Syed Md. Moazzam Hussain @ Aftab @ Syed Moazzam Hussain @ Aftab v. The State of Bihar

Heard learned counsel for the petitioner, learned APP for the State as well as learned counsel for the complainant, who has suo motu appeared. The petitioner apprehends arrest in connection with Complaint Case No. 422 of 2012 in which cognizance has been taken under Sections 498A/506 of the Indian Penal Code. The petitioner, being the husband, is alleged to have demanded dowry and also tortured and physically assaulted the complainant. Learned counsel for the petitioner submits that the demand of dowry and other related allegations of torture and assault are not true. He submits that the complainant after living Patna High Court Cr.Misc. No.21888 of 2013 (4) dt.31-07-2013 in the matrimonial house only for a few days went back to the house of her parents and after that she has not been living with the petitioner. It is submitted that in fact the complainant was not physically capable of performing the duties of the wife and the marriage was never consummated. He submits that this forced him to divorce his wife, and in support of which a copy of ‘Talaq Nama’ has also been brought on record. Learned counsel submits that the said ‘Talaq Nama’ which was communicated to the complainant has also been found to be proper by the ‘Imarat-e- Shariah’, which is competent to give pronouncement with regard to issues concerning the ‘Islamic Shariat’. Learned counsel has filed a supplementary affidavit bringing on record information received under the Right to Information Act from the postal department which discloses that the ‘Talaq Nama’ sent to the complainant was actually received by the father of the complainant. It is thus submitted that once the complainant never lived in the matrimonial home, and the reason being that she was not capable to discharge her duty as wife, there is no occasion of any demand of dowry or assault or torture as there could not have been a relationship of husband and wife. Thus, according to him, the present case is only to exert undue pressure to somehow compel the petitioner to either keep the complainant or settle the Patna High Court Cr.Misc. No.21888 of 2013 (4) dt.31-07-2013 matter as per the desires of the complainant and her family. Learned APP for the State opposes the prayer for anticipatory bail and submits that there is specific allegation of torture, assault and demand of dowry against the petitioner, who is the husband. Learned counsel appearing for the complainant has filed a counter affidavit in which the ‘Talaq’ is contested for the reason that the same is based on a ground which is non est. He also relies upon the decision of the Hon’ble Supreme Court in the case of Shamim Ara vs. State of U.P., reported in AIR 2002 SC 3551 in which it has been held in paras 13 and 14 that under the Muslim law - ‘Talaq’ - Law as ordained by Holy Quran is (i) that ‘talaq’ must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other by the husband from his side - if their attempts fail, ‘talaq’ may be effected. In the present case is submitted that since conditions neither have been fulfilled nor even admitted to be complied with, the ‘Talaq Nama’ itself become a nullity. It is also submitted that the reason assigned for the ‘Talaq’ which is also mentioned in the ‘Talaq Nama’ has permanently damaged not only the prestige of the complainant but has also closed all her Patna High Court Cr.Misc. No.21888 of 2013 (4) dt.31-07-2013 future options towards any marriage inasmuch as the allegation is that she is physically unfit to perform the duties of a wife. It is submitted that the Court may take care to protect the prestige and interest of the complainant so that she has a chance to be assimilated in the system and also to get married in future. Upon considering the rival contentions, this Court is of the opinion that the petitioner may be granted indulgence subject to certain conditions. Accordingly, the petitioner in the event of arrest or surrender before the Court below within four weeks from today, be enlarged on provisional bail upon furnishing bail bonds of Rs. 10,000/-(ten thousand) with two sureties of the like amount each to the satisfaction of the Sub- Divisional Judicial Magistrate, Madhepura in Complaint Case No. 422 of 2012 subject to the conditions laid down in Section 438(2) of the Code of Criminal Procedure, 1973. The Court shall thereafter, get the complainant medically examined by a competent Board and depending on its results shall make all efforts to get the matter amicably settled. The Court shall keep in mind that any finding or allegation levelled may not hamper her chances of starting conjugal life afresh in future without being permanently prejudiced by the accusations Patna High Court Cr.Misc. No.21888 of 2013 (4) dt.31-07-2013 presently made by the petitioner on the basis of which the alleged ‘Talaq’ has been pronounced. The Court shall also make efforts to get the parties come to a reasonable settlement so that, if required, they may go their separate ways without indulging in uncalled for litigation. The interest of the complainant shall be kept in mind and any settlement would necessarily involve the protection of the interest of the complainant both in the eyes of the society as well as financially. It goes without saying that the settlement should be reasonable to both the sides. The Court, upon final settlement having been arrived, shall confirm the bail to the petitioner in the present case. Any lack of cooperation by either of the parties in completing the exercise as directed above, shall lead to adverse consequences for the party concerned and in the case of the petitioner, to cancellation of his bail. The application accordingly, stands disposed off in the aforementioned terms. (Ahsanuddin Amanullah, J) Prakash/-