The Supreme Court in the case Abhishek Katyayan vs State of Bihar observed and has recently issued notice in a special leave petition that raises this question that can a condition be imposed by the Court for the payment of maintenance while granting anticipatory bail?
In the present case, a complaint was filed against the accused by the wife under Section 323, Section 379 and Section 498A of the Indian Penal Code, 1860 and the Section 3, Section 4 of the Dowry Prohibition Act, 1961. While apprehending the arrest, the accused approached the Patna High Court. An anticipatory bail has been granted and has directed that he should pay maintenance of Rs. 10,000.
The accused while challenging this condition had approached the Apex Court and has relied on the case Munish Bhasin Vs. State Govt. of NCT of Delhi, wherein contending that such a condition is not sustainable. It was observed in the said judgement that in a proceeding under section 438 of the Code, the Court would not be justified in awarding maintenance to the wife and child. The question for granting of maintenance should be left to be decided by the competent Court in an appropriate proceeding where the parties can adduce evidence in support of their respective case and after which the 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.
Accordingly, the bench comprising of Justice Ajay Rastogi and Justice CT Ravikumar stayed the condition, while issuing notice.
