[Triple Talaq] Legislature Has Prohibited Instantaneous & Irrevocable Divorce, Other Forms Of Talaq Still Valid: Himachal Pradesh High Court

The court ruled that the Act does not extend to other forms of divorce like Talaq-e-Hasan, which allows for revocation during the waiting period (Iddat).

The case involved a husband who was accused of violating the Muslim Women (Protection of Rights on Marriage) Act, 2019, by allegedly divorcing his wife through Triple Talaq. An FIR was filed based on the claim that the husband had issued an instantaneous and irrevocable divorce, which is prohibited under the law.

The petitioner sought the quashing of the FIR filed against him, arguing that he had followed the Talaq-e-Hasan procedure, which is not prohibited under the Muslim Women (Protection of Rights on Marriage) Act, 2019.

He contended that the FIR was unjustly registered since the divorce was neither instantaneous nor irrevocable, as required by the Act to constitute an offence.

Justice Rakesh Kainthla, delivering the judgment, observed, “The legislature has only prohibited Talaq-e-Biddat or any other similar form of Talaq having the effect of instantaneous and irrevocable divorce.”

He further noted that the petitioner had followed the Talaq-e-Hasan procedure, which involves multiple pronouncements over time, rather than a single instant divorce. Therefore, the form of divorce used by the petitioner does not fall within the scope of the Act's prohibition.

The court pointed out that this form of divorce is distinct from Talaq-e-Biddat, which was declared void and unconstitutional by the Supreme Court in the Shayara Bano v. Union of India case.

The Supreme Court had emphasized that instant triple talaq is “against the constitutional morality, dignity of women, and principles of gender equality.”

The court also cited the Kerala High Court's decision in Saheer v. State of Kerala, where it was reiterated that only instantaneous and irrevocable divorces, like Talaq-e-Biddat, are penalized under the Act.

The Kerala High Court had stated that “The pronouncement of Talaq-e-Sunnat, either by Hasan or Ahsan form, has not been made illegal.” Justice Kainthla concurred with this interpretation, emphasizing that the notice issued by the petitioner did not constitute an instantaneous or irrevocable divorce.

In evaluating the petition to quash the FIR, the court referred to established precedents on the exercise of jurisdiction under Section 482 of the Criminal Procedure Code (Cr.P.C.). The court underscored that quashing an FIR is justified only when the allegations, even if taken at face value, do not constitute an offence.

Justice Kainthla observed that the ongoing trial should be the appropriate forum for determining the truthfulness of the allegations.

Given the circumstances, the court declined to quash the FIR, stating that the matter should proceed through the trial process. The court highlighted the importance of adhering to the judicial process and refrained from making any conclusive remarks on the merits of the case, leaving it to the trial court to assess the evidence and decide accordingly.

Case Title: Shehwaz Khan State of H.P and Anr.

Citation: 2024 LiveLaw (HP) 45

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