Breaking- Triple Talaq-No Complete Bar On Anticipatory Bail For Offence Under 2019 Act, Provided Court Hear Complainant Woman: Supreme Court

The Supreme Court has held that there is no bar on granting anticipatory bail for an offence committed under the Muslim Women (Protection of Rights on Marriage) Act 2019, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail.The bench headed by Justice D. Y. Chandrachud has held that it would be at the discretion of the court to grant ad-interim relief to the accused during the pendency of the anticipatory bail application, having issued notice to the married Muslim woman.The bench, also comprising Justices Indu Malhotra and Indira Banerjee, was hearing an appeal arising from a judgment of a Single Judge of the High Court of Kerala, rejecting the application for anticipatory bail under Section 438 of the Code of Criminal Procedure 1973. Originally, the Special Leave Petition under Article 136 of the Constitution was filed by two petitioners. The first petitioner is the spouse of the second respondent, who has filed the complaint leading to the registration of the first information report. The second petitioner is the mother of the first petitioner. By an order of this Court dated 3 December 2020, the Special Leave Petition was not entertained at the behest of the first petitioner and he was granted time to surrender before the competent court of jurisdiction and apply for regular bail.The marriage between the second respondent and the appellant's son was solemnized on 14 May 2016. They have a child who was born in May 2017. On 27 August 2020, the second respondent lodged a first information report, complaining of offences under the provisions of Section 498-A read with Section 34 of the Indian Penal Code and the Muslim Women (Protection of Rights on Marriage) Act 2019. On 27 August 2020, the first information report was lodged. Insofar as is material to the controversy in the present appeal, the FIR contains an allegation that on 5 December 2019,at about 2.30pm, the appellant's son pronounced talaq three times at their house. Following this, it has been stated, the appellant's son entered into a second marriage."The issue which survives in the present appeal is whether the High Court was justified in declining the prayer for anticipatory bail moved by the appellant (the second petitioner in the Special Leave Petition as it was originally filed)", noted the bench.The bench reflected that under Section 3 of the 2019 Act, a pronouncement of talaq by a Muslim husband upon his wife has been rendered void and illegal. Under Section 4, a Muslim husband who pronounces talaqupon his wife, as referred to in Section 3, is punishable with imprisonment for a term, which may extend to three years. The benhc appreciated that the prohibition in Sections 3 and 4 is evidently one which operates in relation to a Muslim husband alone. This is supported by the Statement of Objects and Reasons accompanying the Muslim Women (Protection of Rights on Marriage) Bill 2019, when it was introduced in the Parliament. The reasons for the introduction of the bill specifically stated that the bill was to give effect to the ruling of this court in Shayara Bano v. Union of India[(2017) 9 SCC 1], and to 'liberate'Muslim women from the customary practice of talaq-e-biddat (divorce by triple talaq)by Muslim men."It is in this context that the provisions of Section 7 (Offences to be cognizable, compoundable, etc) would have to be interpreted", said the bench.The bench opined that the provisions of Section 7(c), which stipulates that 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, apply to the Muslim husband. "The offence which is created by Section 3 is on the pronouncement of a talaq by a Muslim husband upon his wife. Section 3 renders the pronouncement of talaq void and illegal. Section 4 makes the Act of the Muslim husband punishable with imprisonment. Thus, on a preliminary analysis, it is clear that the appellant as the mother-in-law of the second respondent cannot be accused of the offence of pronouncement of tripletalaqunder the Act as the offence can only be committed by a Muslim man", said the bench.Having said that, the bench dealt with the contention that Section 7(c) of the Act bars the power of the court to grant anticipatory bail under Section 438 of the CrPC.It noted that section 7 begins with a non-obstanteclause, which operates "notwithstanding anything contained"in the CrPC. However, it was found equally necessary to emphasise that the non-obstanteclause operates only in the area covered by clauses (a), (b) and (c). Under clause (a), the offence is cognizable if the information is given by the married Muslim woman or a person related to her by blood or marriage to the officer in charge of a police...

Breaking- Triple Talaq-No Complete Bar On Anticipatory Bail For Offence Under 2019 Act, Provided Court Hear Complainant Woman: Supreme Court

Mehal Jain

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