[Triple Talaq] SC: Relatives of husband cannot be accused of offence under Muslim Women (Protection of Rights on Marriage) Act [Read Order]

A three judge bench of the Supreme Court consisting of Justices Dr. Dhananjaya Y Chandrachud, Indu Malhotra and Indira Banerjee, in the case of Rahna Jalal v. State of Kerala and Another- observed that relatives of a ‘husband’ cannot be accused of an offence under Muslim Women (Protection of Rights on Marriage) Act. The bench while granting anticipatory bail to the accused stated that, “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.”

FACTUAL BACKGROUND

This appeal arose from judgment of a learned Single Judge of High Court of Kerala, rejecting the application for anticipatory bail under Section 438 of the Code of Criminal Procedure 19731. Originally, the Special Leave Petition under Article 136 of the Constitution was filed by two petitioners.

The first petitioner was the spouse of the second respondent, who has filed the complaint leading to the registration of FIR. The second petitioner is the mother of the first petitioner. By an order of this Court dated 3 December 2020, the Special Leave Petition was not entertained at the behest of the first petitioner and he was granted time to surrender before the competent court of jurisdiction and apply for regular bail.

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).

The marriage between the second respondent (wife) and the appellant’s son was solemnized in 2016. They had a child in May 2017. In August 2020, the second respondent lodged an FIR, complaining of offences under the provisions of Section 498-A read with Section 34 of IPC and the Muslim Women (Protection of Rights on Marriage) Act 2019. FIR alleged that on 5 December 2019, the appellant’s son pronounced talaq three times at their house. Following this, the appellant’s son entered into a second marriage. 

The Kerala High Court was moved with an application for anticipatory bail by both petitioners. The first application was withdrawn due to a lack of proper pleadings, while the second application was not pressed since there was a chance of a settlement between the complainant and her spouse. Since no settlement occurred, the High Court was moved for grant of anticipatory bail which was declined with following observations:

“If the prosecution case is correct, the 1st petitioner is now enjoying with his second wife when the matrimonial relationship with the de facto complainant is in existence.”

The order of the High Court contains no reason why the appellant was being denied anticipatory bail.”

REASONING AND DECISION OF THE COURT

Reflecting upon the scheme of the Muslim Women (Protection of Rights on Marriage) Act- the Court first deliberated on the mandate of Sections 3 and 4 along with the statement of object of the Act, and observed:

“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 v. Union of India, 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.”

The Court further observed:  

"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.”  

Observations with respect to whether Sec. 7(c) of the Act bars- court to grant anticipatory bail u/s 438 of Cr.P.C.

The Court observed that:

“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.”

“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 non-obstante 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. 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 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. 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 above interpretation is fortified by the fact that the legislature has not expressly barred the application of Section 438 of CrPC.” 

Reflecting upon certain other statutes which expressly excludes the provisions of Section 438 of the Cr.P.C., the Court observed that:

[1] Maharashtra Control of Organised Crime Act, 1999

“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 (MCOCA) explicitly excludes the application of Section 438 of CrPC. Section 21 (3) of MCOCA stipulates:

“(3) Nothing in section 438 of the Code shall apply in relation to any case involving the arrest of any person on an accusation of having committed an offence punishable under this Act.””

[2] Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989

“The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989 also contains similar provisions (Sections 18 and 18-A), which exclude the application of Section 438 of CrPC. " 

“Thus, even in the context of legislation, such as the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989, where a bar is interposed by the provisions of Section 18 and Sub-section (2) of Section 18-A on the application of Section 438 of the CrPC, this Court has held that the bar will not apply where the complaint does not make out “a prima facie case” for the applicability of the provisions of the Act. A statutory exclusion of the right to access remedies for bail is construed strictly, for a purpose. Excluding access to bail as a remedy, impinges upon human liberty.”

Harmonious construction- no bar on granting anticipatory bail for an offence committed under triple talaq Act

“For the above reasons, we have come to the conclusion 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 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.”

HELD

“By the order of this Court dated 3 December 2020, interim protection from arrest has been granted to the appellant. The primary allegation which is pressed in aid to deny anticipatory bail is the pronouncement of triple talaq by the spouse of the second respondent. In the preceding paragraphs we have observed that an offence under the Act is by the Muslim man who has pronounced talaq upon his spouse, and not the appellant, who is the mother-in-law of the second respondent.

Though, Mr. G. Prakash, learned counsel appearing on behalf of the State of Kerala has adverted to the allegations under Section 498A of the CrPC to oppose the grant of bail, we are of the view that having regard to the vague and general nature of those allegations in the FIR, bereft of details, the appellant (whose son is in a marital relationship with the second respondent) should not be denied the benefit of the grant of anticipatory bail. It must also be noted that the Judicial Magistrate First Class-I, North Parur, by an order dated 23 October 2020, while deciding the second respondent’s application (CMP 1529/2020 and CMP 1530/2020 in MC 28/2020)  under Section 23 of the Protection of Women from Domestic Violence Act, 2005 did not find any substance in the allegations against the appellant.”

“We accordingly order and direct that in the event of the arrest of the appellant, she shall be released on bail by the competent court, subject to her filing a personal bond of Rs 25,000. The appellant shall cooperate in the course of the investigation by the Investigating Officer.”

Case Details

Name: Rahna Jalal vs State of Kerala and Another

Case No.: Criminal Appeal No. 883 of 2020 (Arising out of SLP (Cri) No. 5693 of 2020)

Date: December 17, 2020

Bench: Justices Dr. Dhananjaya Y Chandrachud, Indu Malhotra and Indira Banerjee

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