The offence under the triple talaq law can only be committed by a Muslim man, and his mother cannot be accused of it, the Supreme Court has ruled while granting anticipatory bail to a woman from Kerala.
Section 3 of The Muslim Women (Protection of Rights on Marriage) Act 2019 renders void and illegal pronouncement of talaq by a Muslim man upon his wife and under Section 4 of the law, a Muslim man who so pronounces talaq upon his wife can be punished with imprisonment of up to three years, the court said.
“The prohibition in Sections 3 and 4 is evidently one which operates in relation to a Muslim husband alone,” the bench of Justices D Y Chandrachud, Indu Malhotra and Indira Banerjee said while hearing a plea by Rahna Jalal against an order of the Kerala High Court denying her pre-arrest bail.
“This is supported by the Statement of Objects and Reasons accompanying the Muslim Women (Protection of Rights on Marriage) Bill 2019…”, which was “to give effect to the ruling of this court in Shayara Bano v Union of India [(2017) 9 SCC 1], and to liberate Muslim women from the customary practice of talaq-e-biddat (divorce by triple talaq) by Muslim men”, it said.
“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,” the bench said in its December 17 judgment.
The court also held that there was no bar on anticipatory bail under the Act provided the substantive conditions in Section 7(c) are met. These conditions are that the court must first hear the married Muslim woman who has made the complaint and must be satisfied that there are reasonable grounds for granting bail to such person.
The bench 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”.
The judgment said that even legislation, such as the SC and ST Act, where a bar is interposed on the application of Section 438 of the CrPC (anticipatory bail), “this court has held that the bar will not apply where the complaint does not make out ‘a prima facie case’ for the applicability of the provisions of the Act”.
“A statutory exclusion of the right to access remedies for bail is construed strictly, for a purpose. Excluding access to bail as a remedy impinges upon human liberty,” the bench said.
Jalal’s daughter-in-law had lodged an FIR at the North Parur Police Station complaining of offences under Section 498-A (cruelty by husband or relative of husband) of the IPC and The Muslim Women (Protection of Rights on Marriage) Act, 2019. Though Kerala opposed the anticipatory bail prayer, citing Section 498-A IPC, the court said “having regard to the vague and general nature of those allegations in the FIR, bereft of details, the appellant… should not be denied the benefit of the grant of anticipatory bail”.
The court had earlier declined to entertain a Special Leave Petition by the accused man and granted him time to surrender before the competent court and seek regular bail.
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