Bengaluru, September 1, 2023 – In a significant development, the XLV Addl. City Civil & Sessions Judge in Bengaluru City (CCH-46) has granted anticipatory bail under Section 438 of the Criminal Procedure Code (Cr.P.C.) to five individuals, including a husband and his family members, who were accused in a case involving alleged dowry harassment and the prohibited practice of instant triple talaq.
The order, issued by Judge Sri Manjunatha, addressed the petition (Crl.Misc.No.7946/2023) filed by the five petitioners, who were seeking protection from arrest in connection with Crime No. 166/2023 registered by the HAL Police Station (later referred to as Bandepalya P.S.).
The Charges
The petitioners, led by Abdul Azeez (Petitioner No. 1 and the husband of the complainant) and his four relatives, faced serious charges based on a complaint filed by his wife, Smt. Afreen Kausar.L.
The offences alleged against them included:
- Section 498A of the Indian Penal Code (IPC): Cruelty to a married woman by her husband or relatives.
- Sections 3 & 4 of the Dowry Prohibition (DP) Act: Giving or taking dowry.
- Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019: Pronouncement of instant triple talaq (which is illegal and void under the Act).
The complainant alleged that after her marriage on July 4, 2020, the accused subjected her to physical and mental cruelty, demanding additional dowry, and that Petitioner No. 1 eventually sent a triple talaq notice through an advocate on August 8, 2023, leading to the police complaint on August 9, 2023.
Court’s Rationale and Legal Precedent
The learned Judge allowed the petition, categorizing the dispute primarily as a matrimonial dispute. The court noted that the offences alleged are not punishable with death or imprisonment for life, and the offence under Section 498A IPC, though non-bailable, is exclusively triable by a Magistrate.
A key point of the judgment was the court’s interpretation of the Muslim Women (Protection of Rights on Marriage) Act, 2019. The court cited a Supreme Court ruling in Criminal Appeal No. 883 of 2020, emphasizing that:
“Parliament has not overridden the provisions of Section 438 of the Cr.P.C… There is no specific provision in Section 7(c), or elsewhere in the Act, making Section 438 inapplicable to an offence punishable under the Act.”
The Judge concluded that there was “absolutely no reason to deny benefit of anticipatory bail to the petitioners at this stage.” The Court further stated that since the petitioners are permanent residents, the prosecution’s fears of absconding or tampering with evidence could be addressed by imposing stringent conditions. The court also confirmed that it had complied with the procedural requirement of Section 7(c) of the Act by providing the complainant with an opportunity to file objections.
Conditions for Release
The five petitioners were granted bail upon their execution of a personal bond for ₹1,00,000/- each with one surety for a like sum. The bail is subject to immediate surrender and several strict conditions:
- The petitioners must surrender before the concerned Police within 30 days of the order date.
- Petitioner No. 1 (Abdul Azeez) must mark his attendance at the I.O.’s office once a month (on the first Sunday between 10:00 a.m. and 2:00 p.m.) until the final report is filed.
- The petitioners are prohibited from making any inducement, threat, or promise to witnesses.
- They must not hamper the investigation or intimidate the complainant.
- They are not permitted to leave the jurisdiction of Bangalore City without prior court permission.
The order also explicitly directed the concerned Magistrate to comply with Section 7 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 before formally granting bail after the petitioners’ surrender.