Patna High Court – Orders
Ali Imam vs The State Of Bihar on 15 April, 2026
Author: Purnendu Singh
Bench: Purnendu Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.6141 of 2026
Arising Out of PS. Case No.-1806 Year-2023 Thana- SIWAN COMPLAINT CASE District-
Siwan
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Ali Imam S/o Wazir Miyan Resident of Village- Jigna Jagarnath, P.S.-
Mirganj, Distt.- Gopalganj
... ... Petitioner/s
Versus
1. The State of Bihar
2. Ruksan Khatoon D/o Ali Ahamd Resident of Village- Barai Tola, Bindusar,
P.S.- Siwan muffasil, Distt.- Siwan
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Ajay Kumar Pandey, Advocate
For the Opposite Party/s : Mr.Sanjay Kumar Tiwary, APP
For O.P. No.2 : Mr. Arghesh Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL ORDER
3 15-04-2026
Heard Mr. Ajay Kumar Pandey, learned counsel
appearing on behalf of the petitioner; Mr. Sanjay Kumar
Tiwary, learned APP for the State and Mr. Arghesh Kumar,
learned counsel for the O.P. No.2.
2. The petitioner seeks pre-arrest bail in connection
with Complaint Case No. 1806/2023 registered for the
offence(s) punishable under Sections
498(A)/406/307/504/506/323/341/147/149/34 of the Indian
Penal Code.
3. The allegation is of subjecting the complainant –
opposite party no.2/complainant to various sorts of torture due
to non-fulfillment of the demand of the dowry and ultimately
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she was driven out of her matrimonial house.
4. At the outset, learned counsels appearing on behalf
of the respective parties submitted that though the mediation
between the parties has failed, still a chance be given to them to
again settle their strain relationship amicably, considering the
interest of the only child.
5. Learned APP appearing on behalf of the State
submitted that a chance be given to the parties for amicable
settlement outside the court.
6. The parties have agreed to appear before the
learned District Court at 10:30 A.M. on or before 04.05.2026 for
resolving the dispute by way of mediation.
7. Heard the parties.
8. This Court finds that 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, as has been held by the
Apex Court in the case of Rajendra Bhagat v. State of
Jharkhand, reported in (2022) 18 SCC 465 in paragraph no.9
which is as under:-
“9. Taking note of the object of
Section 498-AIPC, the expected approach of
the High Court in the event of bona fide
settlement of disputes had been duly
exposited by this Court in B.S. Joshi v. State
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of Haryana [B.S. Joshi v. State of Haryana,
(2003) 4 SCC 675 : 2003 SCC (Cri) 848] ,
wherein this Court has underscored the duty
of the Court to encourage the genuine
settlement of matrimonial disputes and said
as under : (SCC pp. 682-83, paras 12-16)
“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 [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.
14. There is no doubt that the object of introducing
Chapter XX-A containing Section 498-A in the
Penal Code, 1860 was to prevent torture to a
woman by her husband or by relatives of her
husband. Section 498-A was added with a view to
punishing a husband and his relatives who harass or
torture the wife to coerce her or her relatives to
satisfy unlawful demands of dowry. The
hypertechnical view would be counterproductive
and would act against interests of women and
against the object for which this provision was
added. There is every likelihood that non-exercise of
inherent power to quash the proceedings to meet the
ends of justice would prevent women from settling
earlier. That is not the object of Chapter XX-A of the
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Penal Code, 1860.
15. In view of the above discussion, we hold that the
High Court in exercise of its inherent powers can
quash criminal proceedings or FIR or complaint
and Section 320 of the Code does not limit or affect
the powers under Section 482 of the Code.
16. For the foregoing reasons, we set aside the impugned
judgment and allow the appeal and quash the FIR
abovementioned.””
9. The parties have willingly desired to appear before
the learned District Court on or before 04.05.2026, so that the
matter can be referred to the District Mediation Centre.
10. Learned District Court is directed to take
necessary steps to refer the matter for mediation under the
provision of Mediation Act, 2023 before the learned Mediator of
the District Mediation Center by fixing a date for appearance of
the parties to give effect to “Mediation for the Nation 2.0”.
11. Learned Mediator of the District Mediation Center
concerned, upon appearance of the parties, 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 three months, till then, no coercive action
shall be taken against the petitioner in connection with the
aforesaid case.
12. 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 as referred hereinabove, the petitioner is
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required to be released on pre-arrest bail on such terms and
conditions as the learned District Court deems it fit and proper.
13. In case of failure on the part of the petitioner to
appear on or before 04.05.2026 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.
14. In case, it is deliberate on the part of the O.P. 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.
15. 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
conditions as the learned District Court deems it fit and proper.
16. If both the parties arrive at amicable settlement,
then they must withdraw the criminal cases, if any, which they
have lodged against each other.
17. The learned District Court must not abdicate
its responsibility to act as parens patriae in safeguarding the
paramount interests of the child, and should determine and
fix an appropriate amount to be paid by the petitioner for
the child’s welfare.
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18. In this regard the Apex Court dealing with such
situation on the touchstone of principle of parens patriae in the
case of Howarth v. Northcott, 152 Conn 460 has observed that
the welfare of the child is of paramount consideration. 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
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
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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
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
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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
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.”
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21. With aforesaid direction and observation, the
present application stands disposed of.
22. Let a copy of this order be communicated to the
Member Secretary, Bihar State Legal Services Authority and the
Patna High Court Mediation Centre for the purpose of record.
(Purnendu Singh, J)
Sanjay/-
U T