Bombay High Court cancels case against Muslim man, says he gave lawful one-time divorce

Holding that “what was prohibited was the Talaq-e-bidat and not Talaq-e-Ahsan,” the Aurangabad bench of the Bombay High Court has quashed an FIR and the proceedings emanating from it against a man and his family who had divorced his wife, according to Talaq-e-Ahsan.

The bench of Justices Vibha Kankanwadi and Sanjay A Deshmukh said that it would be an abuse of process of law, if a Jalgaon resident and his parents are asked to face trial.

The bench was hearing a plea filed by a 30-year-old man and his parents, who were in their 50s. The plea sought quashing of a FIR registered with Bhusawal Bazar Peth Police Station in Jalgaon and the case is pending before the Judicial Magistrate FirstClass, Bhusawal for the offences punishable under Section 4 (criminalizes triple talaq) of Muslim Women (Protection of Rights on Marriage) Act, and under Section 34 (common intention) of Indian Penal Code (IPC).

The man and the woman got married as per Muslim rites and customs on October 31, 2021 at Bhusawal, Jalgaon. They resided with his parents for about two weeks thereafter and then they went to Belapur, Navi Mumbai, where the man was serving. They lived there till April 2022 but as the woman was pregnant, she came to her own parents house.

The woman however faced a difficult pregnancy and it was alleged that without consulting her husband and his family, terminated her pregnancy. Later she allegedly also misbehaved with his family. The woman’s father was asked to intervene and even though he assured them, the woman again threatened that she would commit suicide if she is not permitted to go to her father’s house.

The differences between the couple only escalated and therefore, the man was constrained to pronounce a single divorce i.e. Talaq-e-Ahsan on December 23, 2023 in presence of witnesses. Few days later, he had sent a notice of Talaq by registered post as well. Thereafter, there was no cohabitation or joining of the husband and wife for 90 days and, therefore, as per Muslim customs and Shariyat Law, it became irrevocable and ultimately, a Talaq was confirmed between them, submitted the man’s advocate SS Kazi.

However, Additional Public Prosecutor AD Wange and advocate SM Naseer A appearing for the woman opposed the plea while submitting that statements of witnesses would show that the irrevocable Talaq has been given which is barred and held to be unconstitutional by the Supreme Court. “The Trial Court would be the best forum where it can be considered as to which kind of Talaq has been pronounced,” it was submitted.

The bench saw that Section 498A of IPC for cruelty to woman was not invoked. While Section 4 of the Muslim Women (Protection of Rights on Marriage) Act can be invoked only against husband and not against the parents-in-law. And thus there was no question of invoking Section 34 of IPC either. “There cannot be a common intention of pronouncement of Talaq. Therefore, even at this stage also, we can say that it would be an abuse of process of law if the matter is asked to be proceeded for the offence punishable under Section 4 of the Act against the father-in-law and mother-in-law,” observed the bench.

Further, the bench saw that ‘Talaq’ means ‘Talaq-e biddat’ or any other similar form of Talaq having the effect of instantaneous or irrevocable divorce pronounced by the Muslim husband which is illegal. While in the case at hand, the woman herself had stated in the FIR that the husband had stated in a notice sent on December 28, 2023 that what was given to her was Talaq-e-Ahsan i.e. one pronouncement of Talaq as per Shariyat.

Further the bench noted that the final Talaqnama has been given on March 24, 2024 wherein it was mentioned that after December 23, 2023, within 90 days, neither the woman had resumed cohabitation and there was no resumption of physical relations between them so the legal effect of Talaq-e-Ahsan has come into play.