The Court was hearing a petition seeking quashing of the FIR registered against a Muslim man under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.
The Himachal Pradesh High Court recently determined that the Muslim Women (Protection of Rights on Marriage) Act, 2019 does not criminalize forms of talaq that are not both instantaneous and irrevocable.
Justice Rakesh Kainthla pointed out that Muslim law allows for several modes of talaq or divorce, with at least three different methods. Among these, only Talaq-ul-Biddat is considered both instantaneous and irrevocable.
It is this specific form of talaq that has been banned by law.
“The legislature has only prohibited Talaq-e-Biddat or any other similar form of Talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband,” the Court said.
Other forms of talaq, such as Talaq-e-Ahasan and Talaq-e-Hasan, involve a divorce pronounced by the husband that only takes effect after a certain period.
The Court was considering a petition to dismiss an FIR filed against a Muslim man under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.
In this case, the husband faced accusations of demanding dowry and harassing his wife. On April 25, 2022, he allegedly sent her a written divorce notice, which was said to breach the 2019 Act.
The husband contested the criminal case, asserting that his wife had left their home without notifying anyone and had not responded to his calls or messages afterward. He claimed that, given the circumstances, he had no choice but to issue the first talaq communication under Talaq-e-Hasan.
“The first notice of Talaq is not instantaneous but is revocable. The second notice of Talaq was issued on 25.05.2022, which is again revocable. The third pronouncement of Talaq was sent along with the cheque of ₹15,000 as maintenance for the iddat period. This form of Talaq is approved by Prophet Mohammad and is valid according to all schools of Muslim Law. This Talaq has not been made illegal under the Act,” the Court was told.
The husband argued that he had no alternative but to issue the first talaq communication under Talaq-e-Hasan.
He explained, “The first notice of Talaq is not immediate and can be revoked. The second notice, given on May 25, 2022, is also revocable. The third talaq pronouncement was accompanied by a ₹15,000 cheque for maintenance during the iddat period. This form of Talaq, endorsed by Prophet Mohammad, is considered valid by all schools of Muslim Law and is not prohibited by the Act,” the Court was informed.
“It reads that the petitioner conveyed the first communication of Talaq as required by law by pronouncing the word ‘Talaq’. It nowhere mentions that the Talaq had become irrevocable or it had the effect of instantaneous divorce,” it said.
The Court observed that, at first glance, the letter or communication sent by the husband does not seem to fall under Talaq-e-Biddat, which is punishable under the 2019 law.
However, the Court also noted the wife’s claim that her husband had already divorced her in January 2022 by issuing triple talaq. The Court remarked that the reason for not mentioning this in the FIR will need to be investigated during the trial.
“It was submitted that this statement is incorrect as no such statement was made while recording the FIR. This submission will not help the petitioner. The truthfulness or otherwise of the investigation is not to be seen at this stage.”
Since the chargesheet had been filed, the Court noted that the competent court is now handling the case.
“Therefore, it is not possible to quash the FIR in the exercise of the extraordinary jurisdiction of this Court,” it said while rejecting the plea.
Senior Advocate MA Khan with advocates Hem Kanta Kaushal and Azmat Hayat Khan represented the petitioner.
Deputy Advocate General Ayushi Negi represented the State.
Advocates Imran Khan and Ketan Singh represented the informant.
