and asked the High Court to consider the bail application afresh on its own merits, as early as possible.