Grounds for Anticipatory Bail & Criminal Defenses for Men in Domestic Violence Cases
Section 3 of the Protection of Women from Domestic Violence Act, 2005 defines that Domestic violence includes acts which harm or endangers the health, safety, life, limb, or wellbeing (mental or physical) of the victim, or tends to do so, and includes causing physical, sexual, verbal, emotional, and economic abuse, perpetrated by any person who is or was in a domestic relationship with the victim. However, the provisions relating to domestic violence are widely misused by the women as a weapon for feud against their spouses and innocent family members.
Best Five Grounds for Anticipatory Bail for the Alleged Accused in Domestic Violence Cases
The person in apprehension of arrest can seek for anticipatory bail under Section 438 of the Code of Criminal Procedure by applying before the High Court or the Court of Sessions upon giving a conditional bond that the person shall make himself available for interrogation by a police officer as and when required. That, the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer. That, the person shall not leave India without the previous permission of the Court; and upon such other condition as may be imposed under Section 437(3), as if the bail were granted under that section.
- Health and Age of the Accused: While considering domestic violence cases the commonly used grounds for seeking anticipatory bail is age and health conditions of the accused especially in cases were the husband’s parents or relatives are also involved. If the court is of opinion that the health of the accused is bad and due to the apprehended arrest the health might further deteriorate then Court considers this ground and grants bail to the accused. In case of Harvinder Singh Arora V. State of N.C.T. of Delhi [99 (2002) DLT 613], petitioner had filed an application for grant of anticipatory bail before the High Court of Delhi and the age of the petitioner was above 55 years. Petitioner because of age was also suffering from certain diseases and was having ill health. Petitioner applied for the anticipatory bail citing this ground. The court considered the health and age of the petitioner and granted bail to the petitioner.
- Relevancy of Evidence Available: Anticipatory bail can be considered by the court on the ground that there is no material evidence available against the accused and the case is intentionally created to mentally harass the husband and his family members. In such case, if there are no evidences available direct or indirect, the accused can take that as a ground for seeking anticipatory bail contending that the allegations made against the accused are false and baseless grounds which do not to back up the accusations against the accused in the alleged offence. In Sushil Kumar Sharma v. Union of India [Writ Petition(civil)141 of 2005], the Supreme Court observed that complaints under Section 498A of the Indian Penal Code (IPC) were being filed on the basis of personal vendetta. It also observed in the judgment that the legislature should find out ways in which the makers of frivolous complaints can be appropriately dealt with. In Chandrabhan v. State [Bail Application No. 1627/2008], the Delhi High Court concluded that “there is no iota of doubt that most of the complaints are filed in the heat of the moment over trifling fights and ego clashes. It is also a matter of common knowledge that in their tussle and ongoing hostility, the hapless children are the worst victims”.
- Relationship between the Conflicting Parties: The relationship between the accused and the complainant is a prominent factor in deciding whether to grant anticipatory bail to the accused or not especially in matters relating to domestic violence since the relation between the husband, wife and other family members needs to be analysed in order to infer whether or not the allegation raised is genuine. The Hon’ble Supreme Court in HDFC Bank Ltd v. J.J. Mannan [AIR 2010 SC 618] has explained that the object of Section 438 Cr.P.C.is to mean that the person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant.
- Apprehension of Tampering with Evidence and Manipulation of Witnesses: One of the major reasons justified in keeping the accused in judicial custody is the reasonable apprehension of tampering with the evidence or possibility of threat to the witnesses before granting any type of bail. If in the eyes of the Court the accused might tamper with the evidence or manipulate the witnesses resulting in failure to meet the ends of justice the Court might refuse to grant the bail. However in case where the Court is of the opinion that the accused would not try to tamper with the evidence or become a threat to the witnesses, then the Court considers granting bail to the accused.
- Upon Returning of the Stridhan and Cooperating with the Police Investigation: In the case of Vijendra Sharma v. State [Bail Application Number 2012/2009], the High Court of Delhi had allowed anticipatory bail subject to the conditions that the petitioner husband will return all the gold/Silver jewellery of the complainant before the concerned SHO along with a sum of Rs.1 lakh which is to be deposited with registrar general of the court in the name of the complainant. The petitioner will join for the investigation and not intimidate the witnesses.
Additional Grounds for Anticipatory Bail for the Alleged Accused in Domestic Violence Cases
a) Gender of the Accused
b) Gravity of event happened
c) First time offender
d) Likelihood of the accused to move out of the country
e) Social Status with respect to the victim and witnesses
Best Five Criminal Defenses available to the Alleged Accused in Domestic Violence Cases
- A counter case by the husband against the false allegations of the wife can be filed by invoking penal provisions under the Indian Penal Code, 1860 such as Sec.120 B wherein a case can be filed alleging criminal conspiracy by the complainant, against the husband and his family.
- If the husband believes that a public servant or a police officer is helping his wife to submit a false complaint and framing false documents, he can file a case against such police persons under Sec.167 of the Act.
- If in case, the husband thinks that his wife or anyone is introducing false evidence against him in the Court of law or police headquarters, he can file a case asserting that the evidence which is being utilized to prosecute him is false as per Sec 191, of the Act.
- In case a false complaint has been filed against the husband and his parents with a deliberate intention to tarnish the reputation of the husband and his family then the husband can move to court by invoking Sec 500 of the Act and even claim monetary compensation for the act of defamation.
- If there is adequate evidence to hold that the wife threatens him to hurt himself or his family or property, then the husband can move to the court by invoking Sec 506 of Act which is the punishment for criminal intimidation. In case of false accusation by the wife, the husband can even file a complaint under Section 227 of the Code of Criminal Procedure (Cr. P.C.) of 1973 expressing that the 498-A case filled by his wife is bogus but in such a case the need for enough evidence is essential or on the off chance that the wife needs more proof to substantiate the charges and if the court is satisfied then there are chances that the judge will excuse the 498-A case as it is a framed one.
In the case of Ram Kumar Nanki V. State of Madhya Pradesh [SLP (Crl.)No. 3198/2020] the Supreme Court expressly held that vague claims against the accused by certain witnesses couldn’t be taken as adequate proof of dowry-related harassment.
Additional Criminal Defenses for Domestic Violence Cases:
The accused husband can use alternate methods to prove his innocence by recording all conversations be it voice chat, emails or letters that prove threat or any evidence required for defense. To provide evidences to show that the husband nor his family members have demanded for dowry or have accepted anything as such and that the complaint is solely made with an intention to defame and tarnish the reputation of the husband family and avoid compensation. The husband must be equipped with all evidences to show that the wife moved out of the matrimonial obligation without any legitimate explanation and the husband can file for a document for restitution of conjugal rights to strengthen his contentions.
Domestic violence cases are shooting up day by day but, the most dangerous scenario is that women are taking up these non-bailable provisions as means to satisfy their revenge or to permanently stain the reputation of the husband and his family. The court must also consider this aspect while trying the cases relating to domestic violence so as to efficiently meet the ends of justice to both the parties.
Authored By: Adv. Anant Sharma & Jyotsna Jose