Mumbai: The Aurangabad bench of the Bombay High Court, while quashing a case lodged against a Muslim man and his parents on a complaint lodged by his wife, said that only Talaq-e-bidat (instantaneous and irrevocable triple talaq) is prohibited and not Talaq-e-Ahsan (traditional method of divorce).
A bench comprising Justice Vibha Kankanwadi and Justice Sanjay Deshmukh, while quashing the case against the applicant man and his parents on his wife’s complaint in Jalgaon, Maharashtra under section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 for allegedly pronouncing an ‘irrevocable’ divorce (Talaq-e-biddat) to the complainant wife, said the definition of divorce under the said Act only includes those forms of talaq which have an effect of instantaneous or irrevocable divorce.
What did the High Court say?
“Talaq means Talaq-e-biddat or any other form of talaq, which is having instantaneous effect or irrevocable effect of the pronouncement. All other forms of Talaq were not prohibited or barred,” the division bench said while referring to the provisions of the 2019 Act.
What did the man argue?
The counsel representing the man submitted that the couple got married as per Muslim rites and customs on October 31, 2021 at Bhusawal, Jalgaon and differences arose between them and the man was constrained to pronounce a single divorce i.e. Talaq-e-Ahsan on December 23, 2023 in presence of witnesses and thereafter, he had sent a notice of talaq by registered post. The counsel further said that thereafter, there was no cohabitation or joining of the husband and wife for 90 days and, therefore, as per Muslim customs and Shariyat Law, it became irrevocable and ultimately, there is a talaq between them. This mode of talaq is not punishable under section 4 of the Act and, therefore, the FIR in question and the proceedings is an abuse of process of law, which needs to be quashed and set aside, the counsel argued.
What did the High Court note?
The High Court noted that in the FIR itself, the wife has stated that the notice which her husband had given had stated that what was given to her was Talaq-e-Ahsan (one pronouncement of talaq) and even the statements of witnesses are on the same line. It further noted that in the charge-sheet itself, the copy of the said notice has been given wherein it is written that he was pronouncing one pronouncement of talaq (Talaq-e-Ahsan) as per Shariyat and the final talaqnama has been given on March 24, 2024, wherein it was mentioned that after December 23, 2023 within 90 days, neither the wife had resumed cohabitation and there was no resumption of physical relations between them.
Would be an abuse of process of law if husband and his parents are asked to face trial: High Court
“The legal effect of Talaq-e-Ahsan has come into play. When the facts are admitted and taking into consideration the law, what was prohibited was the Talaq-e-bidat and not Talaq-e-Ahsan, it would be an abuse of process of law, if the applicants (husband and his parents) are asked to face the trial and therefore, case is made out for quashment of the FIR and the proceedings,” the High Court said while quashing the case.
