Excerpt
A Full Bench headed by Justice D.Y Chandrachud held that under Section 438 of Cr.P.C and Section 7(c) of the Act, there is no bar on granting anticipatory bail for an offence committed under Muslim Women Act.
However, the 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, after issuing notice to the married Muslim woman.
A Full Bench headed by Justice D.Y Chandrachud held that under Section 438 of Cr.P.C and Section 7(c) of the Act, there was no bar on granting anticipatory bail for an offence committed under Muslim Women Act.
However, the 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, after issuing notice to the married Muslim woman.
Brief facts of the case
The marriage between the second Respondent and the Appellant’s son was solemnized in 2016. They had a child who was born in 2017. In 2020, the second Respondent lodged an FIR, under Section 498-A read with Section 34 of the Indian Penal Code and the Muslim Women (Protection of Rights on Marriage) Act 2019.
In the present appeal, the FIR contained an allegation that on 5 December 2019, at about 2.30 pm, the Appellant’s son pronounced talaq three times at their house. It stated that after the pronouncement of talaq, the Appellant’s son entered into a second marriage.
No settlement occurred between the parties. Further, the High Court declined to grant anticipatory bail. However, the High Court order contained no reason why the Appellant was denied the anticipatory bail.
Issue
Whether the High Court was justified in declining the anticipatory bail of the Appellant?
Appellant’s Arguments
Section 7(c) of the Muslim Women (Protection of Rights on Marriage) Act 2019 [“Muslim Women Act”] provides no express prohibition on the exercise of the power of the Court to grant anticipatory bail.
Respondent’s Arguments
The Court’s power to grant anticipatory bail under Section 438 of the Cr.P.C has been taken away by the provisions of Section 7(c) of the Muslim Women Act.
Court’s Observations
The Bench observed that the provisions of Section 7(c) apply to the Muslim husband. The offence created by Section 3 is, on the pronouncement of 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 was 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.
The Bench then examined whether clause (c) of Section 7 prohibits the Court from granting bail to the accused. The clause begins with the words “no person accused of an offence punishable under this Act shall be released on bail”.
Nevertheless, what follows is equally important, because of the conditions which precedes it.
Two conditions follow the above statement. First is the 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 second condition is only a recognition of something 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 Cr.P.C. The Court’s power 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.
Hence, though Section 7 begins with a non-obstante clause that operates in relation to the Cr.P.C, a plain construction of Section 7(c) would indicate that it does not impose a fetter on the Magistrate’s power to grant bail. However, there is a stipulation that before doing so, the married Muslim woman, upon whom talaq is pronounced, must be heard. Also, there should be a satisfaction of the Magistrate 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 Muslim Women Act. Only after giving the married Muslim woman a hearing, can the competent Court grant bail to the accused.
In Balchand Jain v. State of Madhya Pradesh (1976) 4 SCC 572, Justice Faizal Ali opined that if a provision intended to override the provisions of Section 438 of the Code, then the Legislature should have expressly stated in so many words that such provisions of Section 438 of the Code shall not apply to offences contemplated by a particular statute.
Court’s Decision
The Bench held that on a true and harmonious construction of Section 438 of Cr.P.C and Section 7(c) of the Act, there was no bar on granting anticipatory bail for an offence committed under Muslim Women Act.
While granting anticipatory bail to the Appellant, the Court stated that the allegations in the FIR are vague and general without any details, the Appellant (whose son was in a marital relationship with the second Respondent) should not be denied the benefit of the grant of anticipatory bail.
The Bench held that on a true and harmonious construction of Section 438 of Cr.P.C and Section 7(c) of the Act, there is no bar on granting anticipatory bail for an offence committed under Muslim Women Act.
Click here to read Rahna Jalal v. State of Kerala.
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