Supreme Court: Triple Talaq-No Complete Bar On Anticipatory Bail For Offence Under 2019 Act, Provided Court Hear Complainant Woman

For the above reasons, we have come to the conclusion that 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.

Reportable

Supreme Court - Daily Orders

Rahna Jalal vs The State Of Kerala on 17 December, 2020

Criminal Appeal No 883 of 2020  
Read full Judgment here: Click here     

Citation:(2021)1 SCC 733,2020 SCCONLINESC 1061                                                                                     

Print Page

Whether application for anticipatory bail is maintainable in offences under Muslim Women (Protection of Rights on Marriage) Act 2019?

 When there are specific provision and specific

procedure contemplated for consideration of bail by the

Magistrate Court under Section 7(c) of the Act, 2019, whether

an application under Section 438 Cr.P.C. is to be entertained is

the question in this case. There is indeed no prohibition of the

applicability of Section 438 Cr.P.C. in the Act, 2019. Section

18 of the Scheduled Caste and Scheduled Tribe (Prevention of

Atrocities) Act, 1989 clearly says that nothing in Section 438 of

the Cr.P.C. shall apply in relation to any case involving the

arrest of any person on an accusation of having committed an

offence under that Act. But, there is no such prohibitory

Section in the Act, 2019 restraining the court in entertaining an

application under Section 438 Cr.P.C. Therefore, it cannot be

said that there is a total bar to entertain an application under

Section 438 Cr.P.C. if an offence under the Act, 2019 is alleged

against an accused.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

MR. JUSTICE P.V.KUNHIKRISHNAN

Bail Appl..No.9163 OF 2019

NAHAS Vs THE STATE OF KERALA,

Print Page

Guidelines of Kerala high court for the procedure to be followed for grant of bail to accused for an offence under Muslim Women (Protection of Rights on Marriage) Act 2019

  Therefore, from the above discussions, the

following conclusions are emerged :

(i) An application under Section 438 Cr.P.C. is not

barred in a case in which an offence under the

provisions of Act, 2019 is alleged. But, if an

accused wants to avail the right under Section 438

Cr.P.C., he should specifically plead in an

application under Section 438 Cr.P.C. about the

reasons for not approaching the Magistrate under

Section 7(c) of the Act, 2019.

(ii) If an accused in a case registered under the

provisions of the Act, 2019 filed a Bail Application

before the Magistrate under Section 7(c), his

personal presence before the Magistrate is not

necessary till final orders are passed in the Bail

Application. The personal presence of the victim is

also not needed. The accused can file the Bail

Application through a lawyer if he intends to do so.

The victim also can contest the bail application

through a lawyer if she decides so.

(iii) If a Bail Application is filed under Section 7(c) of the

Act, 2019, the Magistrate should hear the married

Muslim woman upon whom talaq is pronounced.

(iv) The order passed in a Bail Application filed under

Section 7(c) should be a speaking order.

(v) If a Bail Application filed by an accused under

section 7(c) of the Act, 2019 is allowed, the

Magistrate can direct the accused to appear before

the court within a short period to comply the bail

conditions including the execution of bond, etc.

(vi) If a Bail Application is dismissed by the learned

Magistrate under Section 7(c) of the Act, 2019, the

Investigating Officer can take up follow up action

and arrest the accused, if necessary.

(vii) If a Bail Application is dismissed by the learned

Magistrate under Section 7(c) of the Act, 2019, the

accused can challenge that order, if he intends to do

so, in accordance with law. At that stage, the

accused can even file an application under Section

438 Cr.P.C., if there is an apprehension of arrest.

(viii) If an application under Section 7(c) is allowed, the

married Muslim woman upon whom a talaq is

pronounced can challenge that order in accordance

with law.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT

MR. JUSTICE P.V.KUNHIKRISHNAN

Bail Appl..No.9163 OF 2019

NAHAS Vs THE STATE OF KERALA,

Dated this the 3rd day of August 2020

Print Page

Triple Talaq Judgment

Applying the test of manifest arbitrariness to the case at hand, it is clear that Triple Talaq is a form of Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq. We have noticed how in Fyzee's book (supra), the Hanafi school of Shariat law, which itself recognizes this form of Talaq, specifically states that though lawful it is sinful in that it incurs the wrath of God. Indeed, in Shamim Ara v. State of U.P., MANU/SC/0850/2002 : (2002) 7 SCC 518, this Court after referring to a number of authorities including certain recent High Court judgments held as under:

13...The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters -- one from the wife's family and the other from the husband's; if the attempts fail, talaq may be effected (para 13). In Rukia Khatun case [MANU/GH/0031/1979 : (1981) 1 Gau LR 375] the Division Bench stated that the correct law of talaq, as ordained by the Holy Quran, is: (i) that "talaq" must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his. If their attempts fail, "talaq" may be effected. The Division Bench expressly recorded its dissent from the Calcutta and Bombay views which, in their opinion, did not lay down the correct law.

14. We are in respectful agreement with the abovesaid observations made by the learned Judges of the High Courts.

(at page 526)

284. Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad (supra), such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara (supra). This being the case, it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained Under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression "laws in force" in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him.

ORDER of THE COURT

In view of the different opinions recorded, by a majority of 3:2 the practice of 'talaq-e-biddat'-triple talaq is set aside.

IN THE SUPREME COURT OF INDIA

Writ Petition (C) Nos. 118, 288, 327, 665 of 2016, 43 of 2017 and Suo Motu Writ (C) No. 2 of 2015 (Under Article 32 of the Constitution of India)

Decided On: 22.08.2017

 Shayara Bano Vs. Union of India (UOI) and Ors.

Print Page