Talaq-E-Hasan And Talaq-E-Ahsan Valid: Kerala High Court Quashes Criminal Proceedings Against Muslim Husband As Talaq Not Instantaneous

Interpreting the law on triple talaq, the Kerala High Court recently quashed criminal proceedings against a Muslim husband on finding that he pronounced talaq-e-hasan which was legal and valid under Muslim Personal Law.

“The copies of the talaq kuries would show that several mediations took place. It is further revealed that respondent No.3 did not co-operate for a Court Centred Mediation also...The materials placed before the Court would reveal that a series of mediations to reconcile the disputes between the parties failed. There are no indications that the talaq pronounced by the petitioner was instantaneous or irrevocable. The resultant conclusion is that the talaq pronounced by the petitioner is not talaq-e-biddat prohibited under Section 4 of the Act.”

Relying upon the landmark decision of the Apex Court in Shayara Bano v. Union of India (2017), Justice K. Babu observed that talaq-e-biddat or other similar forms of instant talaq were void and unconstitutional and not talaq-e-hasan or talaq-e-ahsan.

“The judgment gave a boost to liberate Indian Muslim Women from the age-old practice of capricious and whimsical method of divorce by Muslim men, leaving no room for reconciliation. The judgment in Shayara Bano vindicated the position that talaq-e-biddat is against the constitutional morality, dignity of women and principles of gender equality and also against the gender equity guaranteed under the Constitution.”

The petitioner-accused had approached the court for quashing of criminal proceedings initiated against him under Sections 498A/34 of IPC and Sections 3/4 of the Muslim Women Act, 2019.

According to Section 3 of the Act, pronouncement of talaq by a Muslim husband upon his wife is void and illegal. Under Section 4, a Muslim husband who pronounces talaq upon his wife under Section 3, is punishable with imprisonment for a term extending up to three years and fine.

"Talaq that has been made punishable under the Act means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband".

The petitioner's counsel produced talaq kuries to submit that the same could not be interpreted as talaq-e-biddat. It was contended that the talaq pronounced was talaq-e-hasan.

On the other hand, the complainant's counsel argued that talaq pronounced was instantaneous, irrevocable and had to be interpreted as Talaq-e-Biddat.

The court noted that pursuant to Shayara Bano (supra), the Muslim Women (Protection of Rights on Marriage) Act, 2019 was enacted to make the practice of instant triple talaq a punishable offence. However, talaq pronounced by talaq-e-hasan or talaq-e-ahsan was valid under Muslim Personal Law.

"The pronouncement of talaq-e-sunnat either by Ahsan form or Hasan form has not been made penal in the Muslim Women (Protection of Rights on Marriage) Act, 2019. Talaq-e-hasan or talaq-e-ahsan are legal and valid under the Muslim Personal Law."

In talaq-e-ahsan, the husband repudiates his wife by a single pronouncement in a period of tuhr during which he has not had intercourse with her and then leaves her to the observances of iddat. The divorce remains revocable during iddat. If the couple resumes cohabitation or intimacy within the period of iddat, the pronouncement of divorce is treated as having been revoked.

The court observed that the petitioner had narrated the grounds and reasons for pronouncing talaq in the talaq kuries. Despite the efforts of the petitioner, the complainant was not willing to lead a peaceful family life with him. It was considered that the complainant had filed a criminal case against the petitioner and his aged parents on false allegations.

Based on the above, the court concluded that the talaq pronounced by the petitioner could not be stated to be instantaneous or irrevocable. Accordingly, the final report and criminal proceedings initiated against the petitioner were set aside.

The petitioner and the complainant had gotten married as per the Muslim rites and customs in 2015. As their relationship got strained, the petitioner pronounced first talaq in February, 2022. When he pronounced the third talaq in April, 2022, his wife filed a complaint.

Counsels for petitioner (husband): Advocates D. Ajithkumar, Nabil Khader, MP Madhavankutty, Mathew Devassi, Ananthakrishnan A. Kartha, Remya M. Menon, Milana Oshine Like, Anoop Sathya

Counsels for respondents: Public Prosecutor MK Pushpalatha, Advocates S. Rajeev S, V. Vinay, MS Aneer, Sarath KP, Prerith Philip Joseph, Anilkumar CR