1. Talaq-e- ahsan and talaq-e- hasan - two approved forms of divorce in Muslim Personal Law of India vis--vis talaq-e-bidat – another form declared as unconstitutional by the Apex Court in Shayara Bano v. Union of India (2017 KHC 6574) are examined on the touchstone of the Muslim Women (Protection of Rights on Marriage) Act, 2019 in this Crl. M.C filed under Section 482 of Cr.P.C.
2. The Muslim Personal Law administered in India recognises out-of-court divorce at the instance of both wife and husband, as well as divorce through court at the instance of the wife. The former is regulated by uncodified Muslim Personal Law, as is clear from the terms used in Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. Embodying the Islamic claw of faskh, the Dissolution of Muslim Marriage, Act, 1939 provides divorce through court at the instance of the wife on fault-based grounds. Apart from the above modes of divorce, the Muslim Personal Law also recognises divorce by mutual consent without the intervention of the court.
3. Extra-judicial divorce at the instance of the husband, in Muslim law, takes the form of talaq and extra-judicial divorce at the instance of the wife takes the form of either talaq-e-tafwiz or khula. A Muslim wife can at the time of her marriage reserve in marriage deed a right for herself to dissolve the marital tie in specified circumstances. This is called tafwiz-e-talaq (delegated divorce). A Muslim wife may obtain a release from the marital contract by giving up her settled dower; such a divorce is consequently called khula. When a divorce is effected by mutual consent, it is called mubara’at which operates as a release and discharge on both sides.
4. Though the extra-judicial power given to the husband to dissolve the marriage by the pronouncement of talaq could only be resorted to as a last resort after pre-divorce conciliation, the practice of triple talaq or talaq-e- bidat - severing the nuptial tie forthwith on its pronouncement - was prevalent among the majority of the Muslim population in the country. The Apex Court, in the case of Shayara Bano (supra) had finally put an end to the practice declaring it to be against the ethos of the Constitution. It paved the way for the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019 criminalising the pronouncement of triple talaq in all its forms including, electronic forms and prescribes punishment for the same.
5. The petitioner married the 1st respondent on 20/7/2015 as per Islamic rites. A girl child was born in the wedlock. Their marital bliss did not last long. Marital disputes arose and the relationship strained which resulted in the institution of various legal proceedings. On 18/4/2019, the petitioner pronounced talaq by sending the talaqnama to the 1st respondent by a registered post. Annexure A3 is the talaqnama. On 10/1/2020, the 1st respondent preferred a complaint to the Circle Inspector of Police, Perumbavoor alleging that the talaq pronounced by the petitioner vide Annexure A3 talaqnama is triple talaq prohibited by the Muslim Women (Protection of Rights on Marriage) Act, 2019. Annexure A2 is the complaint. On the basis of the said complaint, the Perumbavoor police registered a crime against the petitioner for the offences under Sections 3 and 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019. Annexure A1 is the FIR. The petitioner has approached this court to quash Annexure A1 FIR invoking S.482 of Cr.P.C. on the ground that the talaq pronounced by him is not a talaq- e-bidat having the effect of instantaneous and irrevocable divorce, but talaq-e-sunnat recognised under the Muslim Personal Law and as such, the offences under Sections 3 and 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 are not attracted.
6. I have heard Sri.P.K.Ibrahim, the learned counsel for the petitioner and Sri. Sanal P.Raj, the learned Public Prosecutor. Even though notice has been served to the 1st respondent, there is no appearance.
7. The learned counsel for the petitioner Sri.P.K.Ibrahim submitted that what is prohibited under the Muslim Women (Protection of Rights on Marriage) Act, 2019 is talaq-e-bidat pronounced three times in a single sentence or separate sentence having the effect of instantaneous and irrevocable divorce and Annexure A3 talaq by no means could be interpreted as one of talaq-e-bidat. On the other hand, the talaq pronounced by the petitioner is talaq-e-sunnat which would come into effect only if the parties failed to reunite in marital tie within the period of iddat. The counsel further submitted that the talaq pronounced by the petitioner was for reasonable cause after the pre-divorce conference as evidenced by Annexure A3. This form of divorce is perfectly valid under the Muslim Personal Law, submitted the counsel. Per contra, the learned Prosecutor submitted that a reading of Annexure A3 would show that it dissolves the marriage instantaneously and as such, offences punishable under Sections 3 and 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 are clearly attracted. When a prima facie case is made out, the jurisdiction vested with this court u/s 482 of Cr.P.C to quash the proceedings cannot be invoked, submitted the learned Public Prosecutor.
Talaq: Nature and Concept
8. A Muslim husband may, under all schools of Muslim law, effect an out-of-court divorce by his own declaration. This is called talaq. The word talaq is an Arabic word which means “undoing of or a release from knot”. It is used by Muslim jurists to denote the release of women from the marriage tie. According to Hedaya (Ali ibn Abi Bakr Marghinani, Hedaya, trans. Charles Hamilton, Wm H Allens & Co., London, 1870 at 72.), talaq means a repudiation of wife and husband in the exercise of the absolute power which the law has conferred on him.
9. The doctrine of talaq, in fact, was not introduced by Islam, as it is widely believed. It was a practice that Islam preferred and refined in its law. Under the ancient Hebraic Law, a husband could divorce his wife for any cause which made her disagreeable to him, and there were few or no checks to his arbitrary and capricious use of this power. Among the pre-Islamic Arabs, the powers of divorce possessed by the husband were unlimited. They could divorce their wives at any time, for any reason or without any reason. They could also revoke their divorce, and divorce again as many times as they preferred. The pre-Islamic institution of divorce acquired no formula to make its operation valid, and as there was no check on the irresponsible power of the husband, a simple intimation from him to the effect that tie was dissolved was considered sufficient (Syed Ameer Ali, Mohammedan Law, Hind Publishing House, Allahabad, 5th edn., 2005 at 1551 – 54). At the time of the Prophet’s appearance, the repudiation by the husband for no reason was common among them as among the Bagan Arabs. Those social and moral ills and injustice engaged the attention of the Prophet. It was impossible, however, under the existing condition of society to abolish the custom entirely. The Prophet had to mould the mind of an uncultured and semi-barbarous community to higher development. Accordingly, he allowed the exercise of the power of divorce to the husband under certain conditions and gave to the woman the right of obtaining the separation on reasonable grounds (Syed Khalid Rashid, Muslim Law, Eastern Book Co., Lucknow, 1996 at 97-8.).
10. The Muslim law does not allow a Muslim husband unlimited discretion to divorce his wife instantly as he pleases as widely believed. On the contrary, Muslim law allows talaq subject to several conditions that are of dissuasive nature. A man should pronounce a talaq only if he has really made up his mind to put an end to the marriage. Quran, the foremost source of Muslim law, prescribes certain steps before the pronouncement of the first talaq. The Quran says:
“As to those women for whose part you fear disloyalty and ill-conduct, admonish them (first), (next), refuse them cohabitation and (last), turn away from them; but if they behave with you, then do not seek a device with them” (Quran IV: 34).
As a first step, when there is marital discord, the Quran advises the husband to reason with his wife through discussion. If differences persist, then, the parties are asked to sexually distance themselves (wahjuru hunna) from each other in the hope that temporary physical separation may encourage them to unite. If even this fails, the husband is instructed, as a third step, to once again explain (wazirabu hunna) to his wife the seriousness of the situation and try to bring about a reconciliation. If the dispute still remains unresolved, as the next step, the Quran requires the matter to be placed before two arbiters, one from the family of each spouse, for resolution. The Quran in this regard says:
“If you fear a breach between them again, appoint(two) arbiters one from his family, and the other from hers; if they wish for these Allah will cause their reconciliation, for Allah has full knowledge, and is acquainted with all things” (Quran IV: 35 ).
11. After the failure of the attempts at reconciliation mentioned above that the Quran allows the talaq to be pronounced. However, the man is not allowed to pronounce talaq while the wife is in her menstrual period since this is a period of mutual distance not fit enough to take a decision on separation. A man thinking of talaq must wait till the wife is in tuhr – Menstruation free state. Quran insists on the presence of two just witnesses to witness the pronouncement of talaq. The talaq declaration is primarily and ordinarily an inchoate action which does not break the marriage forthwith. After the pronouncement of talaq, the woman will have to pass her turn of waiting period called iddat to afford the man a fair opportunity to reconsider the decision and nullify his declaration, formally or by conduct. Iddat means, in the case of a pregnant wife, the period till she is free from confinement and, in respect of all other wives, approximately three months during which at least two menses-free periods for the wife would have intervened. Withdrawal of a talaq declaration is allowed to the man during the iddat period even if the wife does not agree to it (Tahir Mahmood, The Muslim Law of India, Lexis Nexis, New Delhi, 3rd edn., 2002 at 104). If the parties are unable to unite during the period of iddat and the husband does not withdraw his talaq declaration, the marital bond stands severed on the expiry of the period of iddat and the talaq becomes irrevocable.
Classification of talaq
12. Various authorities including Faizee and Ameer Ali classify talaq into two forms (1) talaq-e-sunnat and (2) talaq-e-bidat. Talaq-e-sunnat is further classified into “ahsan” and “hasan” forms. Tahir Mahamood opines that these classifications are not “modes” or “forms” of talaq, those expressions only refer to the conduct of the man in pronouncing talaq i.e., whether he has or has not followed the prescribed rules for it which aim at dissuading and keeping him away from actually breaking the marriage (supra).
13. As noted already, the Muslim law prescribes a simple procedure for talaq keeping all chances of reconciliation and reconsideration open. A talaq strictly following this procedure is talaq-e-sunnat- a proper talaq. A talaq in violation of the prescribed procedure is talaq-e-bidat- an improper talaq. Talaq-e-sunnat is further classified into two based on degrees of virtue in respect of the man’s conduct – talaq-e-ahsan and talaq-e- hasan.
14. In talaq-e-ahsan, the husband 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 iddat. The divorce remains revocable during iddat. If the couple resumes cohabitation or intimacy within the period of iddat, the pronouncement of divorce is treated as having been revoked. Therefore, talaq-e-ahsan is revocable. Conversely, if there is no resumption of cohabitation or intimacy during the period of iddat, then the divorce becomes final and irrevocable, after the expiry of the iddat period. In case of marriage not yet consummated, ahsan talaq may be pronounced during menstruation also. Where the wife and husband are living separate from each other or where the wife is beyond the age of menstruation (old age), the condition of tuhr is not applicable. Talak-e-ahsan is based on the following verse of Quran:
"And the divorced woman should keep themselves in waiting for three courses." (II.228)
15. Hedya brands talaq-e-ahsan as the most laudable divorce. According to Hedya, this method of divorce is the most approved because of the compassion of the Prophet and secondly, it remains within the power of the husband to revoke the divorce during iddat (Ali ibn Abi Bakr Marghinani, Hedaya, trans. Charles Hamilton, Wm H Allens & Co., London, 1870 at 72).
16. Talaq-e-hasan is also an approved form of divorce, which consists of three pronouncements made during three tuhrs with no intercourse taking place during any of these intervals. After the first talaq, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as revoked. The same procedure is mandated to be followed, after the expiry of the first month (during which marital ties have not been resumed). After the second pronouncement of talaq, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as revoked. Not more than two talaq can be pronounced within the period of iddat. Quran says:
“Divorce is only permissible twice, after that, the parties should either hold together on equitable terms, or separate with kindness” (II: 229).
If the parties are unable to unite during the period of iddat, the final irrevocable talaq can be pronounced, but only after the period of iddat. When the final talaq is pronounced, it becomes irrevocable and the marriage comes to an end. In this regard Quran says:
“So, if he (the husband) divorces her (third time) she shall not be lawful to him afterwards until she marries another person” (II: 230).
17. The hasan form is one in which the Prophet tried to put an end to a barbarous pre-Islamic practice. The practice was to divorce a wife and takes her back several times in order to ill-treat her. The prophet, by the rule of the irrevocability of the third pronouncement, indicated clearly that such a practice would not be continued indefinitely. Thus, if a husband really wished to take the wife back, he should do so; if not, the third pronouncement, after two reconciliations, would operate as a final bar. These rules of law follow the spirit of the Quranic injunction.
“Then when they have reached their term, take them back in kindness or part from them in kindness” (II: 231).
18. The distinction between talaq- e-ahsan and talaq-e-hasan is that, in the former, there is a single pronouncement of talaq followed by abstinence during the period of iddat, whereas, in the latter, there are three pronouncements of talaq, interspersed with abstinence. In both these forms, there is a chance for the party to be reconciled by the intervention of friends or otherwise. They are, therefore “approved” forms and are recognized by Muslim law. The Division Bench of this court recently in Sajani A v. Dr Kalam Pasha and Another (2021 (5) KHC 582) held that talaq-e-ahsan and talaq-e-hasan are the valid forms of talaq recognised in Muslim Law.
19. There is yet another mode. When the husband pronounces three formulas at one time, whether the wife is in a state of tuhr or not, the separation takes place instantaneously. This is called talaq-e-bidat, more popularly known as triple talaq in India - e.g., if a man declares talaq using the expression in one sentence - "I divorce thee thrice," - or in separate sentences e.g., "I divorce thee, I divorce thee, I divorce thee". The triple talaq in one utterance resulting in divorce once and for all proceeds from the own will of the husband without there being any attempt to reconcile marital discord during the prescribed period in the Quran. It is totally antithetical to the spirit of the Quran. Quran nowhere approves of triple talaq in one utterance. In fact, it was a pre-Islamic practice which was firmly rejected by the Prophet. It was not at all allowed during the Prophet’s time and also during the time of the first caliph. It was allowed only during the latter part of the second caliph Hazrath Umar. The noted Egyptian Scholar, Muhammed Husain Haykal, maintained that this system was resorted to meet the extraordinary situation which arose when many women from Syria, Egypt, etc. were brought to Madina after the wars of conquest. They were fair complexioned and beautiful. The Arabs were tempted to marry them. But these women were not used to living with co-wives and often made a condition that the men divorce their wives thrice so that they could not be taken back. Little did they know that according to Quran and Sunnat, three divorces were treated only as one. The Arabs would pronounce three divorces to satisfy these Syrians and other women, but later took their former wives back, giving rise to innumerable disputes. To meet such a situation, Hazrath Umer thought it fit to enforce triple divorce in one sitting as an irrevocable divorce so that those women could not be cheated. It would thus be seen that the second Caliph took that extraordinary step to meet an extraordinary situation (Asghar Ali Engineer, ‘Practice of Talaq Among Muslims and the Fatwa’, Mainstream, 14th August 1993, at 17).
20. Quran says “If your women are obedient to you, you must not seek separation from them” (IV;34). In another Surah, the Quran prescribes: “Live with them in a good manner. If you dislike them, it may be that you dislike a thing and Allah has placed for you much good therein” (Surah An-Nisah 19). The Prophet also discouraged and disapproved of talaq except in extremely intolerable circumstances. This has been done in two ways namely condemning divorce and condemning forbearance and continuance of marital relationship in the case of disagreement. The Prophet is reported to have said: “The curse of God rests on whom who repudiates his wife capriciously” (Comp.D’Ohson, Vol.III, p. 79, as quoted in Mohammedan Law, Vol. II, by Syed Ameer Ali (Himalaya Books, New Delhi, 5th edn., 1985 at 473). The Prophet warned his people: “Marry, do not divorce for God does not like men and women who relish variety in sex matters” (Ali Al-Muttaqee, Kanzal Ummal, Deccan, Hyderbad, 1313 AH at 159). The prophet is reported to have said: “Divorce shakes the throne of God” (Ahmed A Galwash, The Religion of Islam, Cairo, 1945 at 117). On another occasion, he said: “Let not the faithful man hate the faithful woman, if he dislikes some of her habits, he may like others” (Walee-al-Din-al khaaib Mishakaat-al-Masabih, Delhi, 1350 AH, at 280). In an authentic hadith (saying of the Prophet), it is stated that of the lawful acts, the most detestable to Allah is divorce (Hadith No. 217, Abdu Dawud, http: //www.hadithcollection.com). Thus, both Quran and Prophet prohibit triple talaq.
Shamim Ara to Shayara Bano
21. The Apex Court in Shamim Ara v. State of UP (AIR 2002 SC 3551) spelt out the requirements of a valid talaq as (i) that the talaq must be for a reasonable cause; and (ii) that it must be preceded by attempts at reconciliation between the husband and the wife by two arbiters - one chosen by the wife from her family and the other by the husband from his family. If their attempts fail, talaq can be effected. Even though Quranic principles and Hadith literature quoted above as well as the law declared by the Apex Court in Shamim Ara (supra) stipulate that there must be reasonable cause for a valid talaq, neither the Quranic injunctions nor the Sunnahs or Hhadis enumerate causes for divorce that are reasonable or the causes that are unreasonable. There is no obligation under Muslim law to give reasons or satisfy anyone else for such reasons. This stipulation of Muslim law is not modified by any legislative intervention. In Shamim Ara (supra) also, there is no guideline as to what will be a reasonable cause and what will not be a reasonable cause. The question of how one of the conditions precedent for a valid talaq, that there must be reasonable cause, is to be understood In the total absence of such guidelines or stipulations came up for consideration before the Division Bench of this Court in Kunhimohammed v. Ayishakutty (2010 (2) KHC 63). It was held that in the total absence of any such guidelines, the reasonableness of the substantive cause for divorce is not justifiable before a court. It was declared in the said decision that until the legislature intervenes, and until it chooses to prescribe the reasonable grounds for divorce, the procedural reasonableness i.e., if the attempt for reconciliation by the two arbiters in accordance with Verse 35 of Surah IV has taken place and they have not succeeded in bringing about reconciliation, it can be held that there is reasonable cause for pronouncement of talaq and the specific reason for divorce need not be established before the court. This decision was followed by the Karnataka High Court (Mohammed Ibrahim v. Mehrunisa Begum 2004 (2) KLT SN 71 (C.No.84)), Bombay High Court (Shameem Beig v. Najmunnisa Begum CDJ 2006 BHC 1216) and Andhra Pradesh High Court (Zamrud Begum v. KMD Haneef 2003 (3) ALD 220) wherein it was held that the talaq must be for a reasonable cause and preceded by attempts for reconciliation, one by wife’s family and the other from husband’s family. The Madras High Court also took the same view in Shahul Hameed v. Salima). The Division Bench of this Court in Ummer Farooque v. Naseema (2005 (4) KLT 565)held that, to be a valid talaq, it should be for a reasonable cause and be preceded by the attempt of reconciliation between the husband and wife by two arbiters. Another Division Bench of this Court in Saidali v. Saleena (2008 (4) KLT 885) held that the arbitrary unilateral power to inflict instant divorce does not accord with Islamic injunctions. It was further held that the Holy Quran expressly prohibits a man to seek a pretext for divorcing his wife so long as she remains faithful and obedient to him and in the absence of serious and permissible grounds, no man can justify a divorce, either in the eye of religion or law.
22. A Single Bench of this court in Nazeer @ Oyoor Nazeer v. Shemeema (2017 (2) KHC 18) has held that triple talaq as practised in India is not in accordance with Quranic injunctions. In Sajini (supra), it was held that the feature of instant irrevocability in triple talaq takes in two independent features – instantaneousness and irrevocability – both of which contribute to making the practice legally odious. It was further held that when no attempt is made for reconciliation by two arbiters and when there is non-adherence of iddat immediately after the pronouncement of talaq, could render the pronouncement invalid. Finally, the Constitution Bench of the Apex Court in Shayara Bano (supra) declared the observance and practice of instant triple talaq void and unconstitutional.
Muslim Women (Protection of Rights on Marriage) Act, 2019
23. Following Shayara Bano (supra), the Muslim Women (Protection of Rights on Marriage) Act was passed in July 2019. The Act makes all declarations of talaq, including in written or electronic form, to be void and illegal (Section 3). It defines talaq as talaq-e-bidat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce (Section 2C). Talaq-e-bidat refers to the practice under Muslim personal laws where the pronouncement of the word talaq thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce. The Act makes a declaration of talaq a cognizable offence, attracting up to three years’ imprisonment with a fine (Section 4).
24. What was declared illegal and void by the Apex Court in Shayara Bano (supra) and by Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 and made as an offence by Section 4 thereof, was the pronouncement of talaq-e-biddat or any other similar form of talaq resulting in instant and irrevocable divorce. The peculiar features of this form of talaq are its instantaneousness and irrevocability. On the other, both ahsan form and hasan form, contemplate a period, immediately after the pronouncement of talaq, whether such pronouncement is only once, or thrice over three successive lunar months, when the husband can revoke the talaq. The declaration of talaq-e-sunnat, either by ahsan form or by hasan form, was neither declared void or unconstitutional by the Apex Court in Shayara Bano (supra) nor made penal by Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019. Both these forms (talaq-e-ahsan and talaq-e-hasan) are still legal and valid under the Muslim Personal Law of India.
25. Coming to the merits of the case, the reason for pronouncing talaq has been explained in detail by the petitioner in Annexure A3. It is stated that the petitioner’s marital life with the 1st respondent has become impossible with no result in the meditations at the instance of jama ath and relatives from both sides. Annexures A4(a), A4(b) and A4(c), the copy of the resolutions of mediations held on 26/8/2016, 12/3/2017 and 9/8/2017, would clearly show that several mediations took place at the instance of the jama ath and the relatives as contemplated under Muslim La
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w prior to the pronouncement of talaq. Annexures A5(a) and A5(b) would show that the parents of the petitioner had to approach the High Court seeking police protection to enter into their house. It is alleged that the 1st respondent trespassed into the house of the parents of the petitioner and forcibly occupied it on 9/5/2018 when the parents went to the hospital. Annexure A6 is the complaint filed by the 1st respondent against the petitioner and his parents before the Sub Inspector of Police, Tadiyittaparambil. Annexure A7 is the copy of the FIR registered against the petitioner, his parents and his brother pursuant to Annexure A6. Annexures A8(a) to A9 are various legal proceedings pending between the petitioner and the 1st respondent under the Protection of Women from Domestic Violence Act. 26. A cumulative reading of Annexures A4 to A10 will indicate the reason for divorcing the 1st respondent. It would further show that the mediations failed. Thus, all the pre-requisites for a valid talaq were complied with. There is nothing in Annexure A3 to suggest that the talaq pronounced by the petitioner was instantaneous and irrevocable. The petitioner has asserted that it would come into effect only after the period of iddat. True, there is only one pronouncement of talaq in Annexure A3. There is a misconception that for a valid talaq, three pronouncements must be made during three tuhrs. As stated already, the extra-judicial divorce at the instance of the husband by the single pronouncement of talaq is perfectly valid if it is preceded by a pre-divorce conference and followed by observance of iddat with no sexual intercourse in between. Such a pronouncement would not attract the penal consequences contemplated under the Muslim Women (Protection of Rights on Marriage) Act, 2019. Conclusion and Relief 27. For the reasons stated above, I have no hesitation to conclude that the talaq pronounced by the petitioner is not talaq-e-biddat prohibited under the Muslim Women (Protection of Rights on Marriage) Act, 2019, but talaq-e-sunnat permitted under the Muslim Personal Law of India. It is true that the power under Section 482 of Cr.P.C. should not ordinarily be exercised to stifle a legitimate prosecution. At the same time, if the basic ingredients of the offence alleged are altogether absent, the criminal proceedings can be quashed under Section 482 of Cr.P.C. If the entire averments in Annexure A2 complaint and Annexure A1 FIR are taken at their face value, they do not constitute the ingredients necessary for the offences punishable under Sections 3 and 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019. Hence, no purpose will be served in proceeding with the matter further. Accordingly, all further proceedings in FIR No.0046/2020 registered at Perumbavoor Police Station are hereby quashed. Cr. M.C stands allowed.