IMPORTANT POINTS
Arrest and detention of the accused without warrant by the police is not contemplated in Section 7(c) of the Act, 2019 for consideration of the Bail Application. Similarly arrest and production of the accused before the Magistrate are also not contemplated in Section 7(c) of the Act, 2019. As far as consideration of Bail Application under the Act, 2019 is concerned, Section 7(c) is a complete code. There is no insistence for the appearance of the accused for the consideration of a Bail Application in Section 7(c).

ORDER :

The above Bail Application is filed by the accused in Crime No.1303 of 2019 of Fort Kochi Police Station under Section 438 of the Code of Criminal Procedure (Cr.P.C.). This case is registered against the petitioner alleging offence punishable under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 (For short, the Act, 2019).

2. The prosecution case is that the defacto complainant married the petitioner on 3.5.2015 as per religious rituals, and they were living as husband and wife. Subsequently, the petitioner with an intention to end the marital relationship with the defacto complainant sent a registered letter on 4.11.2019, pronouncing triple talaq to the complainant. Hence it is alleged that the petitioner committed the offence under Section 4 of the Act, 2019.

3. When this Bail Application came up for consideration, through Video Conference, this court informed the counsel for the petitioner that, when there is a specific provision regarding grant of bail in the Act 2019, it is always better for the petitioner to approach the Magistrate Court concerned under Section 7 (c) of the Act, 2019 before filing an application under Section 438 Cr.P.C. But, the counsel submitted that if the petitioner files a Bail Application before the Magistrate Court under Section 7(c), there is every chance to remand the petitioner by the learned Magistrate because the learned Magistrate can consider the Bail Application only after issuing notice to the defacto complainant. Therefore, the counsel submitted that the petitioner would be in remand till Bail Application is considered by the learned Magistrate under Section 7(c) of the Act, 2019. The counsel also submitted that it would be an injustice to the petitioner, if he is remanded by the learned Magistrate before considering the Bail Application on merit under Section 7(c) of the Act, 2019. Therefore, the counsel submitted that an application under Section 438 Cr.P.C. is the only remedy to the petitioner.

4. The learned Public Prosecutor submitted that the petitioner could approach the Magistrate under Section 7(c) of the Act, 2019, and this court need not exercise the extraordinary jurisdiction under Section 438 Cr.P.C.

5. Therefore, the question to be decided is whether an accused involved in an offence under the Act, 2019 can file a petition under Section 438 Cr.P.C. without filing a Bail Application under Section 7(c) of the Act, 2019 before the Magistrate court concerned.

6. The Act, 2019 received the assent of the President of India on 31.7.2019. The statement of objects and reasons of the Muslim Women (Protection of Rights on Marriage) Bill, 2019 is relevant while considering the provisions in the Act, 2019. The statement of objects and reasons of the Bill is extracted hereunder :

“The Supreme Court in the matter of Shayara Bano Vs. Union of India and others and other connected matters, on the 22nd August, 2017, in a majority judgment of 3:2, set aside the practice of talaq-e-biddat (three pronouncements of talaq, at one and the same time) practiced by certain Muslim husbands to divorce their wives. This judgment gave a boost to liberate Indian Muslim women from the age-old practice of capricious and whimsical method of divorce, by some Muslim men, leaving no room for reconciliation.

2. The petitioner in the above said case challenged, inter alia, talaq-e-biddat on the ground that the said practice is discriminatory and against dignity of women. The judgment vindicated the position taken by the Government that talaq-e-biddat is against constitutional morality, dignity of women and the principles of gender equality, as also against gender equity guaranteed under the Constitution. The All India Muslim Personal Law Board (AIMPLB), which was the 7th respondent in the above case, in their affidavit, inter alia, contended that it was not for the judiciary to decide matters of religious practices such as talaq-e-biddat, but for the legislature to make any law on the sa