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2020 (12) TMI 1379 - SC - Indian LawsRejection of application for anticipatory bail under Section 438 of the Code of Criminal Procedure 1973 - to liberate muslim women from practice of talaq-e-biddat - HELD THAT - Under Section 3, 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 talaq upon his wife, as referred to in Section 3, is punishable with imprisonment for a term, which may extend to three years. 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 VERSUS AAFREEN REHMAN, GULSHAN PARVEEN, ISHRAT JAHAN, ATIYA SABRI VERSUS UNION OF INDIA AND OTHERS IN RE MUSLIM WOMEN S QUEST FOR EQUALITY VERSUS JAMIAT ULMA-I-HIND 2017 (9) TMI 1302 - SUPREME COURT , and to liberate‟ Muslim women from the customary practice of talaq-e-biddat (divorce by triple talaq) by Muslim men. Even in the context of legislation, such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, where a bar is interposed by the provisions of Section 18 and Sub-section (2) of Section 18-A on the application of Section 438 of the CrPC, this Court has held that the bar will not apply where the complaint does not make out a prima facie case for the applicability of the provisions of the Act. A statutory exclusion of the right to access remedies for bail is construed strictly, for a purpose. Excluding access to bail as a remedy, impinges upon human liberty. Hence, the decision in PRATHVI RAJ CHAUHAN VERSUS UNION OF INDIA (UOI) AND ORS. 2020 (2) TMI 1705 - SUPREME COURT held that the exclusion will not be attracted where the complaint does not prima facie indicate a case attracting the applicability of the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. On a true and harmonious construction of Section 438 of CrPC and Section 7(c) of the Act, there is no bar on granting anticipatory bail for an offence committed under the Act, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail. 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 - primary allegation which is pressed in aid to deny anticipatory bail is the pronouncement of triple talaq by the spouse of the second respondent. In the preceding paragraphs we have observed that an offence under the Act is by the Muslim man who has pronounced talaq upon his spouse, and not the appellant, who is the mother-in-law of the second respondent. It is directed that in the event of the arrest of the appellant, she shall be released on bail by the competent court, subject to her filing a personal bond of Rs 25,000. The appellant shall cooperate in the course of the investigation by the Investigating Officer. Appeal allowed.
Issues Involved
1. Justification for the denial of anticipatory bail by the High Court. 2. Applicability of Section 438 of the CrPC in light of Section 7(c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019. 3. Legal interpretation of Sections 3, 4, and 7 of the Muslim Women (Protection of Rights on Marriage) Act, 2019. 4. Examination of the allegations under Section 498-A of the IPC. Detailed Analysis 1. Justification for the Denial of Anticipatory Bail by the High Court The primary issue in the appeal was whether the High Court was justified in declining the prayer for anticipatory bail moved by the appellant. The High Court had observed that the appellant’s son was enjoying with his second wife while the matrimonial relationship with the de facto complainant was in existence. However, the order of the High Court contained no reasons for denying anticipatory bail to the appellant. 2. Applicability of Section 438 of the CrPC in Light of Section 7(c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019 The appellant’s counsel argued that Section 7(c) of the Act does not expressly prohibit the exercise of the power of the court to grant anticipatory bail. The court noted that Section 7(c) requires the Magistrate to be satisfied that there are reasonable grounds for granting bail and to hear the married Muslim woman upon whom talaq is pronounced. The court emphasized that the non-obstante clause in Section 7 does not override Section 438 of the CrPC, as there is no explicit provision in the Act making Section 438 inapplicable. 3. Legal Interpretation of Sections 3, 4, and 7 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 Sections 3 and 4 of the Act render the pronouncement of talaq void and illegal and make it punishable with imprisonment. The court noted that these provisions apply specifically to Muslim husbands. Section 7(c) indicates that no person accused of an offence under the Act shall be released on bail unless the Magistrate is satisfied that there are reasonable grounds for granting bail and has heard the married Muslim woman. The court held that Section 7(c) does not impose an absolute bar on granting bail but requires procedural compliance. 4. Examination of the Allegations under Section 498-A of the IPC The court observed that the allegations under Section 498-A of the IPC were vague and general in nature, lacking specific details. The Judicial Magistrate First Class-I, North Parur, had previously found no substance in the allegations against the appellant under the Protection of Women from Domestic Violence Act, 2005. Given the nature of the allegations and the appellant’s relationship with the second respondent, the court concluded that the appellant should not be denied anticipatory bail. Conclusion The court concluded that there is no bar on granting anticipatory bail for an offence under the Act, provided the competent court hears the married Muslim woman who has made the complaint. The appellant, being the mother-in-law, cannot be accused of the offence of pronouncement of triple talaq. The court directed that in the event of the appellant's arrest, she shall be released on bail upon filing a personal bond of Rs 25,000 and cooperating with the investigation. The appeal was allowed, and pending applications were disposed of.
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