Triple Talak By Sending An E-Mail Amounts To Mental Torture: Patna HC Dismisses Husband’s Plea Against Cognizance Of Alleged Cruelty

The Court dismissed a Petition seeking quashing of cognizance taken against the husband under Section 498A of the IPC and Sections 3 and 4 of the Dowry Prohibition Act (D.P. Act). The Bench stated that by the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019, any pronouncement of talaq by a Muslim husband upon his wife by words, either spoken or written or in electronic form, will be void and illegal.

A Single Bench of Justice Shailendra Singh held, “From these facts as well as in the light of the allegations one thing is quite clear that after marriage the complainant was mentally tortured by this petitioner and his family members and was also neglected and all these things happened within six months from the marriage and further, giving divorce to the O.P. No.2 by this petitioner by simply sending an e-mail in which he mentioned the factum of giving three talak by him to the O.P. No.2 also amounts to a form of mental torture as the correct law of talak is that the talak must be for reasonable cause and the same must be preceded by attempts for conciliation between the husband and the wife by two arbitrators, one from the wife’s family and other from the husband and if such attempts fail then talak may be affected but the view that a Muslim husband enjoys an arbitrary and unilateral power of inflicting instant divorce is not acceptable.”

Advocate Syed Masleh-Uddin Ashraf appeared for the Petitioner, while APP Sanjay Kr. Panday represented the Opposite Parties.

The main ground taken by the husband to challenge the cognizance was that he had already divorced his wife by pronouncing triple talak over an e-mail as well as an SMS. He argued that the said divorce was accepted by the wife, and therefore, the written complaint was lodged by her with malafide intention.

However, the High Court clarified that “merely due to this fact the petitioner cannot be exonerated from the alleged offence of cruelty and demand of dowry as according to the allegations, the complainant was being tortured mentally since the time of her marriage on account of giving less ornaments and cash amount at the time of marriage ceremony.”

The Court explained that the husband could not be exonerated from the alleged offence as the wife in her complaint had alleged mental torture since the time of her marriage on account of giving less ornaments and cash amount at the time of marriage ceremony. The Bench explained that the legality of the alleged talak given by the husband must be examined by a competent authority or Court.

The Bench referred to the decision in Shayra Bano v. Union of India (2017) wherein the Apex Court declared the ‘triple talak’ as null and void in the eye of law. Though the judgement was pronounced in the year 2017, the Bench stated that the Apex Court did not specifically make the judgement passed in the case of Shayra Bano (supra) to operate prospectively hence, the law declared “would equally apply to the triple talak pronounced prior to passing of the said judgement.”

Consequently, the Court held, “This court is of the view that in the light of allegations levelled by the O.P. No.2 in her written report the alleged offences of which cognizance has been taken, prima facie, attract against the petitioner and there is no merit in this petition, so, it stands dismissed.”

Accordingly, the High Court dismissed the Petition.

Cause Title: A v. State Of Bihar & Anr.

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