Madhya Pradesh HC Refuses Relief To Husband Who Threatened Wife With Irrevocable Divorce Through Talaq-E-Ahsan, Illegally Pronounced Talaq-Ul-Biddat

Madhya Pradesh High Court recently refused to quash criminal proceedings pending against a husband and the witnesses who signed talaknama for granting Talaq-e-ahsan to a woman in contravention of Section 2(c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

The applicant-husband primarily submitted that Talaq-e-ahsan has no instantaneous effect and it becomes effective only after the completion of the wife's three menstrual cycles.

The single-judge bench of Justice Gurpal Singh Ahluwalia held that it does not become lawful merely by virtue of the husband's discretion to withdraw the same before the Talaq comes into force. It was further noted thad that before the period of iddah was over, the appellant had illegally pronounced talaq ul biddat or triple talaq to his wife. 

The court, after perusing the Talaq-e-ahsan sent by the applicant-husband by registered post on 30.01.2023, noted that the husband is effectively putting pressure on the complainant wife to come back during the period of iddah by threatening that Talaq would take effect otherwise. Therefore, the court felt that Talaq-e-ahsan sent by the husband is akin to 'instantaneous talaq'.

“….Merely because the applicant has sent Talaq-e-ahsan with aforesaid condition would not take his case out of the purview of section 2(c) of the 2019 Act, because the applicant has already expressed his intention to grant irrevocable talaq to respondent No.2. Such a Talaq-e ahsan sent by the applicant is contrary to the reasons and objects of the 2019 Act”, the bench sitting at Jabalpur laid down in unequivocal terms.

Talaq-e-biddat is also commonly known as Triple Talaq; Talaq e-ahsan can be revoked before it becomes operative. The landmark decision of the apex court in Shayara Bano v. Union of India (2017) had made Talaq-e-biddat or other similar forms of instant talaq void and unconstitutional. As per Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, a Muslim husband who pronounces Talaq upon his wife under Section 3 can be punished with imprisonment for a term extending up to three years and a fine.

It is pertinent to note here that the Talaq-e-ahsan sent by the husband was made revocable during the period of iddah subject to the completion of the wife's three menstrual cycles. As per the document, after the expiry of this period, the pronouncement would become absolute and divorce would be final and irrevocable. To avoid such a situation, it was stated that the wife should come back to her husband's matrimonial house before the iddah period ends.

“…the applicant has already expressed his irrevocable divorce to the respondent No.2 and has made it conditional that only if respondent No.2 comes back to her matrimonial house then he would take her in kindness otherwise each of them would render Haram for other”, Justice Ahluwalia explained further.

It was stated that in the Talaq-e-ahsan, the husband usually 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 iddah, and the divorce remains revocable during iddah. If the couple resumes cohabitation or intimacy within the period of iddah, the pronouncement of divorce is treated as revoked, it was stated.

The applicant's counsel relied on the Kerala High Court's decision in Saheer v. State of Kerala, 2023 LiveLaw (Ker) 666 to establish that criminal proceedings against a husband who has pronounced talaq-e-ahsan wouldn't stand since it is within the purview of Muslim Personal Law, and not contrary to Section 2(c) of Muslim Women (Protection of Rights on Marriage) Act. However, the court refused to agree with the husband's contention surrounding Talaq-e-ahsan being a recognised mode of divorce after seeing its content.

Even otherwise, the applicant along with his mother reached the parental home of the wife before the completion of iddah period and gave Talaq-e-biddat by pronouncing talaq thrice, the court pointed out.

“…Under these circumstances, when Talaq-e-ahsan had not become operative then giving Talaq-e-biddat to respondent No.2 clearly makes out an offence against the applicant”, the court refused to interfere in the case pending before the trial court citing the above reasons.

The marriage between the parties was solemnised in 2017. Thereafter, a self-signed Talaknama was sent by the husband, allegedly due to non-fulfilment of the demand for dowry and the factum of the wife giving birth to a girl child.

It was stated that after the pronouncement of Talaq-e Ahsan, the husband also gave Talaq-e-biddat. F.I.R was registered on 23.12.2023 at Gandhi Nagar Police Station (Bhopal) which the husband sought to quash under this Section 482 CrPC application.

Advocate Sankalp Kochar appeared for the applicant-husband. Govt. Advocate K.S.Baghel represented the state.

With Inputs from Tellmy Jolly

Case Title: Javed Naseem v. State of Madhya Pradesh & Anr.

Case No: Misc. Criminal Case No. 8056 of 2024

Citation: 2024 LiveLaw (MP) 55

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