Safiya Malik

The High Court of Gujarat Single Bench of Justice Divyesh A. Joshi has rejected a husband’s request for anticipatory bail sought as pre-arrest protection in connection with an FIR lodged on his wife’s complaint. She alleged sexual assault, coerced “unnatural” intercourse, and physical and mental cruelty during the marriage. The Bench observed that although marriage has long been viewed as an automatic grant of sexual consent and intimacy between married couples is normal, any sexual act within marriage must be consensual and mutually respectful, recognising the bodily autonomy of the spouse. On the material placed at this stage, the Court held that custodial interrogation was necessary and that granting anticipatory bail could impede the investigation and therefore dismissed the plea.

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The applicant contended that the allegations were false, vague, and motivated, asserting that the dispute was purely matrimonial in nature, that there was a delay in lodging the FIR, and that no custodial interrogation was required. He relied on documentary material, photographs, and personal circumstances to seek pre-arrest protection.

The complainant and the State opposed the application, alleging sustained cruelty, physical violence, sexual abuse, threats, and the need for custodial interrogation to recover electronic devices, personal belongings, and other evidence. The Court considered the rival submissions, the nature of allegations, and the materials collected during investigation, including statements and electronic records, before deciding the application.

The Court observed that “the dispute in the present case appears to be matrimonial in nature,” but simultaneously noted that “very serious allegations of mental and physical assault have been made by the complainant against the applicant and his parents.” It recorded that the FIR contained “very grave and serious allegations of giving burn on the private part of the complainant with the lit cigarettes” and allegations of non-consensual sexual acts.

The Court further observed that certain WhatsApp chats placed on record disclosed “very abusive language” used by the applicant, which “clearly shows the mentality of the applicant and his aggressive nature.” It stated that, on a prima facie assessment, “the present case is not a simple case of matrimonial dispute,” and appeared to be “something beyond the general and usual allegations stated to be being made in every matrimonial disputes by the wife.”

On the aspect of consent within marriage, the Court stated that “intimacy is normal between every married couples, however, the same has to be a consensual and mutually respectful act,” and that non-consensual acts “not only causes immense physical pain but it also gives mental, and emotional trauma to the unconsented spouse.” The Court also recorded that the material indicated the applicant had remarried and that “the first wife of the applicant had also made the similar kind of allegations against the applicant.”

Considering the seriousness of the allegations, the Court stated that “it goes without saying that the alleged offence of physical and sexual assault to the complainant by the applicant is quite grave in nature.” It further observed that where a “prima facie case of custodial interrogation of the accused is made out,” the discretionary power to grant anticipatory bail should not be exercised routinely. The Court recorded that “the presence of the applicant, in the peculiar facts and circumstances of the present case, seems to be needed to uncover the real truth.”

The Court recorded that “from the allegations levelled in the FIR and the materials placed on record, it appears that the very serious allegations have been made against the applicant,” and on that basis held that “at this stage, in my view, custodial interrogation of the applicant is very much necessary.”

The Court further stated that “grant of anticipatory bail in favour of the applicant is likely to hamper the investigation and investigating agency is likely to lose an opportunity to exploit all the fact situation, probabilities or opportunities which the Agency may get during the custodial interrogation of a person.”

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Accordingly, the Court ordered that “the present application, being devoid of any merit, is hereby rejected,” and further clarified that “the impugned order passed by the trial court, rejecting anticipatory bail application of the applicant is just and proper and does not require any interference.”

“The observations made by this Court herein above at this stage while deciding the anticipatory bail application, would not come in the way of the applicant at the time as and when if ultimately the trial court is proceeded with the trial, and at the stage of consideration of regular bail application, if preferred by the applicant.”

Advocates Representing the Parties

For the Applicant: Mr. Yatin Oza, Senior Advocate, with Mr. Aditya A. Gupta, Advocate.
For the Respondent–State: Mr. Soham Joshi, Additional Public Prosecutor.
For the Original Complainant: Mr. Jal Unwalla, Senior Advocate, with Mr. Bomi H. Sethna, Advocate.

Case Title: XXX v. State of Gujarat
Neutral Citation: 2026: GUJHC:16
Case Number: Criminal Misc. Application (For Anticipatory Bail) No. 26922 of 2025
Bench: Justice Divyesh A. Joshi