Patna High Court: In the present petition, the petitioner-husband seeks pre-arrest bail in a criminal matter registered for offences punishable under Sections 323, 498-A and 406, 34 of the Penal Code, 1860 and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The Single Judge Bench of Purnendu Singh, J., while dismissing the pre-arrest bail application held that that the husband could not be allowed to play with the dignity of his wife at his own will.
Background
The marriage between the husband and Respondent 2-wife was solemnized according to Muslim rites and customs. The allegations on the husband were that he started demanding dowry and due to non-fulfilment of his demands, he had started torturing his wife and subjected her to various sorts of cruelty followed by assault. Thereafter, husband submitted that he had suspicion that his wife was pregnant prior to the marriage for which he had confirmed by getting her examined and further alleged that in an ultrasound report, a five-month-old foetus was found in his wife’ womb at the time of marriage and thus the husband found himself to be cheated by her.
The wife had filed a complaint before the CJM, Motihari, who issued summons and in response to this, the husband filed anticipatory bail in the Court of Sessions Judge, East Champaran, Motihari, Bihar (‘Sessions Judge’), which was dismissed on the ground that the husband was responsible for miserable life of his wife. The husband then contested Sessions Judge’s decision before this Court, which directed both the parties to file affidavit, as they had already agreed to live together and were also willing to reconcile their strained matrimonial relationship. Under these conditions, this Court granted relief to the husband. The husband then preferred to file a SLP in the Supreme Court, which held that since this Court had not examined the merits of the case and had passed a conditional impugned order, the matter had to be remanded to this Court for expeditious and a fresh consideration.
Observations
The Court observed that it was not disputed that the petitioner had contracted a second marriage without divorcing his first wife, whom he legally wedded. However, he had failed to establish his contention that the entry of the second wife to the existing matrimony was with the prior consent of the first wife. The Court opined that it was a matter of common knowledge that, women regardless of their religion and socio-economic conditions, detest their husbands contracting a second marriage, therefore, the proof of consent requires cogent evidence which was lacking in this case.
The Court opined that though the Shariat law permits Muslim to contract more than one marriage, but it must be borne in mind that merely because an act was lawful, it did not per se become justifiable in married life. Contracting a second marriage by a Muslim may be lawful, but it causes enormous cruelty to the first wife.
The Court also observed that the demeanour of the husband, was such, who in open court, in loud voice, accepted that he had not given ‘talak’ to his first wife, and he does not want to live with her and at the same time alleged that the first wife was pregnant at the time of marriage but no evidence in this regard has been brought on record. Whereas, on the other hand, the first wife was still ready to live along with the husband and stated that till date she has not given divorce to him.
The Court ruled that, the conduct of the husband could not be appreciated as he could not be allowed to play with the dignity and life of his wife at his own will and therefore the Court was not inclined to enlarge the husband on pre-arrest bail thus, bail application stands dismissed.
[Md. Irshad Kuraishi v. State of Bihar, 2024 SCC OnLine Pat 1077, decided on 03-05-2024]
Advocates who appeared in this case :
For the Petitioner/s: Advocate Brajesh Kumar Singh
For the Opposite Party/s- APP Ajit Kumar, Advocate Madhurendra Kumar
Buy Penal Code, 1860 HERE
