Illegal 'Talaq-E-Sunnat' Not Punishable As 'Triple Talaq': Kerala High Court

The petitioner had sought quashing of the proceedings against him before the Judicial Magistrate First Class.

The respondent had accused him of committing an offence under the Muslim Women (Protection of Rights on Marriage) Act, 2019 by pronouncing instant and irrevocable talaq on her.

The petitioner however argued that this was not a case of instantaneous talaq or talaq – e – biddat of irrevocable nature. He had pronounced talaq on 3 days – 23/12/2021, 13/07/2022 and 16/10/2022. The petitioner contended that this was talaq-e-sunnat and is not illegal.

In Sajani A. v Dr. B. Kalam Pasha and Another (2021), Kerala High Court held that to rule out the instantaneousness of the divorce, it should be shown that there were genuine attempts of reconciliation by 2 arbiters – one chosen by the wife from her family and the other from the husband from his family. The respondent argued that in this case, there was no genuine attempt at reconciliation by the 2 arbiters.

They contended that this would make the act talaq-ul-biddat and hence punishable by law.

The Court said that what is prohibited under the act is talaq–e–biddat or any other talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.

The Court then described various modes of talaq under the Principles of Mohammedan Law:

1. Talaq ahsan: A single pronouncement of talaq during a tuhr (period between menstruations) followed by abstinence from sexual intercourse for period of iddat. If the marriage has not been consummated, talaq in ahsan can be pronounced even during the menstruation. If the wife has passed the age of menstruation, there is no requirement to pronounce the talaq during the tuhr. Further, the requirement only applies to an oral divorce and not a divorce in writing.
2. Talaq hasan: This consists of three pronouncements made during successive tuhrs, no intercourse taking place during any of the tuhrs.
3. Talaq – ul – biddat or talq – i – badai: This consists of three pronouncements made during a single tuhr in one sentence or separate sentences. Additionally, a single pronouncement made during a tuhr clearly indicating an intention to irrevocable dissolve the marriage also comes under this category..

Talaq ahsan and Talaq hasan are two forms of talaq–e-sunnat. The Court held that while talaq – ul – biddat is criminalized by law, talaq – e – sunnat is still a valid form of divorce. In talaq–e–sunnat, the husband has an opportunity to reconsider his decision and talaq does not become absolute until a certain period has lapsed.

The Court held that when the petitioner has pronounced talaq – e - sunnat, but it is found to be illegal for not fulfilling the pre-requisites, it does not become talaq -e – biddat. Additionally, when a talaq-e-sunnat is incomplete for not fulfilling the pre-requisites, it does not automatically become talaq – ul – biddat.

Justice A. Badharudeen observed:

“But when the very intention was to pronounce talaq – e – sunnat, if the talaq -e -sunnat pronounced is found to be illegal for want of compliance of the pre-requisites, then the said talaq would not become talaq – ul- biddat.”

Hence, the court quashed the proceedings against the petitioner pending before the Magistrate.

Counsel for the Petitioner: Advocates Alias M. Cherian, K. M. Raphy, Bristo S. Pariyaram, Ameera Jojo, Minnu Darwin

Counsel for the Respondents: Public Prosecutor Adv. M. P. Prasanth, Advocates Abdul Jaleel P. M., T. V. Shaji, K. N. Muhammed Thanveer, K. Shameer Mohammed, Arunima T.S., Althaf Ahmed Abu

Case No: Crl.M.C. 6383 of 2023

Case Title: Sajid Muhammedkutty v State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 480