All Forms Of Talaq Not Illegal; Only Triple Talaq Made Criminal Offence : Muslim Man Moves Supreme Court Seeking Pre-Arrest Bail

A Muslim man has approached the Supreme Court seeking anticipatory bail submitting that all forms of Talaq have not been made illegal and what has been made a criminal offence is only "Talaq-e-biddat" (triple talaq).

A bench of Justices Sanjiv Khanna and Bela M Trivedi issued notice in the special leave petition filed by the man assailing Jharkhand High Court's order dated January 17, 2022 ("impugned judgement/order")

In the impugned judgment, the High Court had refused to grant anticipatory bail to him against whom FIR was registered u/s 4 of Muslim Women (Protection of Rights on Marriage) Act, 2019.

As per section 4 of Muslim Women (Protection of Rights on Marriage) Act, 2019, any Muslim husband who pronounces talaq-e-biddat(triple talaq) or any other form of instantaneous or irrevocable talaq upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.

While issuing notice, the Top Court in their order said :

Learned counsel for the petitioner states that only Talak-ul-biddat is a criminal offence. However, the Talak ahsan and Talak hasan have not been declared as unconstitutional, illegal or made an criminal offence. These aspects have been overlooked by the High Court in the impugned judgment/order.

Issue notice, returnable on 29th April, 2022. Dasti, in addition, is permitted. In the meanwhile, the petitioner would not be arrested subject to his joining and cooperating in the investigation. It is clarified that we have not stayed the proceedings under Section 125 of the Code of Criminal Procedure or any other proceedings."

It may be noted that the Supreme Court in 2017 had declared the practice of Triple Talaq(Talak-ul-biddat) as unconstitutional by 3:2 majority. 

Case Before Jharkhand High Court

Apprehending his arrest, the petitioner had approached the High Court for grant of privilege of anticipatory bail in connection with case registered against him u/s 4 of Muslim Women (Protection of Rights on Marriage) Act, 2019.

It was submitted by the petitioner's counsel that the allegation against the petitioner for pronouncing talaq referred u/s 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 was false. Akhtar had although admitted that he was the informant's husband but had submitted that he did not commit any offense and that the averments made in the F.I.R. did not constitute any offence punishable under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019. Referring to section Section 2 (c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019 defines Talaq as- "talaq" means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband, he further submitted that Talaq was pronounced on 21.06.2021, 25.07.2021 and on 25.08.2021. Against this backdrop the petitioner had sought for grant of anticipatory bail.

Opposing the bail, Addl. P.P. appearing for the State relying on Section 2 (c) of the Muslim Women (Protection of Rights on Marriage) Act, 2019 submitted that meaning of Talaq was not only confined to talaq-e-biddat but in addition to that it also included any other similar form of Talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.

He further argued that it was not even disputed by the petitioner that the divorce was irrevocable one, as even though the informant was ready and willing to resume conjugal life but the petitioner was avoiding to resume conjugal life with the informant/opposite party No.2 only on the ground that the talaq between the petitioner and the informant was irrevocable one. It was also APP's contention that it was needless to mention that the Talaq came into effect instantaneously after its pronouncement hence, the act of the petitioner was squarely covered under Section 3 and 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

The High Court bench of Justice Anil Kumar Choudhary while rejecting the petitioner's anticipatory bail in their order said,

"Considering the serious nature of the allegation against the petitioner and the requirement of his custodial interrogation during the investigation of the case, this Court is of the considered view that this is not a fit case where the above named petitioner be given the privileges of anticipatory bail. Accordingly, the prayer for grant of privileges of anticipatory bail of the above named petitioner is rejected."

Case Title: Danish Akhtar V. The State Of Jharkhand & Anr.| Special Leave to Appeal (Crl.) No(s). 2063/2022

Click Here To Read/Download Supreme Court's Order 

Click Here To Read/Download High Court's Order