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

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 station of the commission of the offence. Under clause (b), the offence is compoundable at the instance of the married Muslim woman upon whom the talaq is pronounced. However,in clause (b),the permission of the Magistrate is required. The Magistrate can specify the terms and conditions for compounding.

"Facially, clause (c) begins with the words "no person accused of an offence punishable under this Act shall be released onbail". But what follows is equally important, because it conditions what precedes it. Two conditions follow. One of them is in the realm of procedure while the second is substantive. The former requires a hearing to be given to the married Muslim woman upon whom talaqhas been pronounced. The latter requires the court to "be satisfied that there are reasonable grounds for granting bail to such person". This substantive condition is only a recognition of something which is implicit in the judicial power to grant bail. No court will grant bail unless there are reasonable grounds to grant bail. All judicial discretion has to be exercised on reasonable grounds. Hence, the substantive condition in clause (c) does not deprive the court of its power to grant bail", concluded the bench.

The judgment declares that the Parliament has not overridden the provisions of Section 438 of the CrPC. There is no specific provision in Section 7(c),or elsewhere in the Act, making Section 438 inapplicable to an offence punishable under the Act. The power of the court to grant bail is a recognition of the presumption of innocence (where a trial and conviction is yet to take place) and of the value of personal liberty in all cases. Liberty can, of course, be regulated by a law which is substantively and procedurally fair, just and reasonable under Article 21.

The bench expressed the view that the statutory text indicates that Section 7(c) does not impose an absolute bar to the grant of bail. On the contrary, the Magistrate may grant bail, if satisfied that "there are reasonable grounds for granting bail to such person" and upon complying with the requirement of hearing the married Muslim woman upon whom talaq is pronounced. The judgment asserts that hence, though Section 7 begins with a non obstante clause which operates in relation to the CrPC, a plain construction of Section 7(c) would indicate that it does not impose a fetter on the power of the Magistrate to grant bail, save and except, for the stipulation that before doing so, the married Muslim woman, upon whom talaq is pronounced, must be heard and there should be a satisfaction of the Magistrate of the existence of reasonable grounds for granting bail to the person. This implies that even while entertaining an application for grant of anticipatory bail for an offence under the Act, the competent court must hear the married Muslim woman who has made the complaint,as prescribed under Section 7(c)of the Act. Only after giving the married Muslim woman a hearing, can the competent court grant bail to the accused.

The bench appreciated that certain other statutes expressly exclude the provisions of Section 438 of the CrPC.The provisions of Section 7(c) of the Act must be distinguished from provisions which are contained in such statutes. For instance, the Maharashtra Control of Organised Crime Act, 1999 explicitly excludes the application of Section 438 of CrPC. The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989also contains similar provisions, which exclude the application of Section 438 of CrPC in its sections 18 and 18-A.

"For the above reasons, we have come to the conclusion that 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", ruled the bench

Meenakshi Arora , Sr. Adv and Harris Beeran , Adv for Petitioners .

V. Chitambaresh, Sr. Adv and Harshad Hameed , Adv for the respondents and G. Prakash Adv for the State .

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