New Delhi : The Supreme
Court has said there is no bar on granting anticipatory bail for an offence
committed under the Muslim Women (Protection of Rights on Marriage) Act 2019,
which makes the practice of instant divorce through "triple talaq"
among Muslims a punishable offence, provided the court hears the complainant
woman before granting pre-arrest bail.
The top court noted that under
the provisions of the Act, a Muslim husband who pronounces "triple
talaq" upon his wife can be sentenced to a jail term that may extend to
three years.
The top court said the
prohibition in the 2019 law is evidently one "which operates in relation
to a Muslim husband alone".
A bench headed by Justice DY
Chandrachud referred to the relevant sections of the Act and also the provision
of the Code of Criminal Procedure (CrPC), which relates to directions for the
grant of bail to a person apprehending arrest.
"For the above reasons, we
have come to the conclusion that on a true and harmonious construction of
section 438 of the 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," the bench, also
comprising justices Indu Malhotra and Indira Banerjee, said.
"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," it added.
The top court passed the verdict
while granting anticipatory bail to a woman accused of harassing her
daughter-in-law, who got an FIR lodged in August last year, alleging that her
spouse had pronounced "triple talaq" on her at their house.
The bench was hearing an appeal
filed against a Kerala High Court order, which had declined to grant
anticipatory bail to the woman.
Referring to the provisions of
the 2019 Act, the top court said, "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
Parliament."
The court noted that under
section 3 of the Act, the pronouncement of "triple talaq" by a Muslim
husband upon his wife has been rendered void and illegal while section 4 deals
with the punishment for the same.
"Thus, on a preliminary
analysis, it is clear that the appellant, as the mother-in-law of the second
respondent (complainant 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," the bench said.
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