JUDGMENT :

Dr. Dhananjaya Y Chandrachud, J

1. Leave granted.

2. This appeal arises from a judgment of a learned Single Judge of the High Court of Kerala, rejecting the application for anticipatory bail under Section 438 of the Code of Criminal Procedure 1973¹[CrPC]. Originally, the Special Leave Petition under Article 136 of the Constitution was filed by two petitioners. The first petitioner is the spouse of the second respondent, who has filed the complaint leading to the registration of the first information report. The second petitioner is the mother of the first petitioner. By an order of this Court dated 3 December 2020, the Special Leave Petition was not entertained at the behest of the first petitioner and he was granted time to surrender before the competent court of jurisdiction and apply for regular bail.

3. The issue which survives in the present appeal is whether the High Court was justified in declining the prayer for anticipatory bail moved by the appellant (the second petitioner in the Special Leave Petition as it was originally filed). The marriage between the second respondent and the appellant’s son was solemnized on 14 May 2016. They have a child who was born in May 2017. On 27 August 2020, the second respondent lodged a first information report, complaining of offences under the provisions of Section 498-A read with Section 34 of the Indian Penal Code²[IPC] and the Muslim Women (Protection of Rights on Marriage) Act 2019³[Act]. On 27 August 2020, the first information report, being FIR No 908, was lodged at North Parur Police Station, District Ernakulam Rural. Insofar as is material to the controversy in the present appeal, the FIR contains an allegation that on 5 December 2019, at about 2.30pm, the appellant’s son pronounced talaq three times at their house. Following this, it has been stated, the appellant’s son entered into a second marriage.

4. The Kerala High Court was moved with an application for anticipatory bail by both petitioners. The first application was withdrawn⁴[B.A. No. 5748 of 2020, order dated 14.09.2020 (Kerala High Court)], apparently due to a lack of proper pleadings. The second application, it has been recorded by the High Court, ⁵[B.A. No. 5944 of 2020, order dated 09.10.2020 (Kerala High Court)] was not pressed since there was a chance of a settlement between the complainant and her spouse. Since no settlement occurred, the High Court was moved for grant of anticipatory bail⁶[B.A. No. 6981 of 2020]. The Single Judge of the High Court, on 02 November 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.”

The order of the High Court contains no reason why the appellant was being denied anticipatory bail.

5. We have heard Mr. Haris Beeran, learned counsel on behalf of the appellant. Mr. V. Chitambaresh, learned senior counsel with Mr. Harshad V. Hameed, learned counsel for the second respondent; and Mr. G. Prakash, learned counsel for the State of Kerala.

6. Mr. V. Chitambaresh, learned senior counsel has submitted that the power of the court to grant anticipatory bail under Section 438 of the CrPC has been taken away by the provisions of Section 7(c) of the Act. Opposing this submission, Mr. Haris Beeran has argued that Section 7(c) of the Act provides no express prohibition on the exercise of the power of the court to grant anticipatory bail. ⁷[We note that the appellant’s counsel has placed reliance on the judgment and order of the Kerala High Court dated 3 August 2020 in the case of Nahas v. State of Kerala, B.A. No. 9163 of 2019 to support their submission.] This submission needs close scrutiny for the court to deduce as to whether the provisions of Section 7(c) would bar the grant of anticipatory bail under Section 438 of the CrPC.

7. Sections 3 and 4 of the Act provide as follows:

“3. Talaq to be void and illegal