Patna High Court
Prem Gupta @ Prem Kumar @ BabluversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- PURNENDU SINGH
Holding
The court held that pre‑arrest bail must be granted conditionally, with the dispute referred to mediation, as the matter is a private matrimonial conflict and its continuation would be an abuse of process.
Summary
Prem Gupta, married to Nilam Devi, faced an FIR alleging offences under several sections of the BNS, the D.P. Act and the Dyne Act, stemming from a matrimonial dispute over money and alleged torture. He applied for pre‑arrest bail, claiming innocence, while the complainant sought to prevent his release, citing neglect of their 14‑year‑old daughter. The court observed that matrimonial conflicts are private matters and continuing criminal proceedings would amount to an abuse of process. Citing Supreme Court precedents encouraging mediation and emphasizing child welfare, the court directed the matter to the District Mediation Centre and granted interim protection to the petitioner. The bail was conditioned on the parties appearing before the district court for mediation, with the bail to continue if reconciliation fails, and the application was disposed.
Issues considered
- Whether pre‑arrest bail should be granted in a criminal case arising from a matrimonial dispute
- Whether continuation of the criminal proceeding constitutes an abuse of process
- How the welfare of the minor child influences the decision on bail
- Whether referral to mediation is appropriate in such disputes
Legislation cited
Subjects
- pre‑arrest bail
- matrimonial dispute
- mediation
- child welfare
- abuse of process
- family law
- criminal procedure
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.45103 of 2025
Arising Out of PS. Case No.-81 Year-2024 Thana- MAHILA PS District- Aurangabad
======================================================
Prem Gupta @ Prem Kumar @ Bablu aged about 41 years (Male) son of
Bajrangi Prasad, resident of Village+P.O.+P.S.- Nawadih Bazar District-
Palamu (Jharkhand)
... ... Petitioner/s
Versus
1. The State of Bihar
2. Nilam Devi D/o- Late Uday prasad , R/o-Vill-Kateya ,P.O.-Jai Govind Nagar
Makhra, P.S.-Jamhor , Dist-Aurangabad.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Kamlendra Prasad Singh, Advocate
For the O.P. No. 2 : Mr. Rajnish Ranjan, Advocate
For the State : Dr. Ajeet Kumar, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL ORDER
4 21-01-2026 Heard Mr. Kamlendra Prasad Singh, learned
counsel appearing on behalf of the petitioner; Mr. Rajnish
Ranjan, learned counsel for the complainant and Dr. Ajeet
Kumar, learned APP appearing on behalf of the State.
2. The petitioner seeks pre-arrest bail in connection
with Mahila P.S. Case No. 81 of 2024 registered for the
offence(s) punishable under Sections 126(2), 115(2), 85, 352,
3(5) of the BNS; Sections 3/4 of the D.P. Act and Section 3 of
the Dyne Act.
3. As per the allegation made in the FIR, the marriage
of the O.P. No. 2 was solemnized with the petitioner on
09.12.2009 as per Hindu Rites and Custom and they have been
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blessed with a girl child out of the said wedlock, who is aged
about 14 years. After few years of marriage, petitioner had
started demanding rupees five lakh from the parent of the O.P.
No. 2 for starting a business and due to non-fulfillment of the
same, he along with his family members, used to say her Dyne
and had subjected the O.P. no. 2 to various sorts of torture and
ousted her from her matrimonial house along with her 14 years
old girl child.
4. Learned counsel appearing on behalf of the
petitioner submitted that petitioner is innocent and has falsely
been implicated in the present case. He further submitted that
petitioner always tries to lead a peaceful married life with the
informant but she never co-operates with him on the instigation
of her family members. Learned counsel further submitted that
marriage is a sacred ceremony but little matrimonial skirmish
suddenly erupts into hatred and the parties ponder to reconcile
their dispute outside the court.
5. Learned counsel appearing on behalf of the
informant opposing the prayer for grant of pre-arrest bail
submitted that an opportunity may be given to the parties to
resolve their dispute amicably outside the Court. He further
submitted that the petitioner and O.P. No.2 have 14 years old
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girl child and petitioner is not taking care of her only girl child,
who requires proper nourishment and good education having
attained the age of 15 years and demanded Rs. 20,000/- per
month from the petitioner for proper nourishment and good
education of the child.
6. Learned APP appearing on behalf of the State
submitted that a chance be given to the parties for amicable
settlement outside the court.
7. However, at this stage, learned counsel for the
respective parties, on instruction, submitted that the parties have
agreed to appear before the learned District Court at 10:30 A.M.
on 19.02.2026 for resolving the dispute by way of mediation.
8. Heard the parties.
9. The matrimonial dispute is not an offense against
the society rather a matrimonial dispute is a private conflict
between spouses and does not inherently constitute an offence
against society. However, a false case can have a disastrous
consequence in absence of any criminal content. The personal
dispute cannot call for a criminal offence. In such situation,
continuation of the proceeding would amount to abuse of
process of law leading to vexatious proceeding against the
petitioner.
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10. In this regard, the Apex Court in the case of B.S.
Joshi v. State of Haryana, reported in, (2003) 4 SCC 675, in
paragraph nos. 12 and 13 has held as under:-
“12. The special features in such matrimonial matters
are evident. It becomes the duty of the court to encourage
genuine settlements of matrimonial disputes.
13. The observations made by this Court, though in a
slightly different context, in G.V. Rao v. L.H.V. Prasad
[(2000) 3 SCC 693 : 2000 SCC (Cri) 733] are very apt
for determining the approach required to be kept in view
in a matrimonial dispute by the courts. It was said that
there has been an outburst of matrimonial disputes in
recent times. Marriage is a sacred ceremony, the main
purpose of which is to enable the young couple to settle
down in life and live peacefully. But little matrimonial
skirmishes suddenly erupt which often assume serious
proportions resulting in commission of heinous crimes in
which elders of the family are also involved with the
result that those who could have counselled and brought
about rapprochement are rendered helpless on their
being arrayed as accused in the criminal case. There are
many other reasons which need not be mentioned here
for not encouraging matrimonial litigation so that the
parties may ponder over their defaults and terminate
their disputes amicably by mutual agreement instead of
fighting it out in a court of law where it takes years and
years to conclude and in that process the parties lose
their “young” days in chasing their “cases” in different
courts.”
11. The parties have willingly desired to appear before
the learned District Court on 19.02.2026, so that the matter can
be referred to the District Mediation Centre so as to give effect
to Mediation 2.0.
12. Learned District Court is directed to take
necessary steps to refer the matter before the learned Mediator
of the District Mediation Center by fixing a date for appearance
of the parties.
13. Learned Mediator of the District Mediation Center
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concerned upon appearance of the parties on the fixed date shall
make his/her best efforts to settle the dispute amicably and
thereafter submit his/her report before the concerned learned
District Court, well within a period of four months, till then, no
coercive action shall be taken against the petitioner in
connection with the aforesaid case.
14. In case, the parties resolve their dispute amicably
or arrive at a mutual settlement, in light of the law laid down by
the Apex Court, the petitioner is required to be released on pre-
arrest bail on such terms and conditions as the learned District
Court deems it fit and proper.
15. In case of failure on the part of the petitioner to
appear on 19.02.2026 before the learned District Court or any
date fixed by the learned Mediator, the interim protection
granted to the petitioner shall automatically lose its force.
16. In case, it is deliberate on the part of the opposite
party no.2 to reconcile, then in that case, the interim protection
granted to the petitioner shall continue and the trial shall
proceed in accordance with law.
17. In case, the parties fail to reconcile, then in that
case, parties may avail appropriate remedy. Then also, petitioner
is directed to be released on pre-arrest bail on such terms and
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conditions as the learned District Court deems it fit and proper.
18. As a result of the strained matrimonial relationship
between husband and wife, the child should not suffer. The
Apex Court found it in the case of Howarth v. Northcott, 152
Conn 460 that the welfare of the child is of paramount
consideration of the Court. I find it apt to reproduce the
observations made by the Apex Court in the aforesaid case,
which is as under:
"In habeas corpus proceedings to determine
child custody, the jurisdiction exercise by the Court rests in
such cases on its inherent equitable powers and exerts
theforce of the State, as parens patrie, for the protection of
its infant ward, and the very nature and scope of the inquiry
and the result sought to be accomplished call for the
exercise of the jurisdiction of a court of equity.” (emphasis
supplied)
It was further observed;
“The employment of the forms of habeas corpus
in a child custody case is not for the purpose of testing the
legality of a confinement or restraint as contemplated by
the ancient common law writ, or by statute, but the primary
purpose is to furnish a means by which the court, in the
exercise of its judicial discretion, may determine what is
best for the welfare of the child, and the decision is reached
by a consideration of the equities involved in the welfare of
the child, against which the legal rights of no one, including
the parents, are allowed to militate. It was also indicated
that ordinarily, the basis for issuance of a writ of habeas
corpus is an illegal detention; but in the case of such a writ
sued out for the detention of a child, the law is concerned
not so much with the illegality of the detention as with the
welfare of the child.”
19. In this regard, it would be also gainful to
reproduce the observation made by the Apex Court in Mausami
Moita Ganguli V. Jayant Ganguli reported in (2008)7 SCC 673
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in paragraph nos. 19 to 21 and 23 to 26:
“19. The principle of law in relation to the
custody of a minor child are well settled. It is trite that
while determining the question as to which parent the care
and control of a child should be committed, the first and the
paramount consideration is the welfare and interest of the
child and not the rights of the parents under a statute.
Indubitably, the provisions of the law pertaining to the
custody of a child contained in either the Guardians and
Wards Act, 1890(Section 17) or the Hindu Minority and
Guardianship Act, 1956 (Section 13) also hold out the
welfare of the child as a predominant consideration. In fact,
no statute, on the subject, can ignore, eschew or obliterate
the vital factor of the welfare of the minor.”
“20. The question of welfare of the minor child
has again to be considered in the background of the
relevant facts and circumstances. Each case has to be
decided on its own facts and other decided cases can hardly
serve as binding precedents in so far as the factual aspects
of the case are concerned. It is, no doubt, true that father is
presumed by the statues to be better suited to look after the
welfare of the child, being normally the working member
and head of the family, yet in each case the court has to see
primarily to the welfare of the child in determining the
question of his or her custody. Better financial resources of
either of the parents or their love for the child may be one
relevant considerations but cannot be the sole determining
factor for the custody of the child. It is here that a heavy
duty is cast on the court to exercise its judicial discretion
judiciously in the background of all the relevant facts and
circumstance, bearing in mind the welfare of the child as
the paramount consideration.”
21. In Rosy Jacob v. Jacob A. Chakramakkal
reported in (1973) 1 SCC 840, a three-Judge Bench of the
Apex Court in a rather curt language had observed that the
controlling factor governing the custody of the child would
be its welfare and not the rights of the parent:
“15. ... The children are not mere chattels: nor
are they mere playthings for their parents. Absolute right of
the parents over the destinies and the lives of their children
has, in the modern changed social conditions, yielded to the
considerations of their welfare as human being so that they
may grow up in a normal balanced manner to be useful
members of the society and the guardian court in case of a
dispute between the mother and the father, is expected to
strike a just and proper balance between the requirements
of welfare of the minor children and the rights of their
respective parents over them.”
“23. Having bestowed our anxious
consideration to the material on record and the observation
made by the courts below, we are of the view that in the
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present case there is no ground to upset the judgment and
order of the High Court. There is nothing on record to
suggest that the welfare of the child is in any way in peril in
the hands of the father. In our opinion, the stability and
security of the child is also essential ingredient for a full
development of child’s talent and personality. As noted
above, the appellant is a teacher, now employed in a school
at Panipat, where she had shifted from Chandigarh some
time back. Earlier, she was teaching in some school at
Calcutta.
Admittedly, she is living alone. Except for a very
short duration when he was with the appellant, Master
Satyajeet has been living and studying in Allahabad in a
good school and is stated to have his small group of friends
there. At Panipat, it would be an entirely new environment
for him as compared to Allahabad.”
“25. It is also significant to note that during the
course of hearing on one of the dates, when we had not yet
interviewed Satyajeet, we had suggested that it would be
better if the child could stay with his mother for some more
time. However, upon hearing us, he started crying and
whining and, showed reluctance to go with the mother.”
Watching his reaction, we dropped the proposal.
“26. Under these circumstances and bearing in
mind the paramount consideration of the welfare of the
child, we are convinced that the child’s interest and welfare
will be best served if he continues to be in the custody of the
father, In our opinion, for the present, it is not desirable to
disturb the custody of master Satyajeet and, therefore, the
order of the High Court giving his exclusive custody to the
father with visitation rights to the mother deserves to be
maintained. We feel that the visitation rights to the
appellant by the High Court, as noted above, also do not
require any modification.”
We, therefore, affirm the order and the afore-
extracted direction given by the High Court. It will,
however, be open to the parties to move this Court for
modification of this order or for seeking any direction
regarding the custody and well- being of the child, if there
is any change in the circumstances.”
20. In the case of Gaurav Nagpal v. Sumedha
Nagpal reported in (2009) 1 SCC 42, the Apex Court in
paragraph 50 has held as follows:-
"50. When the Court is confronted with
conflicting demands made by the parents, each time it has
to justify the demands. The Court has not only to look at the
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issue on legalistic basis, in such matters human angles are
relevant for deciding those issues. The Court then does not
give emphasis on what the parties say, it has to exercise a
jurisdiction which is aimed at the welfare of the minor."
21. Learned District Court, in such circumstances,
where the interest of the child becomes paramount, is directed to
decide the amount, which is required for proper growth and
good education of the girl child, who has attained the age of 14
years. It is well settled principle of law that the rule of the Court
becomes parens patriae. He must exercise his jurisdiction to
consider for the welfare of the child which is paramount till the
parties resolve their dispute in accordance with the law.
22. With aforesaid direction and observation, the
present application stands disposed of.
(Purnendu Singh, J)
Niraj/-
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