03 January 2021

Court must give reasoning as to why it has accepted the contentions of one party and rejected those of other party

For the foregoing discussion, the finding of learned Commercial Court, Jammu that the said Court does not have territorial jurisdiction to entertain the instant petition under Section 9 of the Act filed by the appellant, does not deserve to be interfered with. However, the manner in which the Court below has passed the impugned judgment invites a comment. A perusal of the said judgment clearly shows that it is cryptic and devoid of any reason. The learned Court has only noted the pleadings and submissions of the parties and then without giving any reasoning as to why it has accepted the contentions of one party and rejected those of other party, it has drawn the conclusion against the petitioner.[Para No.28]

    Reasoning is the soul of a judgment. A judgment which is
Court must give reasoning as to why it has accepted the contentions of one party and rejected those of other party
devoid of reasoning would not be a judgment in accordance with the law.
It is not sufficient for a Court merely to state in its judgment that on a careful consideration of the rival submissions of the parties, it has come to this or that conclusion. The material on record on a particular point for and against the parties to the case must be set out in the judgment and reasons stated for its acceptance or rejection. A Court has not only to state the points for determination and the decisions thereon, but also to give reasons for such decisions. All this is missing in the judgment passed by the learned Commercial Court, Jammu. Such type of judgments are not expected from a senior Judicial Officer of the level of a District Judge.[Para No.29]

31 December 2020

Relatives of the Muslim husband cannot be accused of the offence of pronouncement of triple talaq; the offence can only be committed by a Muslim man

Sec. 7(c) of Muslim Women (Protection of Rights on Marriage) Act 2019 does not impose an absolute bar on granting regular or anticipatory bail



    Under Section 3, a pronouncement of talaq by a Muslim husband upon his wife has been rendered void and illegal. Under Section 4, a Muslim husband who pronounces talaq upon his wife, as referred to in Section 3, is punishable with imprisonment for a term, which may extend to three years. The prohibition in Sections 3 and 4 is evidently one which operates in relation to a Muslim husband alone. This is supported by the Statement of Objects and Reasons accompanying the Muslim Women (Protection of Rights on Marriage) Bill 2019, when it was introduced in the Parliament. The reasons for the introduction of the bill specifically stated that the bill was to give effect to the ruling of this court in Shayara Bano v. Union of India [(2017) 9 SCC 1], and to „liberate‟ Muslim women from the customary practice of talaq-e-biddat (divorce by triple talaq) by Muslim men. It is in this context that the provisions of Section 7 would have to be interpreted. Section 7 provides as follows:
“7. Offences to be cognizable, compoundable, etc: Notwithstanding anything contained in the Code of Criminal Procedure, 1973, -
(a) an offence punishable under this Act shall be cognizable, if information relating to the commission of the offence is given to an officer in charge of a police station by the married Muslim woman upon whom talaq is pronounced or any person related to her by blood or marriage;
(b) an offence punishable under this Act shall be compoundable, at the instance of the married Muslim woman upon whom talaq is pronounced with the permission of the Magistrate, on such terms and conditions as he may determine;
(c) no person accused of an offence punishable under this Act shall be released on bail unless the Magistrate, on an application filed by the accused and after hearing the married Muslim woman upon whom talaq is pronounced, is satisfied that there are reasonable grounds for granting bail to such person."

    The provisions of Section 7(c) apply to the Muslim husband. The offence which is created by Section 3 is on the pronouncement of a talaq by a Muslim husband upon his wife. Section 3 renders the pronouncement of talaq void and illegal. Section 4 makes the Act of the Muslim husband punishable with imprisonment. Thus, on a preliminary analysis,
Relatives of the Muslim husband cannot be accused of the offence of pronouncement of triple talaq the offence can only be committed by a Muslim man
it is clear that the appellant as the mother-in-law of the second respondent cannot be accused of the offence of pronouncement of triple talaq under the Act as the offence can only be committed by a Muslim man.[Para No.7]
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