The time has again come to reiterate the famous quote of Justice Felix Frankfurter who through McNabb v. United States stated that "The history of liberty has largely been the history of the observance of procedural safeguards" Infact the recent Bombay HC order rejecting the anticipatory bail in Ebrahim Mohd. Iqbal Lakdawala v. State of Maharastra as per the provisions of Sec 7 (c) of the Muslim Women (Protection of Rights on Marriage) Act 2019 reminds how deliberately the legislature and now the judiciary with all due respect have disturbed the procedural safeguards guaranteed under constitutional and statutory framework regarding bail. The bare reading of the said provision which reads thus "no person accused of an offence punishable under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person" makes it very clear that legislature intentionally departed from the bail jurisprudence, i.e. "Jail is an exception and bail is the rule". Classic judgment of Moti Ram v. State of Madhya Pradesh , on this point vividly says Social Justice is the signature tune of our Constitution and the littleman in peril of losing his liberty is the consumer of social justice." In this backdrop this paper will focus on the following aspects:
1. Looking into the considerations enshrined in the statutory provisions for rejection of bail.
2. Bail in offences related to marriage.
3. Violation of constitutional safeguards guaranteed under Art 14, Art 19, Art 21 by enforcing differential treatment to Muslim Husbands through the ultravires provision of the Act.
Under Sec 437 Cr.PC bail in non-bailable offences can be given except to such person if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life and if person has committed a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non- bailable and cognizable offence. Even for these circumstances court may grant bail if the accused is sick or infirm or if proved some special reasons. So on a bare reading of this provision, the intent of the legislature is clear that, unless the Court considers it necessary to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or otherwise in the interests of justice, no person shall be denied bail. Thereby what it reflects is that personal liberty is paramount saving to the fact that society at large is not at danger.
Now here comes the need to closely peruse Sec 7(c) of the Muslim Women (Protection of Rights on Marriage) Act 2019 which blatantly left no scope of above considerations enshrined in Cr.PC and violates the notion of bail jurisprudence. In the instant context the offence, i.e. pronouncement of triple talaq is complete and no further investigation in this regard will be needed and there is no issue arising upon commitment of similar offence or tampering of evidence. Similarly as deviated from the Cr.PC and other penal provisions, the law prescribes to hear the aggrieved wife instead of the Public Prosecutor in the bail matter. This deviation disturbs the very foundation of criminal justice system, where the wife will vehemently oppose the bail as she is driven by vengeance and thereby accused's right to oppose is unfortunately taken away.
Now the next issue that needs to be looked upon is the bail in offences relating to marriage. As per the scheme of IPC, only graver offences such as dowry death (Sec 304 B), cruelty by husband and relatives (Sec 498A) and cohabitation caused by man deceitfully inducing a belief of lawful marriage, with imprisonment for 10 years (Sec 493) are non-bailable, the rest all the offences are bailable. Now coming to the present offence of pronouncement of triple talaq, which itself is in the nature of a civil wrong has been taken away with the right to bail, making the mockery of the bail jurisprudence again by the legislature. This is a serious concern where the law is not giving a time and space to the spouses to tune in for a reconciliation, which is the bedrock of Islamic law on family negotiations as well as in the general principles of family law irrespective of religion.
The last most important aspect that needs the attention is how the procedure established by the impugned law will not pass the test of reasonableness, fairness and just mandated by the famous judgment of Maneka Gandhi v. Union of India under Art 21 of the Constitution. This law is in a way imposing preventive detention on the Muslim husbands by rejecting bail without any considerable grounds to hold their personal liberty and as already said there is no argument on preventing this crime which is already complete. Interestingly the end result, i.e. divorce is not what is penalized but the mode of pronouncing the same and thereby the conventional requirement of mensrea gets faded here as he is not given a due process to establish his guilt. This procedure is therefore ultravires to the constitutional safeguard under Art 21. At the same time by rejecting bail, ones right to movement guaranteed under Art 19 (d) is also violated and most importantly the reasonableness in fixing such penalty for a matrimonial offence of civil nature is unexplained squarely proving that this differential treatment to Muslim husband's violates the fundamental right of equality under Art 14. As stated in the Moti Ram case, if the husband is deprived of his liberty it leads to grave consequences, namely: (1) though presumed innocent he is subjected to the psychological and physical deprivations of jail life; (2) he loses his job, if he has one, and is deprived of an opportunity to work to support himself and his family with the result that burden of his detention falls heavily on the innocent members of the family, (3) he is prevented from contribution to the preparation of his defence; and (4) the public exchequer has to bear the cost of maintaining him in the jail etc.
So now as we conclude, the question that remains is, has this law effectually ameliorated the agony of Muslim women as per its objective and not with surprise the answer will remain unanswered as long as Islamic reforms are merely politicized in this country. The question will keep revolving, on the fact that how long the destitution driven Muslim women will knock the doors of justice, where neither the community nor the State has strong will to make sure her upliftment happens. With blind practices and ignorance this vagrancy will remain and now a shattered familial relationship can also add to the wound of her.
Views are personal.
(Adv Neema Noor Mohamed, Assistant Public Prosecutor, Govt of NCT of Delhi and Adv. John S Ralph, Advocate, High Court of Kerala)
1. 318 U.S. 332 (1943)
2. Anticipatory Bail Application(ST) No. 2224 of 2020, decided on 21-10-20
3. 1978 AIR 1594
4. 1978 AIR 597