Rehan Khan
The Himachal Pradesh High Court recently clarified the scope of the Muslim Women (Protection of Rights on Marriage) Act, 2019, ruling that the Act specifically criminalizes only those forms of divorce that are instantaneous and irrevocable, such as Talaq-e-Biddat. This ruling came in response to a petition filed by a Muslim man seeking to quash an FIR registered against him under Section 4 of the Act. The FIR was based on allegations that the man had divorced his wife through Triple Talaq, a practice that is prohibited under the 2019 law.
The petitioner argued that the divorce he initiated was in accordance with Talaq-e-Hasan, a form of divorce that involves multiple pronouncements over a period of time, rather than an instantaneous one. According to the petitioner, this method is permissible under Islamic law and does not fall within the prohibition outlined in the 2019 Act. Justice Rakesh Kainthla, who presided over the case, emphasized that Muslim law does not prescribe a single mode of divorce, but instead recognizes at least three forms of talaq, among which only Talaq-e-Biddat is instantaneous and irrevocable. The Court pointed out that the legislature’s intention behind the 2019 Act was to specifically target and prohibit such forms of divorce.
“The legislature has only prohibited Talaq-e-Biddat or any other similar form of Talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband,” the Court noted, clarifying that Talaq-e-Hasan, which allows for revocation during the waiting period (Iddat), does not fall under this prohibition.
The Court also referenced the landmark Supreme Court judgment in Shayara Bano v. Union of India, where Triple Talaq was declared unconstitutional. The Supreme Court had ruled that this practice violated constitutional morality, the dignity of women, and principles of gender equality. In support of its decision, the Himachal Pradesh High Court also cited the Kerala High Court’s ruling in Saheer v. State of Kerala, which reaffirmed that only instantaneous and irrevocable forms of talaq, such as Talaq-e-Biddat, are criminalized under the 2019 Act, while the pronouncement of Talaq-e-Sunnat, whether through Hasan or Ahsan forms, remains lawful.
In evaluating the petition to quash the FIR, the Himachal Pradesh High Court examined the FIR under Section 482 of the Criminal Procedure Code (Cr.P.C.), which allows the court to intervene when allegations do not constitute an offense. The court observed that the FIR did not reference an instantaneous or irrevocable divorce but rather a notice issued by the petitioner that followed the Talaq-e-Hasan procedure. “It reads that the petitioner conveyed the first communication of Talaq as required by law by pronouncing the word ‘Talaq’. It nowhere mentions that the Talaq had become irrevocable or it had the effect of instantaneous divorce,” the Court remarked, indicating that the communication did not fall within the definition of Talaq-e-Biddat.
However, the court also acknowledged that the wife had made a statement alleging that her husband had divorced her in January 2022 by pronouncing Triple Talaq, and it questioned why this was not mentioned in the FIR. Despite these observations, the Court concluded that the trial process was the appropriate forum to ascertain the truthfulness of these claims. Since a chargesheet had already been filed, the court declined to quash the FIR, emphasizing that the matter should proceed through the judicial process without premature conclusions on the merits of the case.
Case Title: Shehwaz Khan State of H.P and Anr.
Case no.: Neutral Citation No. (2024:HHC:6582)