A 3-judge bench of the Supreme Court consisting of Justices Dr Dhananjaya Y. Chandrachud, Indu Malhotra and Indira Banerjee has, in the judgment of the case – Rahna Jalal v. State of Kerala and Another, delivered on December 17, 2020, declared that “on a true and harmonious construction of section 438 of Cr.P.C. and section 7(c) of Muslim Women (Protection of Rights on Marriage) Act, 2019,” 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 grant of 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.
The criminal appeal, in this case, arose from a judgment of Single Judge Bench of the Kerala HC, rejecting the application for anticipatory bail under section 438 of the Cr.P.C., 1973. Originally, the Special Leave Petition 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 the Supreme Court on December 3, 2020, the SLP was not entertained at the behest of the first petitioner and he was granted time to surrender before the competent court and apply for regular bail.
According to the SC, the issue, which survived in this appeal was whether the HC was justified in declining the prayer for anticipatory bail made by the appellant (the second petitioner in the SLP as it was originally filed). The marriage between the second respondent and the appellant’s son was solemnized on May 14, 2016.They have a child, who was born in May 2017.On August 27 2020,the second respondent lodged a FIR complaining of offences under the provisions of section 498-A read with section 34 of the IPC and the Act prohibiting triple talaq.
The FIR contained an allegation that on December5, 2019, at about2.30 pm, the appellant’s son pronounced talaq three times at their house. Following this, it has been stated that the appellant’s son entered into a second marriage. Since no settlement occurred, the Kerala HC was moved for anticipatory bail. On November 2, 2020, the Single Judge of the HC, while declining pre-arrest bail, observed: “If the prosecution case is correct, the 1st petitioner is now enjoying with his second wife, while matrimonial relationship with the de facto complainant is in existence.” The order of the HC contained no reason why the appellant was being denied anticipatory bail.
Section 3 of the Act, declares triple talaq void and illegal and under section 4 a Muslim husband, who pronounces talaq upon his wife thrice , as referred to in section 3, is punishable with imprisonment for a term, which may extend to 3 years. The prohibition in sections 3 and 4 is evidently one which operates in relation to a Muslim husband alone. This is supported by objects and reasons accompanying the Bill of the said Act, when that was introduced in the Parliament. The reasons for the introduction of the Bill specifically stated that the Bill would give effect to the ruling of the Supreme Court in the case- 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 have been interpreted.
The provisions of section 7(c) apply to the Muslim husband. The offence which is created by 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 mother-in-law of the second respondent cannot be accused of the offence of pronouncement of triple talaq under the Act as the offence can only be committed a Muslim man.
After this the SC has 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. Under clause (c) of section 7 Parliament has provided that no person who is accused of an offence punishable under the 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 the talaq has been pronounced, is satisfied that there are reasonable grounds for granting bail.
The statutory text indicates that section7(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. Hence, though section7 begins with a non-obstante clause which operates in relation to the CrPC, a plain construction of section7(c) would indicate that it does not impose 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.
On December 3 2020, the SC granted interim protection from arrest to the appellant. The primary allegation which was pressed in aid to deny anticipatory bail was the pronouncement of triple talaq by the spouse of the second respondent. In its judgment, the SC has observed that an offence under the Act is by the Muslim man, who has pronounced talaq on his spouse and not the appellant, who is the mother-in-law of the complainant- aggrieved married Muslim woman- the second respondent in the case.
The SC felt that having regard to the vague and general nature of allegations in support of offence under section 498-A of the IPC, in the FIR, bereft of details, the appellant should not be denied the benefit of grant of anticipatory bail. Particularly in the light of the order passed by the JMFC, North Patur on October23, 2020, did not find any substance in the allegations against the appellant mother-in-law of the complainant married Muslim woman.
In view of this, the SC allowed the appeal with the direction that the appellant shall be released on bail by the competent court, subject to she filing a Personal Release Bond of Rs 25,000/- with the condition of co-operating with the Investigating Officer in the investigation.
