RAHNA JALAL versus STATE OF KERALA AND ANOTHER

Citation: [2020] 13 S.C.R. 621 · Decided: 17-12-2020 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed

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Judgment (excerpt)

[2020] 13 S.C.R. 621
621
RAHNA JALAL
v.
STATE OF KERALA AND ANOTHER
(Criminal Appeal No. 883 of 2020)
DECEMBER 17, 2020
[DR. DHANANJAYA Y CHANDRACHUD,
INDU MALHOTRA AND INDIRA BANERJEE, JJ.]
Code of Criminal Procedure, 1973: s.438 – Grant of
anticipatory bail – Whether provisions of s.7(c) of the Muslim Women
(Protection of Rights on Marriage) Act, 2019 would bar the grant
of anticipatory bail under s.438 to the mother-in-law of the muslim
woman upon whom triple talaq was pronounced by her husband –
Held: The provisions of s.7(c) of the Act, 2019 apply to the Muslim
husband – The offence which is created by s.3 of the Act, 2019 is
on the pronouncement of a talaq by a Muslim husband upon his
wife – s.4 of the Act, 2019 makes such act of the Muslim husband
punishable with imprisonment – The mother-in-law of the aggrieved
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 – Thus, in this situation, mother-in-law cannot be denied grant
of anticipatory bail – Muslim Women (Protection of Rights on
Marriage) Act, 2019 – s.7(c).
Code of Criminal Procedure, 1973: s.438 – FIR complaining
of offence under provisions of s.498A IPC against the mother-in-
law – Grant of anticipatory bail – Held: In view of vague and general
nature of allegations made in the FIR, bereft of details, appellant-
mother-in-law should not be denied the benefit of grant of
anticipatory bail – Penal Code, 1860 – s.498A.
Muslim Women (Protection of Rights on Marriage) Act, 2019:
s.7(c) – Whether s.7(c) of the Act, 2019 bars the power of the Court
to grant anticipatory bail under s.438 CrPC – Held: A plain
construction of s.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
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SUPREME COURT REPORTS
[2020] 13 S.C.R.
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
s.7(c) of the Act – Only after giving the married Muslim woman a
hearing, can the competent court grant bail to the accused – This
interpretation is fortified by the fact that the legislature has not
expressly barred the application of s.438, CrPC – Code of Criminal
Procedure, 1973 – s.438.
Muslim Women (Protection of Rights on Marriage) Act, 2019:
s.7 – Interpretation of – Held: Under clause (a) of s.7, the offence
is cognizable, if the information is given by the married Muslim
woman or a person related to her by blood or marriage to the officer
in charge of a police station of the commission of the offence –
Under clause (b), the offence is compoundable at the instance of
the married Muslim woman upon whom the talaq is pronounced –
However, in terms of clause (b), the permission of the Magistrate is
required – The Magistrate can specify the terms and conditions for
compounding – Facially, clause (c) begins with the words “no person
accused of an offence punishable under this Act shall be released
on bail” – But two conditions follow – One of them is in the realm of
procedure while the second is substantive – The former requires a
hearing to be given to the married Muslim woman upon whom talaq
has been pronounced – The latter requires the court to be “satisfied
that there are reasonable grounds for granting bail to such person”
– This substantive condition is only a recognition of something which
is implicit in the judicial power to grant bail – No court will grant
bail unless there are reasonable grounds to grant bail – All judicial
discretion has to be exercised on reasonable grounds – Hence, the
substantive condition in clause (c) does not deprive the court of its
power to grant bail – Parliament has not overridden the provisions
of s.438, CrPC – There is no specific provision in s.7(c), or elsewhere
in the Act, making s.438 inapplicable to an offence punishable under
the Act.
Allowing the appeal, the Court
HELD: 1. Under Section 3, a pronouncement of talaq by a
Muslim husband upon his wife has been rendered void and illegal.
Under Section 4, a Muslim husband who pronounces talaq upon
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his wife, as referr

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