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2019 DIGILAW 423 (GAU)

Jesmin Begum v. State of Assam

2019-04-03

UJJAL BHUYAN

body2019
JUDGMENT AND ORDER : 1. Heard Mr. A.R. Bhuyan, learned counsel for the petitioner and Ms. M. Bhattacharjee, learned Govt. Advocate, Assam. 2. By filing this petition under article 226 of the Constitution of India, petitioner seeks a direction to the respondents more particularly respondent No. 4, i.e., Officer in-Charge, Rangia Police Station to invoke provisions of Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 in Rangia PS Case No. 37/2019 wherein her husband, i.e., respondent No. 5 is the accused. On 6.2.2018, the following order was passed: “Petitioner had lodged first information before the Officer-in-Charge, Rangia Police Station on 13.1.2019 alleging that her husband had pronounced triple talaq in written form, i.e., talaq-e-biddat which is not only illegal and unconstitutional but also a penal offence under section 4 of the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 and which has been made non-bailable under section 7 thereof. Grievance of the petitioner is that Officer in-Charge, Rangiya PS has registered the aforesaid first information as Rangia PS Case No. 37/2019 under section 498A, IPC ignoring the provisions of the Ordinance as above. Mr. Dhar to obtain instructions. List on 14.2.2019.” 3. Thereafter, when the matter was taken up on 14.2.2019, it was directed as under: “Today, when the matter is called upon, Mr. Dhar submits on the basis of written instructions of the Superintendent of Police, Kamrup at Amingaon that as per accusation of the informant, accused had not only pronounced instant triple talaq, i.e., talaq-e-biddat and drove the informant out of his house, he had also physically assaulted the informant. Therefore, Rangia PS Case No. 37 of 2019 was registered under section 498A, IPC and investigated upon. Superintendent of Police has indicated the various steps taken during the course of investigation. He has stated that now that provisions of the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018, has been brought to his notice, Investigating Officer will move the competent court for addition of section 4 of the aforesaid Ordinance. Mr. Bhuyan submits that not only section 4 of the aforesaid Ordinance would be attracted, in such a case, provision of section 3 of the Protection of Women from Domestic Violence Act, 2005 would also be attracted. Superintendent of Police, Kamrup at Amingaon may examine this aspect of the matter as well and do the needful. Court may monitor the investigation for some more time. Superintendent of Police, Kamrup at Amingaon may examine this aspect of the matter as well and do the needful. Court may monitor the investigation for some more time. List this case on 14.3.2019, when Mr. Dhar shall submit updated status of the steps taken.” 4. On the next date, i.e., on 14.3.2019, learned Govt. Advocate had produced a copy of letter dated 8.3.2019 addressed to him by the Superintendent of Police, Kamrup at Amingaon whereafter the following order was passed “Mr. Dhar has produced before the court a letter dated 8.3.2019 addressed to him by the Superintendent of Police, Kamrup, Amingaon. The letter recites that section 4 of Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 had been added in Rangia Police Station Case No. 37/2019. When the court had passed order for addition of the said section is not indicated. The letter also recites that bail was granted in A.B. No. 26/2019 to the husband of the petitioner. When such bail was granted is also not indicated. To say the least, the letter is devoid of material particulars. Confronted with such situation, Mr. Dhar prays for some more time to obtain instructions. Prayer is allowed. List on 27th March, 2019.” 5. In the hearing which took place on 27.3.2019, this court directed Superintendent of Police, Kamrup at Amingaon to clarify the issues raised by this court in the order dated 14.3.2019 as well as what was done pursuant to the observation of this court dated 14.2.2019 with regard to applicability of section 3 of the Protection of Women from Domestic Violence Act, 2005. 6. Today, when the matter is called upon, Ms. M. Bhattacharjee, learned Govt. Advocate, Assam submits on the basis of written instructions received from the Superintendent of Police, Kamrup at Amingaon that section 4 of the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 was added to Rangia PS Case No. 37/2019 which was initially registered under section 498A, IPC, after obtaining order from the court of Sub-Divisional Judicial Magistrate, Rangia on 12.2.2019. She further submits that steps have been taken for initiating legal action under sections 3 and 4 of the Protection of Women from Domestic Violence Act, 2005. In this connection, Protection Officer, Kamrup was moved on 2.4.2019 for taking necessary action. She also submits that learned Addl. She further submits that steps have been taken for initiating legal action under sections 3 and 4 of the Protection of Women from Domestic Violence Act, 2005. In this connection, Protection Officer, Kamrup was moved on 2.4.2019 for taking necessary action. She also submits that learned Addl. District and Sessions Judge, Kamrup, Rangia had granted anticipatory bail to the husband, i.e., respondent No. 5 vide order dated 15.2.2019 in AB No. 26/2019. She has detailed the steps taken by the investigating officer while investigating Rangia PS Case No. 37/2019. 7. Mr. Bhuyan, learned counsel for the petitioner submits that respondent No. 5, i.e., the husband had moved for anticipatory bail when Rangia PS Case No. 37/2019 was registered only under section 498A, IPC. After addition of section 4 of the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 hearing of the married muslim woman upon whom talaq is pronounced is required before bail can be granted. That apart, the Magistrate granting bail should be satisfied that there are reasonable grounds for granting bail to such person. He submits that prosecution has not taken any steps for cancellation of the anticipatory bail granted to respondent No. 5 in view of subsequent development. 8. Submissions made have been considered. 9. After hearing learned counsel for the parties and considering the submissions made by learned Govt. Advocate based on instructions received from the Superintendent of Police, Kamrup at Amingaon, Court is of the view that after monitoring by the court, the investigation appears to be on the right track. However, the investigating officer shall continue with the investigation expeditiously and take it to its logical conclusion. In the meanwhile, since the Protection Officer, Kamrup has been moved under section 4 of the Protection of Women from Domestic Violence Act, 2005, the said officer shall also take necessary steps in accordance with law. 10. At this stage, a brief reference may be made to the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018. It may be mentioned that in the case of Shayara Bano v. Union of India, (2017) 9 SCC 1 , a Constitution Bench of the Supreme Court had declared the practice of triple talaq, i.e., talaq-e-biddat as unconstitutional. 10. At this stage, a brief reference may be made to the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018. It may be mentioned that in the case of Shayara Bano v. Union of India, (2017) 9 SCC 1 , a Constitution Bench of the Supreme Court had declared the practice of triple talaq, i.e., talaq-e-biddat as unconstitutional. Taking note of the fact that such practice despite being declared unconstitutional is still continuing unabated, Lok Sabha passed the Muslim Women (Protection of Rights on Marriage) Bill, 2017 which is now pending in the Rajya Sabha. Since Parliament is not in session and since the President is satisfied that circumstances exist which renders it necessary to take immediate action to give effect to the provisions of the said Bill with certain modifications, the ordinance was promulgamated. 11. Learned counsel for the petitioner submits that the said Ordinance has since been extended. 12. “Talaq” has been defined under section 2(b) 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. As per section 3 of the Ordinance, 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 4 makes such pronouncement punishable with imprisonment for a term which may extend to three years and shall also be liable to fine. Section 7 makes the offence of pronouncement of triple talaq a cognizable but compoundable offence. However, such compounding is to be done only with the permission of the Magistrate, i.e., Judicial Magistrate of the First Class having jurisdiction and on such terms and conditions as the Magistrate may determine. Section 7(c) is relevant. It says that no person accused of an offence punishable under the ordinance shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person. 13. Therefore, when section 4 of the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 is invoked, the Magistrate before granting bail to the accused-husband has to hear the married muslim woman upon whom talaq was pronounced. 13. Therefore, when section 4 of the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018 is invoked, the Magistrate before granting bail to the accused-husband has to hear the married muslim woman upon whom talaq was pronounced. For such hearing, the married muslim woman upon on whom talaq was pronounced is required to be informed about filing of bail petition and given notice. Secondly, before bail is granted, the Magistrate must record his satisfaction that there are reasonable grounds for granting bail to such person. 14. From the above, what is discernible is that there are two conditions which govern grant of bail to a person accused of committing an offence under section 4 of the ordinance. Firstly, the aggrieved married muslim woman has to be given notice and heard. Secondly, satisfaction has to be recorded by the Magistrate that there are reasonable grounds for granting bail to such person. Only if these two conditions are fulfilled bail to the accused can be considered. Both the conditions have to be read in conjunction and without complying with the two conditions, bail cannot be granted. Such conditions a fortiori shall be applicable in the case of an application for anticipatory bail as well. 15. In the light of the above, petitioner would be at liberty to file an application before the learned Additional District and Sessions Judge, Kamrup, Rangia for reconsideration of the anticipatory bail granted to the accused in Rangia PS Case No. 37/2019 following addition of sections 3 and 4 of the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018. 16. Needless to say if the petitioner remains aggrieved, it will be open to her to approach the court again. 17. A copy of this order be furnished to the Superintendent of Police, Kamrup at Amingaon. Writ petition is disposed of.