Dr. B. Kalam Pasha v Sajani and State of Kerala

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 17[TH] DAY OF DECEMBER 2021 / 26TH AGRAHAYANA, 1943 ## CRL.MC NO. 1112 OF 2021 IN THE PROCEEDINGS IN C.M.P No. 1112/2019 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT - VIII, ERNAKULAM ## NAME AND ADDRESS OF THE PETITIONER/RESPONDENT DR. B.KALAM PASHA, AGED 57 YEARS, S/O LATE P.B. BATHISHA, RESIDING AT ‘HIDAYA’ FATHIMA CHURCH LANE, ELAMKULAM,ERNAKULAM-682 020. BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.P.U.VINOD KUMAR SMT.ARYA RAGHUNATH SMT.VAISAKHI V. SRI.T.M.MUHAMMED MUSTHAQ SRI.MOHAMED HISHAM P SRI.KARUKAPADATH WAZIM BABU ## NAME AND ADDRESS OF THE RESPONDENT/PETITIONER & STATE: 1 A.SAJANI, AGED 58 YEARS, W/O DR. B.KALAM PASHA, MAJNOOR, FFRA-49 MUNDAKKAL, KOLLAM, KERALA-681 001. 2 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. R1 BY ADV M.VANAJA THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25.11.2021 ALONGWITH CRL.M.C.NO.1137/20121, THE COURT ON 17.12.2021, PASSED THE FOLLOWING: Crl.M.C. Nos. 1112 & 1137 of 2021 -:2:- ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH FRIDAY, THE 17[TH] DAY OF DECEMBER 2021/26TH AGRAHAYANA, 1943 ``` ## `CRL.MC NO. 1137 OF 2021` ``` IN THE PROCEEDINGS IN C.M.P NO.1111/2019 OF JUDICIAL FIRST CLASS MAGISTRATE COURT - VIII, ERNAKULAM ``` ## `NAME AND ADDRESS OF THE PETITIONER/RESPONDENT:` ``` DR. B. KALAM PASHA, AGED 57 YEARS, S/O. LATE P.B BATHISHA, RESIDING AT ‘HIDAYA’, FATHIMA CHURCH LANE, ELAMKULAM, ERNAKULAM-682020 ``` ``` BY ADVS.SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SMT.P.U.VINODKUMAR SMT.ARYA RAGHUNATH SMT.VAISAKHI V SMT.T.M.MUHAMMED MUSTHAQ SMT.MOHAMED HISHAM P SMT.KARUKAPADATH WAZIM BABU ``` ## `NAME AND ADDRESS OF THE RESPONDENT/PETITIONER:` ``` 1SAJANI, AGED 58 YEARS, W/O. DR. B KALAM PASHA, MAJNOOR, FFRA-49, MUNDAKKAL, KOLLAM, KERALA 681 001 ``` - `2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031` ``` R1 BY ADV SMT.M.VANAJA ``` ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON ``` `25.11.2021` ALONGWITH CRL.M.C.NO.1112/20121, `THE COURT ON 17.12.2021 PASSED THE FOLLOWING:` Crl.M.C. Nos. 1112 & 1137 of 2021 ## -:3:- ## MARY JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - Crl.M.C. Nos. 1112 & 1137 of 2021 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17[th] day of December, 2021 ## O R D E R Crl.M.C. Nos. 1137/2021 and 1112 of 2021 respectively are filed by the respondent under Section 482 of the Code of Criminal Procedure (for short ‘Cr.P.C’) seeking to quash Crl.M.P.Nos.1111 and 1112/2019. The contentions raised by Sri.Babu Karukapadath, the learned counsel on behalf of the respondent are as follows : i. The petitions are filed by the petitioner without valid reason or jurisdiction. ii. The intention of the petitioner is only to tarnish the image of the respondent, who is a reputed judicial officer. iii. Crl.M.P. 1111/2019 does not disclose any offence at all. The Family Court, Ernakulam by judgment passed in O.P. No.675/2019 has declared the Talaq pronounced by the respondent on the petition as valid, proper and legal. iv. The appeal preferred by the 1[st] respondent as Mat. Appeal No.227/2021 against the judgment in O.P. No.675/2019, was dismissed by this Court by judgment dated 24.09.2021 and thereby the judgment of Family Crl.M.C. Nos. 1112 & 1137 of 2021 -:4:- Court, Ernakulam in O.P. No.675/2019 was confirmed. Thus, the marriage between the petitioner and the 1[st] respondent stands dissolved on the basis of the Talaq pronounced by the petitioner on 01.03.2017. v. During the pendency of O.P. No.675/2019 before the Family Court, Ernakulam that Crl.M.Ps 1112/2019 and 1111/2019 were filed by the petitioner before Judicial First Class Magistrate Court, Ernakulam and in view of the declaration of the Talaq pronounced as valid and legal by the Family Court, Ernakulam and confirmation of the same by the appellate court, the Talaq pronounced by the petitioner on the 1[st] respondent stands valid and legal and there is no scope for the allegations in Crl.M.P. No.1112/2019 to attract an offence under Section 494 IPC and the prosecution sought by the petitioner to lie against the respondent. vi. It is an admitted case that the Talaq was pronounced on 01.03.2017. The Muslim Women (Protection of Rights on Marriage) Act, 2019 was enacted by the Parliament and received the assent of the President of India on 31.07.2019. Therefore, a Talaq, if at all comes within the mischief of the offence as defined under the said Act, it cannot have application to the Talaq pronounced in the case on hand, since it was pronounced before the coming into force of the Crl.M.C. Nos. 1112 & 1137 of 2021 -:5:- enactment itself. Therefore, it cannot be contended that the respondent has committed an offence under the said Act, since Article 20(1) of the Constitution of India affords guarantee to every person against prosecution in a transaction which was not an offence by any of the provisions of an enactment existing then. Therefore, the prosecution proposed by the respondent to be initiated through Crl.M.P. No.1111/2019 is utterly violative of Article 20(1) of the Constitution of India. vii. The petitioner and the 1[st] respondent being members of the Muslim Community and governed by Muslim Personal Law, a muslim male is permitted to have more wives than one at a time and as such, the second marriage of a man during the lifetime of a wife living is not void and an offence of bigamy cannot be said to have been attracted against him under Section 494 IPC. Therefore, Crl.M.P. No.1112/2019 filed by the respondent seeking to prosecute the petitioner for an offence under Section 494 IPC is unlikely to culminate in success and is liable to be quashed. 2. It is contended by Smt.Vanaja Ramaswamy, the learned counsel for the respondent that the invocation of jurisdiction under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) to abort a criminal proceeding at its initial stage is Crl.M.C. Nos. 1112 & 1137 of 2021 -:6:- totally impermissible under the law and therefore the petitions are required to be decided by the court below in the usual course to reach its logical conclusion. 3. According to her, as per the Muslim law governing the parties, Talaq can only be pronounced for a reasonable cause and that too after sufficient attempts of reconciliation. According to her, a reasonable cause is not made out from the letter sent by the petitioner to the respondent and all the averments in the Talaqnama sent to the latter were specifically denied in the reply sent by her on 07.03.2017. According to her, conciliation efforts had never taken place as alleged in the Talaqnama. According to her, by the Talaqnama sent, the petitioner being a Judicial Officer only intended to marry secondly without violating the service rules governing him. 4. According to her, the Talaqnama sent to her was post dated and the contents having been known to the witnesses and attested by them, is totally incurable. The letter sent by the petitioner on 09.03.2017 correcting the date will not change the original situation as it was not attested by the witnesses. Crl.M.C. Nos. 1112 & 1137 of 2021 -:7:- According to her the Talaqnama therefore is void in the eye of law and therefore the second marriage, therefore is void and the latter is duty bound to treat both the wives alike and maintain them in equal terms as per Muslim Law. 5. Smt.Vanaja, the learned counsel has relied on Shamim Ara v. State of U.P. and Another (2002) 7 SCC 518) to contend that a talaq to be effective has to be pronounced. According to her, the correct law of talaq as claimed by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters – one from the wife’s family and the other, from the husband’s. If the attempts failed, Talaq may be effected. According to her, contentions of the above nature had been taken by the respondent before the family court while contesting O.P.No.675/2009 but, the Court passed the judgment declaring the Talaq pronounced as valid and legal without those being adverted to and meted out effectively. According to her, the appellate court also confirmed the judgment of the Family Court without delving on the contentions taken by the respondent and Crl.M.C. Nos. 1112 & 1137 of 2021 -:8:- she is desirous of preferring an appeal before the Apex Court by special leave. 6. According to Smt.Vanaja Ramaswamy, Apex Court has held in Kurshid Ahmad Khan v. State of U.P. and others [(2015) 8 SCC 439] that polygamy is not an integral part of the religion and monogamy as reform is within the power of State under Article 25 of the Constitution. 7. The validity of Rule 29(1) of U.P. Government Servants Conduct Rules, 1956 which provides that, contracting second marriage by a muslim during existence of his first marriage is violative of Article 25 of the Constitution, was questioned in the case supra and the Apex Court observed that Article 25 protects religious faith and not practice which may run counter to public order, health or morality and that polygamy is not an integral part of religion and monogamy as reform is within the power of State under Article 25 of the Constitution. It was held in the case that Rule 29(1) of the Rules, 1956 is not violative of Article 25 of the Constitution. On the basis of the above, it was contended that marrying for the second time by a muslim male Crl.M.C. Nos. 1112 & 1137 of 2021 -:9:- during the subsistence of his earlier marriage, with the spouse in that marriage alive and without obtaining permission from the Government tantamounts to commission of an offence of bigamy under Section 494 IPC. ## 8. In Shamim Ara v. State of U.P. and another [(2002) 7 SCC 518], after delving on the various aspects of Talaq, the Apex Court held: “Talaq, in order to be effective has to be pronounced. The term “pronounce” means to proclaim, to utter formally, to utter rhetorically, to declare, to utter, to articulate. There is no proof of talaq having taken place on 11.07.1987. A mere plea taken in the written statement of a divorce having been pronounced sometime in the past cannot by itself be treated as effectuating talaq on the date of delivery of the copy of the written statement to the wife. Respondent 2 ought to have adduced evidence and proved the pronouncement of talaq on 11.07.1987 and if he failed in proving the plea raised in the written statement, the plea ought to have been treated as failed. So also the affidavit dated 31.08.1988, filed in some previous judicial proceedings not inter partes, containing a self-serving statement of Respondent 2, could not have been read in evidence as relevant and of any value.” ## 9. The Apex Court in Shamim Ara supra has also referred to the correct law of Talaq as ordered by the Holy Quran which is extracted hereunder: Crl.M.C. Nos. 1112 & 1137 of 2021 -:10:- “that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters – one from the wife’s family and the other from the husband’s and if the attempt fails, talaq may be effected.” 10. The Talaqnama despatched by petitioner to respondent on 01.03.2017 is taken as served in O.P. No.675/2019 based on a postal receipt marked in evidence as Ext.B1(a). The Talaqnama marked in evidence in the above case as Ext.A2 reads : “Pronounced and signed by Dr.B.Kalam Pasha at Ernakulam on this the first day of March, 2018 in the presence of the witnesses mentioned hereunder.” 11. A letter dated 09.03.2017 was issued by the respondent to the petitioner, which is marked in evidence in the case as Ext.A4 rectifying the error occurred while mentioning the date of pronouncement of Talaq as 01.03.2017 instead of 01.03.2018, which according to the petitioner was only a typographical error. Crl.M.C. Nos. 1112 & 1137 of 2021 -:11:- 12. The respondent in the case on hand had taken a contention that to her utter shock and dismay she realised that she has been kicked out from the matrimonial society by the petitioner by pronouncing Talaq on 01.03.2017. It was contended that the Talaq is void and illegal as it has the force of triple Talaq which is declared as illegal and invalid by the Apex Court. Due despatch of Talaqnama on 01.03.2017 to respondent was proved by the petitioner through a postal receipt marked in the O.P. as Ext.B1(a). According to her, though the Talaqnama was despatched on 01.03.2017, date shown in the Talaqnama is 01.03.2018. According to her, soon after despatch of the Talaqnama, petitioner had issued a letter to her on 09.03.2017 rectifying the error occurred while mentioning the date in the Talaqnama as 01.03.2018 instead of 01.03.2017. The letter was marked in the O.P. as Ext.A4 and RW1 reiterated that the Talaq was pronounced upon her on 01.03.2017 in the presence of Dr.M.Abdul Samad and Dr.P.S. Mohammed Shafi as witnesses and requested her to read the date therein as 01.03.2017 instead of 01.03.2018 as it was only a typographical error. It was further Crl.M.C. Nos. 1112 & 1137 of 2021 -:12:- made clear in Ext.A4 that the Talaq was pronounced by him as per his free will and it was not on account of any extraneous influence. 13. It is indicated from the postal acknowledgement produced and marked in O.P. No.675/2019 as Ext.B1 that the Talaq pronounced was received by the respondent immediately and the acknowledgement card signed by her also reached the petitioner on 06.03.2017. 14. Respondent had raised objection to Ext.A2 by sending a reply on 09.03.2017, which is marked in the above O.P., as A3. Two letters were also sent by her to the petitioner on 16.03.2017 respectively requesting to take her back to the matrimonial home and claiming Rs.40,000/- towards monthly maintenance allowance. 15. It was averred in the O.P. by the respondent, against Ext.A2 that the date it originally bears having been sought to be changed by Ext.A4 and having not been attested by the witnesses who attested Ext.A2, cannot be considered as valid and legal. It was contended by the respondent that the word Crl.M.C. Nos. 1112 & 1137 of 2021 -:13:- irrevocably appeared in Ext.A2 gives a severe and fatal impact to the pronouncement of Talaq, with all features of Triple Talaq. 16. The validity of Ext.A2 being challenged by respondent in specific terms it is relevant to have a consideration of it and therefore is extracted hereunder : “Pronounced and signed by Dr.B.Kalam Pasha at Ernakulam on this the first day of March, 2018 in the presence of the witnesses mentioned hereunder.” “Therefore in the presence of witnesses mentioned below, I do hereby Talaq thee irrevocably.” It is convincingly clear from a perusal of Ext.A4 letter sent to the petitioner in clarification that attestors to Ext.A2 had not affixed their signatures for the correction of the date sought. But the Family Court delved on the issues and held in the O.P. in the following manner : “In no probability a document dated 01.03.2018 could have reached the addressee in the month of March 2017. So it stood rightly demonstrated that the date in Ext.A2 happened to be shown as 01.03.2018 only by an inadvertent typographical error and nothing else. This finding gets more strengthened from the very factum of issuance of Ext.A3 by petitioner to Crl.M.C. Nos. 1112 & 1137 of 2021 ## -:14:- respondent dated 07.03.2017 wherein she has candidly admitted that she was already in receipt of Ext.A2 Talaqnama. Of course, she has referred to Ext.A2 as the one dated 01.03.2018 as it appeared in the document in Ext.A3 letter of her own. In Ext.A3 respondent had requested the petitioner to withdraw the Talaqnama and to make him mentally prepared to resume cohabitation with her. It is in fact as a response to Ext.A3 letter hat RW1 has sent Ext.A4 reply on 09.03.2017. Ext.B2 is another letter written by her to him on 16.03.2017 requesting him to take her back. Ext.B3 is also a letter sent by her claiming Rs.40,000/- per month from him as maintenance allowance to meet her day-to-day expenses. Exts.B4 and B5 are two pay-in-slips dated 26.04.2016 and 03.08.2016 generated in the name of PW1’s mother by RW1. Referring to all the above correspondences between PW1 and RW1 and the self speaking attending circumstances, I conclude that pronouncement of Talaq by RW1 upon PW1 was exactly on 01.03.2017 and not on 01.03.2018 as it happened to be erroneously crept in Ext.A2 Talaqnama.” 17. It is found from the extract above that the Family Court failed to advert to the contention of the petitioner that Ext.A4 clarification letter was not attested by the witnesses who stood attestors of Ext.A2. The Family Court ought to have viewed the contention of the petitioner against the validity of Ext.A2 seriously and ought not to have viewed it as a typographical Crl.M.C. Nos. 1112 & 1137 of 2021 -:15:- error. However, those aspects being immaterial for consideration in the case on hand, are not dealt with further. 18. Yet another contention raised by the petitioner for consideration was that pleadings raised in the complaints in question are not sufficient and satisfactory to attract the offences alleged. In Crl.M.P. No.1112/2019 the offence alleged against the petitioner was one punishable under Section 494 of the Indian Penal Code (for short ‘IPC’). ## Section 494 IPC is extracted hereunder: “ 494. Marrying again during lifetime of husband or wife .— Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. (Exception) —This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction, nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted Crl.M.C. Nos. 1112 & 1137 of 2021 **==> picture [27 x 9] intentionally omitted <==** of the real state of facts so far as the same are within his or her knowledge.” Marrying again during the lifetime of husband or wife is made an offence under the above provision. Therefore, if one contracts a second marriage during the life of wife/husband in the earlier marriage, he/she will be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable for fine. As an exception to the above, it was provided thereunder that the Section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction. 19. Therefore, for attraction of the offence it is crucial that the secondly contracted marriage must be void. When viewed in the backdrop of the factual matrix of the case on hand, admittedly the parties are Muslims and are governed by their personal law. The averments of the respondent in Crl.M.P. No.1112/2019 was that the petitioner having solemnised a subsequent marriage on 25.02.2018, during the subsistence of his first marriage is liable to be prosecuted under Section 494 IPC. There is no dispute with regard to the fact that the Crl.M.C. Nos. 1112 & 1137 of 2021 -:17:- averments are modulated by the respondent in such a manner in the complaints in question that the offences alleged therein appears prima facie attracted. But, the parties being Muslims the personal law governing them permits a muslim male to contract more marriages than one, with a limit of four wives at a time. Therefore, the personal law of the parties do not prohibit a Muslim male to marry further during the lifetime of his wife in the first marriage. In order to attract an offence of bigamy, the marriage contracted subsequently shall be void. It has been held by the Apex Court in Dr.Surajmani Stella Kujur v. Durga Charan Hansdah [AIR 2001 SC 938] that the subsequent marriage being void is sine qua non for constituting an offence of bigamy. Therefore, a wife who is attempting to prosecute her husband must establish that the subsequent marriage contracted by the latter during her lifetime is void. 20. Then the question comes for consideration is, if the prosecution sought to be initiated by the respondent against the petitioner is let to proceed with, the former would succeed in establishing it. Crl.M.C. Nos. 1112 & 1137 of 2021 -:18:- 21. As already discussed above, it stands held by Family Court, Ernakulam in O.P. No.675/2019 that the Talaq pronounced by the petitioner on 01.03.2017 is valid and therefore the marriage with the respondent is dissolved. The judgment of the Family Court stands confirmed by the judgment passed by a Division Bench of this Court in Mat. Appeal No.227/2021. Therefore, as the position stands now, the parties are not husband and wife. Or in otherwords, the second marriage contracted by the petitioner on 25.02.2018 in no circumstances will be void as the respondent, in view of the dissolution of her marriage with the petitioner is no longer his wife. 22. As per the Muslim Personal Law, the petitioner is entitled to maintain four wives at a time. The constitutionality of polygamy in Muslim Personal Law is considered by a Constitution Bench of the Apex Court in Ahmedabad Women Action Group (AWAG) and others etc v. Union of India [(1997) 3 SCC 572 = AIR 1997 SC 3614]. The Apex Court in State of Bombay v. Crl.M.C. Nos. 1112 & 1137 of 2021 -:19:- Narasu Appa Mali, when validity of Hindu Bigamous Marriage Act, 1946 was questioned, has also held : “There can be no doubt that, Muslims have been excluded from the operation of the Act in question. Even Section 494 Penal Code, which makes bigamy an offence applies to Parsis, Christians and others, but not to Muslims, because polygamy is recognized as a valid institution when a Muslim male marries more than one wife.” (Emphasis supplied). Therefore, when a Muslim male is sought to be prosecuted for an offence under Section 494 IPC, it has to be established that his fifth marriage was contracted during the lifetime of his four wives in the earlier marriages or else that four wives of him are living at the relevant time when he contracts the fifth marriage. 23. Therefore, it is pertinent to note whether the prosecution sought to be initiated against the petitioner by the respondent would culminate in her success or whether it would be defeated on account of the Personal Law governing the petitioner to have more wives (maximum four) at a time. Therefore, evenif the petitioner is let to face the trial in the prosecution, in the situation stands as on date, the respondent Crl.M.C. Nos. 1112 & 1137 of 2021 -:20:- not being the wife of the petitioner, will not succeed in establishing the offence. The prosecution would only be a waste exercise, consuming valuable time of Court and money of the exchequer. 24. Therefore, for the reason that the personal law permits a Muslim male to contract more than one marriage (four at a time) and the declaration of the Talaq as valid and dissolution of marriage of the petitioner and the respondent, the prosecution if allowed to proceed, could not in any eventuality be a successful one. 25. Crl.M.P. No.1111/2019 was filed by the respondent to prosecute the petitioner under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019(2 of 2019) (for short ‘the Act, 2019’). It was alleged by the respondent in the above complaint that Triple Talaq is made invalid by the provisions of the Act, 2019 and therefore, the petitioner is liable to be prosecuted for violation of the provisions and punished. 26. It is pertinent to note that the Act was enacted by the Parliament and the assent of the President of India was received Crl.M.C. Nos. 1112 & 1137 of 2021 -:21:- on 31.07.2019. As per the allegations, Talaq was pronounced by the petitioner on 01.03.2017. The Talaq stands declared as valid successively by competent courts. Article 20(1) of the Constitution provides that one shall not be prosecuted for a transaction, which was not recognised as an offence at the time of its commission. 27. The Act, 2019 introducing pronouncement of triple talaq as an offence having been received the assent of the President only later to pronouncement of talaq in the year 2017, the offence alleged in the complaint will not be attracted. 28. Clause (1) of Article 20 of the Constitution of India guarantees to its citizens protection from being prosecuted as an accused, for involvement in a transaction, which was not made an offence by any enactments that has not come into force at the relevant time. Article 20 of the Constitution of India reads “20. Protection in respect of conviction for offences (1) No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than Crl.M.C. Nos. 1112 & 1137 of 2021 -:22:- that which might have been inflicted under the law in force at the time of the commission of the offence (2) No person shall be prosecuted and punished for the same offence more than once (3) No person accused of any offence shall be compelled to be a witness against himself.” 29. True that the Act, 2019 was enacted by Parliament in the Thirty Seventh year of the Republic of India. It was enacted to protect the rights of married Muslim Women and to prohibit divorce by pronouncing Talaq by their husbands and to provide for matters connected therewith or incidental thereto. ## The statement of objects and reasons reads : “The Supreme Court in the matter of Shayara Bano v. Union of India and Others and other connected matters, on the 22[nd] 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.” 30. The petitioner in Shayara Bano’s case challenged, inter alia, talaq-e-biddat on the ground that it is discriminatory and against the dignity of women. The Supreme Court set aside Crl.M.C. Nos. 1112 & 1137 of 2021 -:23:- Talaq ~~-e~~ -biddat, but there have been reports of divorce by way of Talaq ~~-e~~ -biddat from different parts of the country. Therefore, with a view to protect the rights of married Muslim Women who are being divorced by triple talaq, a Bill namely the Muslim Women (Protection of Rights on Marriage) Bill , 2017 was introduced. 31. The Bill proposed to declare the practice of triple talaq as void and illegal and made it an offence punishable with imprisonment upto three years and fine and triable by a Judicial Magistrate of First Class. The Bill also provided to treat the offence, cognizable and non-bailable. 32. Ultimately with a view to put a curb on pronouncement of triple talaq by Muslim men to Muslim wife and with a view to keep her away from the matrimony and to dissolve the marriage, the Act having application to the whole of India except the State of Jammu and Kashmir was enacted, which deemed to have come into force on the 19[th] day of September, 2018. 33. The respondent in the proceedings on hand filed Crl.M.P. No.1112/19 with a view to prosecute the petitioner for an offence Crl.M.C. Nos. 1112 & 1137 of 2021 -:24:- under Section 3 of the Act, 2019 liable to be punished under Section 4 of the Act, 2019. Sections 3 and 4 read : “3. Talaq to be void and illegal :- 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. 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.” 34. It was alleged by the respondent in Crl.M.P. No.1112/19 filed before the court below seeking to launch the prosecution against the petitioner that the talaq pronounced by the petitioner on the respondent in whatever manner stated therein shall be void and illegal and her husband having pronounced the same on her is liable to be prosecuted under Section 3 and punished under Section 4 of the Act, 2019. 35. But, the Act, 2019 having come into force only on 19.09.2018, it cannot be said to have any impact retrospectively on the Talaq pronounced on 01.03.2017. The Talaq pronounced Crl.M.C. Nos. 1112 & 1137 of 2021 -:25:- by the petitioner on the respondent being in the year 2017, prior to the enactment making it an offence under Section 3 liable to be punished under Section 4, will not constitute an offence in view of the protection afforded by Article 20(1) to safeguard the interest of the person responsible for it. The Act, 2019 having been enacted only with effect from 19.09.2018, a talaq pronounced in the year 2017, sufficiently earlier in point of time, to any stretch of imagination, will not constitute an offence and a complaint to prosecute the petitioner for the same, is only liable to fail. 36. In view of the safeguard provided under Article 20(1) of the Constitution of India, enactments constituting new offences cannot have retrospective operations. A person can be prosecuted only if the offence allegedly committed by him or for which he was chargesheeted is recognized as an offence at the relevant time of its commission. In the case on hand the Legislation constituting pronouncement of triple talaq as void and illegal and providing punishment for that having been enacted and came into force only with effect from 2018, the Crl.M.C. Nos. 1112 & 1137 of 2021 -:26:- pronouncement of talaq by the petitioner being prior to the enactment constituting it an offence, the prosecution initiated by the respondent by filing Crl.M.P. No.1112/19 will never be a worthy exercise and it is unlikely to yield the desired result of finding the petitioner guilty and convicting and sentencing him. With whatever evidence adduced by the respondent, the prosecution will not be a successful one, the alleged act for which the petitioner is sought to be prosecuted was not given the colour of an offence or recognised as an offence at the relevant time it was committed. This has been mooted for consideration of the Apex Court in Soni Devrajbhai Babubhai v. State of Gujarat [(1991) 4 SCC 298]. The question raised there was whether a person can be prosecuted for an offence under Section 304-B of the Indian Penal Code (for short ‘IPC’), when the act alleged was committed much prior to incorporation of it as an offence in the IPC on 19.11.1986. The Apex Court held in strong terms that protection guaranteed under Article 20(1) is a complete answer to the question and therefore, the person arraigned as an Crl.M.C. Nos. 1112 & 1137 of 2021 -:27:- accused for commission of offence cannot be prosecuted for it, when that was not even made an offence then by the Legislature. 37. Therefore, undoubtedly, letting the petitioner to face trial in a prosecution of the nature will only be an exercise in vain. Or in otherwords it would be a mere exercise for the sake of prosecuting the petitioner, unduly consuming the valuable time of courts and imposing expenditure to the Exchequer. 38. Now it is time to delve on the question raised by the respondent in the petitions on hand that jurisdiction under Section 482 Cr.P.C cannot be invoked to quash criminal prosecutions of the nature at the very inception of those. 39. According to the respondent, the complaints filed by her to prosecute the petitioner are not abuse of process of court as alleged by the petitioner in the petitions on hand. Therefore, it was canvassed by her vehemently that the jurisdiction under Section 482 Cr.P.C cannot be allowed to be invoked to turn a criminal proceeding upside down at its very stage of inception itself. According to her, the complaints should be let for Crl.M.C. Nos. 1112 & 1137 of 2021 -:28:- prosecution by the court now seized of it and throwing it aside at the preliminary stage is an abuse of process of law. 40. On the contrary the attempt of the petitioner was to convince the court that the prosecutions sought to be launched being a fruitless exercise, it is not abuse of process of the court to invoke the jurisdiction under Section 482 Cr.P.C to quash it at the stage of inception itself. According to him, the very intention of the respondent behind filing of the complaints being to harass him in his profession as a senior serving judicial officer of the Higher Judicial Service in the State, the attempt has to be cut at the budding stage itself. In this connection, R.P. Kapur v. State of Punjab [AIR 1960 SC 866], State of Haryana and others v. Ch.Bhajanlal and others [AIR 1992 SC 604], Prof. R.K. Vijayasarathy and another v. Sudha Seetharam and another [(2019) 16 SCC 739] and Indian Oil Corporation v. NEPC (India) Ltd [(2006) 6 SCC 736], relied on by the learned counsel for the petitioner being relevant in the context are taken in aid to settle the controversy at rest. Crl.M.C. Nos. 1112 & 1137 of 2021 -:29:- 41. In R.P. Kapur (supra), the Apex Court has made a list of cases wherein inherent jurisdiction under Section 482 Cr.P.C could be invoked and takes within its purview FIR or complaint. It was held that evenif the FIR or the complaint taken at its face value and accepted in its entirety, do not constitute the offences allegedly committed, jurisdiction under Section 482 can and should be exercised to quash it. 42. The Apex Court in State of Haryana (supra) has held that the power under Article 226 of the Constitution of India or under Section 482 Cr.P.C could be exercised to quash complaints and criminal proceedings before a criminal court. The category of cases wherein the above jurisdiction could be exercised, is also enumerated. 43. In Prof. R.K. Vijayasarathy (supra), Supreme Court held as follows : “(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any office or make out the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry Crl.M.C. Nos. 1112 & 1137 of 2021 -:30:- nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.” ## Three Judges Bench of the Apex Court reiterated in State of Karnataka v. L.Muniswamy and others [AIR 1977 SC 1489] : “7. xx xx xx In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, Crl.M.C. Nos. 1112 & 1137 of 2021 **==> picture [27 x 9] intentionally omitted <==** the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. ……...” 44. The above dictums are sufficient to defeat the argument advanced by the respondent and her counsel that inherent jurisdiction under Section 482 Cr.P.C cannot be exercised to quash a complaint incorporating allegations sufficient to attract the offences in respect of which prosecution is sought. In the complaints on hand, the allegations raised by the respondent, from the very face of it, undoubtedly are sufficient to attract the offences. But, in view of the relevant aspects discussed hereinabove, it is unlikely for the allegations to culminate in a result intended by the prosecution proposed to be launched by the respondent by filing the comlaints. In view of the personal law governing the parties and Article 20(1) of the Constitution of India which affords protection to the petitioner against prosecution for a transaction which was made an offence much later to its commission, the prosecution if proceeded with further, will not reach in his conviction. The prosecution therefore, is only an abuse of process of court. Interest of justice demands Crl.M.C. Nos. 1112 & 1137 of 2021 -:32:- termination of the prosecution at its very inception itself and this Court do so. In the result, both petitions on hand are allowed. Crl.M.P. Nos.1111/19 and 1112/19 are quashed forthwith. Sd/- MARY JOSEPH, JUDGE. ttb Crl.M.C. Nos. 1112 & 1137 of 2021 -:33:- ## `APPENDIX OF CRL.MC 1112/2021` ## `PETITIONER’S ANNEXURES:` - `ANNEXURE A1` ``` A TRUE COPY OF THE PETITION IN OP NO 675/2019 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM ``` - `ANNEXURE A2 A TRUE COPY OF THE COMMON JUDGMENT DATED 15.2.2021 IN OP NO 675/2019 AND OP NO 2662/2019 OF THE HON'BLE FAMILY COURT, ERNAKULAM` - `ANNEXURE A3 A TRUE CERTIFIED COPY OF THE COMPLAINT FILED BY THE RESPONDENT UNDER SECTION 494 OF INDIAN PENAL CODE AND NUMBERED AS C.M.P NO 1112/2019 ON THE FILE OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-VIII, ERNAKULAM.` - `ANNEXURE A4 A TRUE COPY OF THE COMPLAINT FILED BY THE RESPONDENT UNDER SECTION 3, 4 AND 7 OF THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019 AND NUMBERED AS C.M.P NO. 1111/2019 ON THE FILE OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-VIII, ERNAKULAM` - `ANNEXURE A5 A TRUE COPY OF THE COMMON JUDGMENT DATED 24.09.2021 IN MAT.APPEAL NO.223 OF 2021 AND MAT.APPEAL NO.227 OF 2021 OF THE HON'BLE HIGH COURT OF KERALA.` ``` RESPONDENTS’ ANNEXURES: NIL ``` Crl.M.C. Nos. 1112 & 1137 of 2021 -:34:- ## `APPENDIX OF CRL.MC 1137/2021` ## `PETITIONER’S ANNEXURES :` - `ANNEXURE A1 A TRUE COPY OF THE PETITION IN O.P NO. 675/2019 ON THE FILE OF THE HON'BLE FAMILY COURT, ERNAKULAM` - `ANNEXURE A2 A TRUE COPY OF THE COMMON JUDGMENT DATED 15-02-2021 IN O.P NO. 675/2019 AND O.P NO. 2662/2019 OF THE HON'BLE FAMILY COURT, ERNAKULAM` - `ANNEXURE A3 SECTION 3,4 AND 7 OF THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019 AND NUMBERED AS CMP NO. 1111/2019 ON THE FILE OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-VIII, ERNAKULAM WITH PHOTOCOPY` - `ANNEXURE A4 A TRUE COPY OF THE COMPLAINT FILED BY THE RESPONDENT UNDER SECTION 494 OF INDIAN PENAL CODE, 1860 AND NUMBERED AS C M P NO. 1112/2019 ON THE FILE OF THE HON'BLE JUDICIAL FIRST CLASS MAGISTRATE COURT-VIII ERNAKULAM` - `ANNEXURE A5 A TRUE COPY OF THE COMMON JUDGMENT DATED 24.09.2021 IN MAT. APPEAL NO.223 OF 2021 AND MAT APPEAL NO.227 OF 2021 FILED BY THE 1ST RESPONDENT AGAINST THE PETITIONER BEFORE THE HON'BLE COURT OF KERALA` RESPONDENTS’ ANNEXURES: NIL