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2023 Supreme(Online)(CHH) 7872
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
Rakesh Mohan Pandey, J
Mohammed Husham – Appellant
Versus
State of Chhattisgarh – Respondent
MCRCA No.177 of 2023
For the Appellants/Petitioners: Uttam Pandey, Vikash Kumar Bajpai
For the Respondents: Sushil Sahu, Suresh Tandon
Anticipatory bail may be denied under Section 438 CrPC if the FIR and case diary establish a prima facie case of pronouncing triple talaq under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.
Headnote:The applicant sought anticipatory bail under Section 438 of the Code of Criminal Procedure, 1973, regarding an offence registered under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019. The prosecution alleged that after the complainant refused a divorce notice, the applicant pronounced talaq three times in the presence of witnesses, following allegations of cruelty and suspicion over her character. The primary issue focused on whether a prima facie case under Section 4 of the Act of 2019 was established to justify the denial of anticipatory bail. The court analyzed the FIR and case diary, noting the sequence of events leading to the pronouncement of triple talaq, which is punishable under the Act. Accordingly, the anticipatory bail application is rejected.
| Table of Content |
|---|
| 1. application for anticipatory bail following allegations of triple talaq under the act of 2019. (Para 1 , 2) |
| 2. competing arguments regarding the validity of talaq pronouncement and presence of witnesses. (Para 3 , 4) |
| 3. court's verification of prima facie evidence through fir and case diary. (Para 5 , 6) |
| 4. rejection of bail due to established prima facie case. (Para 7 , 8) |
Order on Board 16.02.2023
With the consent of the parties, the matter is heard finally at motion stage itself.
1. The applicant has preferred this application under Section 438 of Code of Criminal Procedure, 1973 for grant of anticipatory bail in connection with Crime No.19/2023 registered at Police Station Mahila Police Station Raipur, District Raipur (CG) for the commission of offence punishable under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 ( for short' the Act of 2019').
2. Case of the prosecution is that, the complainant lodged a report in Mahila Thana, Raipur on 21.01.2023 to the effect that present applicant had suspicion over her character and she was subjected to cruelty, therefore, she had left her matrimonial house from last 7 months. A notice of divorce was sent by the applicant to the complainant for dissolution of marriage ([kqyk rykd), which was refused by her and thereafter, in presence of witnesses, the present applicant pronounced talaq three times. On such complaint, Police registered offence punishable under Section 4 of the Act of 2019.
3. Learned counsel for the applicant would submit that he has never pronounced three times talaq to the complainant; he has filed an application for restitution of conjugal rights; a false case has been registered against him and a complaint was made by him before Mahila Police against complainant in prior time. He would further submit that there is no provision in the Section 4 of the Act of 2019 to pronounce three times talaq in presence of witnesses.
4. Learned counsel for the State and Objector would oppose the prayer for grant of anticipatory bail and they would submit that earlier notice was sent for dissolution of marriage ([kqyk rykd ) and talaq had pronounced three times in presence of the witnesses, therefore, a case punishable under Section 4 of the Act of 2019 is made out against the present applicant.
5. I have heard learned counsel for the parties and perused the case diary.
Section 4 of the Act of 2019 reads as under :
S.4. Punishment for pronouncing talaq – Any Muslim husband who pronounces talaq referred to in Section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.
6. From FIR and material available in the case diary, it appears that notice was sent by the present applicant for dissolution of marriage ([kqyk rykd), which was refused by the complainant. The applicant had suspicion over the character of the complainant and on 06.06.2022, the applicant pronounced three times talaq which is punishable under Section 4 of the Act of 2019.
7. Considering the fact that prima facie case is made out against the present applicant, I am not inclined to grant bail to the present applicant.
8. Accordingly, the anticipatory bail application is rejected.
The observation made in the course of this order or only for considering the case of the applicant. The concerned Trial Court shall not be influenced or bound by the observation made in the course of this order.
