Bombay High Court
Abdul Hakk Mohammad Shaukat ... vs The State Of Maharashtra And ... on 25 April, 2022
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
29-CriAppln-1423-2022
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
29 CRIMINAL APPLICATION NO. 1423 OF 2022
ABDUL HAKK MOHAMMAD SHAUKAT QURESHI AND OTHERS
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
.....
Advocate for Applicants : Mr. Salunke Sudarshan J.
APP for Respondent-State : Mr. R. V. Dasalkar
.....
CORAM : V. K. JADHAV AND
SANDIPKUMAR. C. MORE, JJ.
DATED : 25th APRIL, 2022
PER COURT:-
1. We have heard learned counsel for the applicants. Learned
counsel submits that so far as the provisions of Section 4 of the Muslim
Women (Protection of Rights on Marriage) Act, 2019 (for short, "Act of
2019") are concerned, the punishment for pronouncing talaq is
prescribed and in terms of the said provisions, any Muslim husband who
pronounces talaq referred to in Section 3 of the Act of 2019 upon his
wife shall be punished with imprisonment for a term which may extend
to three years and shall also be liable to fine. Learned counsel submits
that so far as Section 7 of the Act of 2019, which prescribes the offences
to be cognizable, compoundable, etc., is concerned, in terms of clause
(c) of Section 7, no person accused of an offence punishable under the
Act of 2019 shall be released on bail unless the Magistrate is satisfied
about the condition as elaborated in clause (c).
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2. Learned counsel has relied upon the case of Rahna Jalal v. State
of Kerala and another (Criminal Appeal No. 883 of 2020 decided by the
Suprme Court by judgment dated 17.12.2020), wherein the Supreme
Court in para 8 has made the following observations:
"8. 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 Rasons 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 would have to be interpreted. Section 7 provides as
follows:
"7. Offences to be cognizable, compoundable, etc:
Notwithstanding anything contained in the Code of
Criminal Procedure, 1973, -
(a) an offence punishable under this Act shall be
cognizable, if information relating to the commisison of
the offence is given to an officer in charge of a police
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station by the married Muslim woman upon whom talaq
is pronounced or any person related to her by blood or
marriage;
(b) an offence punishable under this Act shall be
compoundable, at the instance of the married Muslim
woman upon whom talaq is pronounced with the
permission of the Magistrate, on such terms and
conditions as he may determine;
(c) 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."
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."
3. Learned counsel submits that the Supreme Court has observed in
para 8 of the aforesaid judgment that the offence which is created by
Section 3 of the Act of 2019 is on the pronouncement of a talaq by a
29-CriAppln-1423-2022
muslim husband upon his wife and Section 4 makes the act of the
Muslim husband punishable with imprisonment. It is thus clear that the
husband alone is liable to face the prosecution under Section 4 of the Act
of 2019 and not the other relatives of the husband.
4. Learned counsel submits that so far as the charge under Section
498A of IPC is concerned, the allegations have been made mainly against
the co-accused husband who is not before this Court as an applicant.
Learned counsel submits that the allegations as against these applicants
are general in nature without quoting any specific incident coupled with
individual acts.
5. We find much substance in the above submissions made on behalf
of the applicants. Issue notice to the respondents, returnable on
15.06.2022. Learned APP waives notice for respondent no.1 State.
6. Call papers.
(SANDIPKUMAR C. MORE, J.) (V. K. JADHAV, J.)
vre
29-CriAppln-1423-2022
