"Excluding access to bail impinges upon human liberty:" Supreme Court rules no bar on anticipatory bail under 2019 Triple Talaq law

The Supreme Court recently held that there is no bar on granting anticipatory bail under the Muslim Women (Protection of Rights on Marriage) Act, 2019 (Act) if a competent court has heard the complainant Muslim woman before granting such bail.

. The top court also held that 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."

. "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," the Court ruled. . A three-judge Bench of Justices DY Chandrachud, Indu Malhotra and Indira Banerjee was hearing an appeal filed by the mother-in-law of a Muslim woman whose husband had pronounced triple talaq after which he entered into a second marriage with another woman.

. An FIR was registered at North Parur police station for offences under Section 498A of IPC and provisions of the Muslim Women (Protection of Rights on Marriage) Act against the husband and mother-in-law.

The Kerala High Court declined to grant anticipatory bail to mother-in-law and asked her to surrender post December 3, 2020.

. Advocate for the complainant, Senior Counsel V Chitambaresh argued that the power of the court to grant anticipatory bail under Section 438 of the CrPC was taken away by the provisions of Section 7(c) of the Act.

. Opposing this submission, advocate Haris Beeran , representing the appellant mother-in-law, argued that Section 7(c) of the Act provides no express prohibition on the exercise of the power of the court to grant anticipatory bail.

. Section 7(c) states 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.

. The Supreme Court noted that the mother-in-law cannot be accused under Section 7(c) as it applies to only the Muslim man.

. Having said that, the Court still proceeded to deal with the issue of whether Section 7(c) of the Act bars the power of the court to grant anticipatory bail under Section 438 of the CrPC.

. The Court examined Section 7 to hold that 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 was pronounced.

. "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," the three-judge bench said.

. The Court also adverted to the Prevention of Atrocities against Scheduled Caste and Scheduled Tribes Act which expressly bars grant of anticipatory bail. Even then, the Supreme Court has held in Prathvi Raj Chauhan v. Union of India and Others that if the complainant fails to prove a prima facie case, then such anticipatory bail can be granted by invoking inherent powers, the top court noted.

. The Court, therefore, allowed the appeal and ordered that if the mother in law is arrested, she be released on furnishing a bond of Rs. 25,000.

. [Read judgment]

"Excluding access to bail impinges upon human liberty:" Supreme Court rules no bar on anticipatory bail under 2019 Triple Talaq law

Debayan Roy

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