Dr. Zaheed Hussain vs State Of Assam

Heard Mr. SK Muktar, learned counsel for the petitioner. Also heard Mrs. SH Borah, learned Additional Public Prosecutor, appearing for the State respondent assisted by Mr. AS Tapader, learned counsel for the informant.

This is an application, filed under Section 438 of the Cr.PC. seeking pre-arrest bail of the accused-petitioner, namely, Dr Zaheed Hussain, in connection with Bhangagarh Police Station Case No. 439/2021 registered under Section 498(A) of the IPC and Section 4 of Muslim Women (Protection of Rights on Marriage) Act, 2019.

The case diary has been produced before this Court.

The fact of the case, as appears from the FIR, is that the informant Mainajan Begum got married with the petitioner on 23.10.1997 as per Islamic rights and they have also parented a male and a female child, presently aged about 22 years and 14 years, respectively. The informant has also alleged that since after their marriage, the petitioner and his mother subjected her to physical and mental torture although she was bearing all these with a view to maintain their relationship. In the 1st part of December, 2020, the informant came to know that her husband/petitioner has been illegally living together with another lady at Goalpara, i.e., his place of posting. On 22.12.2020, when the petitioner came home as usual, he was asked about the fact of his living together with another lady at Goalpara and then her husband/petitioner denied such fact. During the stay at his house at Guwahati from 22.12.2020 to 25.12.2020, the petitioner was asked everyday as to the fact of his living together with another lady at Goalpara for which the petitioner got angry with her. On 26.12.2020 at night, when the petitioner was asked again about the aforesaid fact, there had taken place altercation between both of them and the informant was physically and mentally tortured by the petitioner and he also uttered three talaqs instantly and then in the next morning, the petitioner left the house while the informant was sleeping. The informant has also stated in the FIR that in the 1st week of January, 2021, she was informed by her mother-in-law Faijun Nessa Begum that her son has married another lady. The petitioner is a Doctor working in Goalpara Ambari Bazar Hospital as SDMO. It has also been alleged in the FIR that the petitioner has been living with another wife at Bhalukdubi Khankha village by constructing a house there in addition to his rented house at Goalpara.

The learned counsel for the petitioner, during the course of his argument denied the accusations made against the petitioner by the informant. He has specifically submitted that no offence, as alleged in the FIR, has been committed by the petitioner and that he has never pronounced talaq, as alleged, to his wife. It has further been submitted that in the event of arrest of the petitioner, on the basis of false allegation, his service career would be at stack.

Mr. Tapader, learned counsel for the informant has submitted through the learned Additional Public Prosecutor that in view of the provisions of Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019, the 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. Such pronouncement of talaq is also made punishable under Section 4 of the aforesaid Act for imprisonment for a term which may extend to three years, and shall also be liable to fine, and as such non-bailable.

According to the learned counsel for the informant, the pronouncement of instant talaq, as indicated in Section 3 of the Act, referred to above, being a non-bailable offence, as provided in Section 4 of the aforesaid Act, the petitioner should not be granted bail.

It has further been submitted on behalf of the prosecution that the petitioner has been subjecting the victim/informant to torture since after their marriage and on the date of occurrence also she was assaulted by the petitioner, thus, making himself liable for an offence under Section 498(A) of the IPC.

I have meticulously scanned the materials in the case diary.

The materials in the case diary show that one of the witnesses, who happens to be the sister of the victim/informant claims that she had seen the petitioner assaulting the informant/victim at the relevant time of occurrence and also heard pronouncing triple talaq instantly in presence of their son and daughter. There is no statement of the daughter available in the case diary although the son, who has been examined as witness, is heard saying categorically that he had seen his father/petitioner assaulting his mother at the relevant point of time. He denied having heard pronouncement of talaq by his father/petitioner.

The vital issue as emerged from the FIR, the statements made by the petitioner in his petition and also from the arguments of the respective learned counsel for both the parties transpires to be that the accusation in respect of pronouncement of instant triple talaq. The petitioner, in para 4 of his petition, has made a categorical statement that he did not pronounce talaq to his wife/informant, subject to further materials to be collected by the investigating agency, if any, the son of the petitioner and the informant has also subscribed to what the petitioner has stated in para 4 of his petition.

In the face of categorical denial of pronouncement of talaq by the petitioner as well as on the face of the diametrically opposite version of the sister of the informant as well as her son in respect of the statement in respect of pronouncing talaq, it does not appear to this Court that statement of any one of them inspires confidence of this Court at this stage of investigation.

In view of the above discussion, particularly on the face of denial that triple talaq was pronounced upon the victim/informant by the petitioner and in the absence of any inspiring materials collected till now, this Court is of the view that the petitioner deserved to be granted the privilege of pre-arrest bail. Therefore, granted.

The petitioner shall appear before the Investigating Police Officer within 7 (seven) days from today so as to enable the Investigating Police Officer to record his statement, and, in the event of his arrest, he shall be released on furnishing a bail bond of Rs. 25,000/- with a suitable surety of the like amount to the satisfaction of the arresting authority, on the conditions:-

The petitioner shall not leave the territorial jurisdiction of the aforesaid police station, without prior written permission from its officer-in-charge,

The petitioner shall not hamper with the investigation, or tamper with the evidence of the case, and

The petitioner shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.

The petition stands disposed of accordingly.

Return the case diary.