SUPREME COURT HOLDS THAT RELATIVES OF A MUSLIM HUSBAND CANNOT BE ACCUSED OF AN OFFENCE UNDER THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019

The Three Judge Bench of the Hon’ble Supreme Court of India comprising of Justices Dr. Dhananjaya Y Chandrachud, Indu Malhotra and Indira Banerjee passed a Judgment dated 17-12-2020 in the case of Rahna Jalal v. State of Kerela and Another {Criminal Appeal No 883 of 2020 (Arising out of SLP (Crl) No 5693 of 2020)} and held that under the provisions of #MuslimWomen (Protection of Rights on Marriage) Act 2019 (hereinafter Act), the relatives of the Muslim husband cannot be accused of an offence under the said Act.

In the present case, the marriage between the Second Respondent and Appellant’s son was solemnised on 14-05-2016. On 27-08-2020, a first information report (FIR) was lodged by the second Respondent complaining of offences under Section 498-A r/w Section 34 of the Indian Penal Code, 1860 (IPC) and the Muslim Women (Protection of Rights on Marriage) Act 2019. The allegation in the said FIR is that the Appellant’s son on 05-12-2019, at around 2:30 pm pronounced talaq three times at their house. Following this pronouncement, the Appellant’s son entered into a second marriage.

Thereafter, an Application for Anticipatory Bail under Section 438 of Code of Criminal Procedure, 1973 (CrPC) was moved by the Appellant and her son. A Single Judge of Hon’ble High Court of Kerala vide Order dated 02-11-2020 rejected the Application for Anticipatory Bail. There was no reason given as to why the prayer for Anticipatory Bail was rejected. Aggrieved the Appellant and her son moved the Hon’ble Supreme Court of India under Article 136 of the Constitution of India. The issue which arose before the Apex Court is whether the High Court of Kerala was justified in rejecting the Application for Anticipatory Bail which was moved by the Appellant.

Taking into consideration the contention of the parties, the Bench observed that under Section 3 of the Act, a pronouncement of talaq by a Muslim husband upon his wife has been rendered void and illegal and the same is punishable with an imprisonment for a term, which may extend to three years and shall also be liable to fine. Section 7(c) of the Act which provides that “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” applies to the Muslim husband. The Court held that Section 7(c) does not impose an absolute bar to the grant of bail and a Magistrate on satisfaction that “there are reasonable grounds for granting bail to such person” and upon hearing the married Muslim woman upon whom the talaq is pronounced, may grant bail.

The Apex Court held that “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.”

Further, the Hon’ble Supreme Court observed that while granting pre-arrest bail, there is no bar on granting Anticipatory Bail for an offence committed under the Act, however, the Court must hear the married Muslim woman who has made the complaint before rejecting or granting the Anticipatory Bail. Also, the Court after issuing notice to the married Muslim woman may grant ad-interim relief to the accused during the pendency of the Anticipatory Bail Application.

Allowing the Appeal, the Apex Court held that in the event of arrest, the Appellant who is the mother-in-law of the second Respondent shall be released on bail by the competent Court.

Suchitra Upadhyay

Associate

The Indian Lawyer & Allied Services

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