The Himachal Pradesh High Court recently ruled that the Muslim Women (Protection of Rights on Marriage) Act, 2019 does not criminalize forms of talaq (divorce) that are not instantaneous and irrevocable.

Justice Rakesh Kainthla observed that under Muslim law, there are multiple modes of talaq, with at least three different types available. Among these, only Talaq-ul-Biddat is characterized by its instantaneous and irrevocable nature, which is the mode explicitly prohibited by law.

“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 said.

The other forms of talaq, such as Talaq-e-Ahasan and Talaq-e-Hasan, differ from Talaq-ul-Biddat in that the divorce becomes effective only after a certain period of time following the pronouncement by the husband.

The Court was hearing a petition to quash a First Information Report (FIR) filed against a Muslim man under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

In this case, the husband was accused of demanding dowry and harassing his wife. On April 25, 2022, he allegedly sent a written notice of divorce to his wife. It was claimed in the criminal case that this action violated the 2019 Act.

Challenging the criminal proceedings, the husband argued that his wife had left the matrimonial home without informing anyone and had not responded to his calls or messages thereafter. As a result, he contended that he had no other option but to initiate the first communication of talaq under Talaq-e-Hasan.

“The first notice of Talaq is not instantaneous but is revocable. The second notice of Talaq was issued on 25.05.2022, which is again revocable. The third pronouncement of Talaq was sent along with the cheque of ₹15,000 as maintenance for the iddat period. This form of Talaq is approved by Prophet Mohammad and is valid according to all schools of Muslim Law. This Talaq has not been made illegal under the Act,” the Court was told.

The State contended that the wife had testified that on January 13, 2022, the husband had given her an instant divorce by pronouncing talaq thrice. This claim was made prior to the notice of talaq sent in April 2022, according to the police.

In opposing the quashing of the case, the police noted that a chargesheet had already been filed and argued that the accused had informed a neighbor about the triple talaq.

The Court found that the FIR pertained to the notice issued by the husband in April 2022. Therefore, the Court determined that the communication sent by the husband did not prima facie constitute Talaq-ul-Biddat, which is punishable under the 2019 Act.

However, the Court acknowledged the wife's statement that the husband had pronounced triple talaq in January 2022. It noted that the discrepancy regarding why this was not mentioned in the FIR would be addressed during the trial.

“It was submitted that this statement is incorrect as no such statement was made while recording the FIR. This submission will not help the petitioner. The truthfulness or otherwise of the investigation is not to be seen at this stage.”

Given that the chargesheet had been filed, the Court noted that the matter was under the jurisdiction of the competent court.

Senior Advocate MA Khan, along with advocates Hem Kanta Kaushal and Azmat Hayat Khan, represented the petitioner.

Deputy Advocate General Ayushi Negi appeared for the State.

Advocates Imran Khan and Ketan Singh represented the informant.

Case Title: SK vs State Of H.P And Anr.