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Patna High Court

Prem Gupta @ Prem Kumar @ BabluversusThe State of Bihar

Decided
Disposal
DISPOSED

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

  • BNS — s. 115(2), 126(2), 3(5), 352, 85
  • D.P. Act — s. 3, 4

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/-

U         T


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