Code of Criminal Procedure, 1973: s.438 – Grant of anticipatory bail – Whether provisions of s.7(c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019 would bar the grant of anticipatory bail under s.438 to the mother-in-law of the muslim woman upon whom triple talaq was pronounced by her husband – Held: The provisions of s.7(c) of the Act, 2019 apply to the Muslim husband – The offence which is created by s.3 of the Act, 2019 is on the pronouncement of a talaq by a Muslim husband upon his wife – s.4 of the Act, 2019 makes such act of the Muslim husband punishable with imprisonment – The mother-in-law of the aggrieved woman cannot be accused of the offence of pronouncement of triple talaq under the Act as the offence can only be committed by a Muslim man – Thus, in this situation, mother-in-law cannot be denied grant of anticipatory bail – Muslim Women (Protection of Rights on Marriage) Act, 2019 – s.7(c).
Code of Criminal Procedure, 1973: s.438 – FIR complaining of offence under provisions of s.498A IPC against the mother-inlaw – Grant of anticipatory bail – Held: In view of vague and general nature of allegations made in the FIR, bereft of details, appellantmother-in-law should not be denied the benefit of grant of anticipatory bail – Penal Code, 1860 – s.498A.
Muslim Women (Protection of Rights on Marriage) Act, 2019: s.7(c) – Whether s.7(c) of the Act, 2019 bars the power of the Court to grant anticipatory bail under s.438 CrPC – Held: A plain construction of s.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 s.7(c) of the Act – Only after giving the married Muslim woman a hearing, can the competent court grant bail to the accused – This interpretation is fortified by the fact that the legislature has not expressly barred the application of s.438, CrPC – Code of Criminal Procedure, 1973 – s.438.
Muslim Women (Protection of Rights on Marriage) Act, 2019: s.7 – Interpretation of – Held: Under clause (a) of s.7, 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 terms of 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 on bail” – But 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 talaq has 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 – Parliament has not overridden the provisions of s.438, CrPC – There is no specific provision in s.7(c), or elsewhere in the Act, making s.438 inapplicable to an offence punishable under the Act.
Allowing the appeal, the Court
HELD: 1. 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 and to ‘liberate’ Muslim women from the customary practice of talaq-e-biddat (divorce by triple talaq) by Muslim men. [Para 8][627-D-E]
*Shayara Bano v. Union of India (2017) 9 SCC
1:[2017] 9 SCR 797 – relied on.
2. The provisions of Section 7(c) 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 triple talaq under the Act as the offence can only be committed by a Muslim man. 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 is pronounced, is satisfied that there are reasonable grounds for granting bail. [Paras 8, 9][628-C-F]
3. Section 7 begins with a non-obstante clause, which operates “notwithstanding anything contained” in the CrPC. However, it is equally necessary to emphasize that the nonobstante clause 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 on bail”. 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 talaq has 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. 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. Thus, 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. [Paras 10, 18][628-F-H; 629-A-D; 634-A-B]
Hema Mishra v. State of U.P. (2014) 4 SCC 453: [2014]
1 SCR 465; Balchand Jain v. State of Madhya Pradesh (1976) 4 SCC 572: [1977] 2 SCR 52; Prathvi Raj
Chauhan v. Union of India and Others (2020) 4 SCC
727 – relied on
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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