Muslim women

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of Dr. DY Chandrachud*, Indu Malhotra and Indira Banerjee, JJ has held that there is no bar on granting anticipatory bail for an offence committed under the Muslim Women (Protection of Rights on Marriage) Act 2019, provided that the competent court must hear the married Muslim woman who has made the complaint before granting the anticipatory bail.

Background

On 27 August 2020, a Muslim woman lodged a first information report, complaining of offences under the provisions of Section 498-A read with Section 34 of the Indian Penal Code and the Muslim Women (Protection of Rights on Marriage) Act 2019, alleging that in December 2019, her husband pronounced talaq three times at their house. Following this, he entered into a second marriage.

The Kerala High Court, on November 2, 2020, while declining to grant anticipatory bail observed:

“If the prosecution case is correct, the 1st petitioner is now enjoying with his second wife when the matrimonial relationship with the de facto complainant is in existence.”

However, the order of the High Court contained no reason why the appellant, i.e. the mother-in-law of the complainant, was being denied anticipatory bail.

The first petitioner is the spouse of the complainant and second petitioner is the mother of the first petitioner. Supreme Court had, on December 3, 2020, refused to entertain the Special Leave Petition by the first petitioner and he was granted time to surrender before the competent court of jurisdiction and apply for regular bail.

The Court was now called upon to decide whether the High Court was right in refusing to grant anticipatory bail to the appellant i.e. the mother-in-law of the complainant.

Analysis

Who is punishable for the offence of pronouncement of triple talaq?

The Muslim Women (Protection of Rights on Marriage) Bill 2019 was introduced in the Parliament 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.”

The provisions of Section 7(c) apply to the Muslim husband. The offence which is created by Section 3 is on the pronouncement of a talaq by a Muslim husband upon his wife. Section 3 renders the pronouncement of talaq void and illegal. Section 4 makes the Act of the Muslim husband punishable with imprisonment.

“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.”

Does Section 7(c) of the Act bars the power of the court to grant anticipatory bail under Section 438 of the CrPC?

Under clause (c) of Section 7, Parliament has provided that no person who is accused of an offence punishable under the Act shall be released bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom the talaq is pronounced, is satisfied that there are reasonable grounds for granting bail.

The statutory text indicates that Section 7(c) does not impose an absolute bar to the grant of bail. On the contrary, 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 is pronounced.

Hence, 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.

“This implies that even while entertaining an application for grant of anticipatory bail for an offence under the Act, the competent court must hear the married Muslim woman who has made the complaint, as prescribed under Section 7(c) of the Act. Only after giving the married Muslim woman a hearing, can the competent court grant bail to the accused.”

Further, the legislature has not expressly barred the application of Section 438 of CrPC. The provisions of Section 7(c) of the Act must be distinguished from provisions which are contained certain other statutes which expressly exclude the provisions of Section 438 of the CrPC.

Hence, on a true and harmonious construction of Section 438 of CrPC and Section 7(c) of the Act, it was held that 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.

[Rahna Jalal v. State of Kerala, 2020 SCC OnLine SC 1061, order dated 17.12.2020]

*Justice Dr. DY Chandrachud has penned this order. Read more about him here. 

Advocates who appeared in the matter:

For Appellant: Advocate Haris Beeran,

For Second Respondent i.e. the complainant: Senior Advocate V. Chitambaresh, and advocate Harshad V. Hameed,

For State of Kerala: Advocate G. Prakash

Also read:

In the historic judgment, SC says that Triple Talaq is not fundamental to Islam; Practice set aside by a 3:2 majority

Case BriefsHigh Courts

Delhi High Court: A Division Bench of Vipin Sanghi and Rajnish Bhatnagar, JJ., in regard to Triple Talaq observed that,

Prima facie it appears that the object of Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 is to discourage the age-old and traditional practice of pronouncement of talaq by a Muslim husband upon his wife by resort to talaq-e-biddat.

Issues in the instant petition have been pending for consideration before the Supreme Court in WP (C) No. 994 of 2019.

In view of the above, Bench stated that since the matter is pending before the Supreme Court, hence it would wait for the judgment of the Supreme Court.

Petitioners Counsel, Tarun Chandiok and Naseem Ahmed had moved the present application with the prayer that pending the consideration of the petition, all FIRs registered under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 be stayed.

Substantial Question of Law

Further, it added to its submissions that the minimum number of Judges who should sit for the purpose of deciding any case involving substantial question of law as to the interpretation of the constitution, or for the purpose of hearing any reference under Article 143 should be five.

Bench rejected the above-stated submission stating that there is no provision either in the Constitution or in any other law which required this Court to place the matter before a Larger Bench at this stage.

Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019

Bench noted that the present petition is not in the nature of a Public Interest Litigation. Hence Court denied invoking Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019

Petitioner also submitted that Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 declares the practice of triple talaq as popularly known, to be void and illegal.

What does the said provision state:

“any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal”. Section 2(c) defines talaq to mean “talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband”.

Triple Talaq

Petitioner’s Counsel also added to its submissions that once triple talaq has been rendered void and illegal, there is no justification for criminalizing pronouncement of triple talaq, since such triple talaq would have no legal effect on the status of the Muslim Marriage.

Since it is of no consequence and does not end the marital status of the wife – who may be subjected to triple talaq, there is no purpose of penalising the said Act. Section 4 of the said Act provides “any Muslim husband who pronounces talaq referred to in Section 3 upon his wife shall be punished with imprisonment for a term which may extend to 3 years and shall also be liable to fine.”

Counsel relied on the decisions of the Supreme Court in Shayara Bano v. Union of India, (2017) 9 SCC 1 and Behram Khurshid Pesikaka v. State of Bombay, (1955) 1 SCR 613.

Bench held that,

“Legislation is presumed to be valid, unless it is declared to be invalid, or unconstitutional by a Competent Court, and is struck down.”

Court observed that the prima facie it appears that the object of Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 is to discourage the age-old and traditional practice of pronouncement of talaq by a Muslim husband upon his wife by resort to talaq-e-biddat i.e. triple talaq.

Purpose of Section 4 appears to provide a deterrent against such practice.

Merely because triple talaq has been declared to be void and illegal, it does not mean that the legislature could not have made the continuation of such practice an offence.

High Court in view of the above discussion, did not grant any interim relief. [Nadeem Khan v. Union of India, 2020 SCC OnLine Del 1336, decided on 13-10-2020]

Case BriefsHigh Courts

Madras High Court: While disposing of an appeal filed under Section 96 of the Code of Civil Procedure, 1908 the Single Bench of R.M.T. Teekaa Raman, J. held that a gift by a father to his minor child can be accepted by child’s mother under the Mohammedan Law.

 The plaintiff had filed a suit for partition and for permanent injunction against the defendants restraining them from alienating the suit properties. The plaintiff contended that suit properties were acquired by Hashim Saheb who possessed the same till he died intestate on 12.06.2004. The plaintiff and the third defendant were daughters,  Defendants 1 and 2 were sons and the fourth defendant was the widow of Hashim Saheb. The trial court found that Hashim Bai had executed a gift settlement in respect of most of the suit properties to his sons and thereby refused the relief of partition as claimed by the plaintiff. The plaintiff, in appeal, contended that at the time of execution of the Gift Deeds, the second defendant was minor and his mother had represented on his behalf and hence the same was not valid as under Mohammedan law women have no rights to act as guardian.

The High Court noted that Section 359 of Mulla’s Principles of Mohammedan Law which governs the guardianship of the property of the minors, describes that only the father or father’s father can act as a guardian. Further, the general rule under Section 156 requires that a gift to a minor by a person other than his father or guardian will be completed by delivery of possession to the father or guardian. However, the instant case falls under Section 155 which omits the requirement of transfer of possession when a father gifts property to his child. On a conjoint reading of Section 155 with that of Section 359, the Court concluded that when mother was the only person who could look after the interest of the minor, acceptance of the gift by the mother was not invalid, and in such cases, the completion of the gift for his benefit is to be the sole consideration. [Shamshed Begum v. Sadiq Basha, 2016 SCC OnLine Mad 16883, decided on December 22, 2016]