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 apex 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 D.Y. 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 apex 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.
