Recently, the Supreme Court has held that there is no prohibition on granting pre-arrest bail for an offence committed under Muslim Women (Protection of Rights on Marriage) Act provided that a competent court must first hear the Muslim woman who made the complaint.
Hon’ble Court further held that ad interim relief could be granted at the Court’s discretion during the pendency of the pre-arrest application.
The judgement mentioned above was rendered in an appeal which was filed against the judgement passed by Kerala High Court wherein the Court rejected the anticipatory bail.
The first petitioner is the spouse of the second respondent(complainant) and the second petitioner is the mother of the first petitioner. The Apex Court refused to entertain the first petitioner’s plea, and he was granted time to surrender and apply for regular bail after that.
As per the prosecution, the appellant’s son pronounced talaq three times on 5th December and entered into a second marriage.
The Bench noted that the main issue was whether the High Court was correct in declining the request for anticipatory bail by the accused.
As per the Bench u/s 4 of 2019 Act, a Muslim man cannot give triple talaq to his wife and u/s four the person who pronounces talaq can be imprisoned. The Court appreciated that under the new law, the husband cant divorce a wife arbitrarily, and such laws have been enacted to protect Muslim women.
The Bench also noted that in the instant case, mother in law(appellant) of the second respondent could not be booked for triple talaq as the offence can only be committed by a Muslim man.
A reference was made to Section 7c of the Act which bars the Court from granting pre-arrest bail u/s 438 of CrPc. On perusal, the Court noticed that under Section 7, clause (b) states that the Magistrate’s permission was required to grant bail and that the Magistrate can also specify the conditions and terms for compounding.
While referring to clause’ c’, the Court observed two conditions: the procedure and the second is substantive. The substantive condition states the Court should be satisfied that there are reasonable grounds to grant bail. The Bench concluded that clause ‘c’ does not deprive Court of its power to grant bail.
The judgement states that Parliament has not overridden the provisions Section 438 and Section 7c does make Section 438 inapplicable, and the Court has the power to grant bail.
It was further stated that Section 7 c does not bar the Court’s power to grant bail and the Court was free to grant bail on just and reasonable grounds.
However, the Court must first hear the woman who has made the complaint clarified the Court.