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 ruled that the Muslim Women (Protection of Rights on Marriage) Act, 2019 does not criminalize forms of talaq that are neither instantaneous nor irrevocable.
Justice Rakesh Kainthla observed that Muslim law recognizes multiple modes of talaq or divorce, with at least three distinct methods. Among these, only Talaq-ul-Biddat is characterized as being both instantaneous and irrevocable.
It is these instantaneous and irrevocable forms of talaq that have been prohibited 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.
The other forms of talaq include Talaq-e-Ahasan and Talaq-e-Hasan, where the divorce pronounced by the husband takes effect only after a specific period of time.
The Court was reviewing 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 was accused of demanding dowry and harassing his wife. On April 25, 2022, he allegedly sent her a written divorce notice, which was claimed to violate the 2019 Act.
The husband challenged the criminal case, arguing that his wife had left their home without informing anyone and didn’t respond to his calls or messages afterward.
Accordingly, the husband said, he was left with no other option but to send the first communication of talaq as per 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 stated that he had no other choice but to initiate the first communication of talaq under Talaq-e-Hasan.
“The first notice of Talaq is not immediate and can be revoked. The second notice, issued on May 25, 2022, is also revocable. The third pronouncement of Talaq was sent along with a ₹15,000 cheque as maintenance for the iddat period. This form of Talaq, approved by Prophet Mohammad, is recognized as valid by all schools of Muslim Law and has not been made illegal under 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 stated that, at first glance, the letter or communication sent by the husband does not appear to qualify as Talaq-e-Biddat, which is punishable under the 2019 law.
However, the Court also noted that the wife claimed her husband had already divorced her in January 2022 by pronouncing triple talaq. The Court added that the reason this was not mentioned in the FIR will need to be examined 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.