Triple Talaq Law can’t curb right to Pre-Arrest Bail: Supreme Court

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On Thursday, the Apex Court ruled that the Muslim Women (Protection of Rights on Marriage) Act, declaring triple talaq mode of divorce among Muslims illegal, didn’t take away a person’s right to seek anticipatory bail from a competent Court.

A bench of Justice D Y Chandrachud, Justice Indu Malhotra and Justice Indira Banerjee gave this ruling in a case where a man was booked under Section 4 of the Act after his estranged wife accused him of giving triple talaq & marrying a second time.

She also accused the husband & his mother of harassing her for dowry. The man said he & his first wife had been estranged for the last 3 years. He said 6 months earlier, she had complained to the Masjid Committee but hadn’t complained of any matrimonial ill-treatment. It was only after he contracted a second marriage, which was permitted under Muslim personal law, that the first wife made the complaint under the triple talaq abolition law as well as Section 498A of the Indian Penal Code. He said he had not given divorce through triple talaq. He also said his mother was falsely roped in the case by his first wife.

The Justice Chandrachud-led bench pointed to differences in provisions in the law making triple talaq an offence & that of the Scheduled Caste & Scheduled Tribe (Prevention of Atrocities) Act, & said the latter expressly provided that no court should exercise its discretionary powers under Section 438 of Criminal Procedure Code to grant pre-arrest bail.

The bench discussed Section 7(c) of the Act, which provides that “no person accused of an offence …shall be released on bail unless the magistrate…is satisfied that there are reasonable grounds for granting bail to such person”. The mandatory provision of hearing the aggrieved woman before grant of bail would mean that the accused person would have to first suffer incarceration & then apply for bail. The bench said the Act, as evident, did not expressly exclude the court’s jurisdiction to grant bail, which would include grant of pre-arrest bail. 

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