When Pronouncement Of ‘Talaq-e-Sunnat’ Is Effected, It Won't Attract Offence Under Muslim Women (Protection of Rights on Marriage) Act 2019: Kerala HC

The Court was hearing a Criminal Miscellaneous Case filed under Section 482 of the Code of Criminal Procedure, by the sole accused to quash the final report on the file of the Judicial First Class Magistrate.

The bench of Justice A. Badharudeen observed, “But when pronouncement of talaq-e-Sunnat is effected, no offence under Section 3 r/w 4 of the Act, 2019 would attract. Similarly when pronouncement of talaq-e-sunnat is attempted, but not legally completed for want of compliance of pre-requisites, the same would not tantamount to talaq-e-biddat to attract Sections 3 and 4 of the Act, 2019. That is to say, in such an instance, no talaq or divorce takes place and the marital relation will continue.”

Advocate Alias M. Cherian appeared for the Appellant and Advocate T.V. Shaji appeared for the Respondent.

Brief Facts-

It is the case of the prosecution that the petitioner has committed an offence punishable under Section 3 read with Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019. The allegation is that the petitioner/accused pronounced instantaneous and irrevocable talaq upon his wife/the defacto complainant and thereby committed the above offence. It was argued by the Petitioner that it is not instantaneous talaq or talaq-e-biddat of irrevocable nature since he pronounced talaq periodically in different months over 10 months and the form of talaq pronounced by the petitioner is talaq-e-sunnat which is legally permissible.

The Court perused Sections 3, 4 and 2(c) of the 2019 Act and observed, “it is emphatically clear that to attract punishment provided under Section 4 and to treat pronouncement of talaq by a Muslim husband upon his wife as talaq-e-biddat or any other form of talaq, as per Section 2(c), it must be instantaneous and irrevocable.”

While explaining the Talaq-e-Sunnat as per Mohomedan Law the Court observed, “There are two types of Talaq-e-sunnat, namely, (1) ahsan, that is, most proper, and (2) hasan, that is, proper. In the case of talaq ahsan and talaq hasan, the husband has an opportunity of reconsidering his decision and the talaq in both these cases does not become absolute until a certain period has elapsed and the husband has the option to revoke it before then. But the talaq-ul-biddat becomes irrevocable immediately if it is pronounced. The essential feature of a talaq-ul-biddat is its irrevocability. One of tests of irrevocability is the repetition three times of the formula of divorce within one tuhr. But the triple repetition is not a necessary condition of talaq-ul-biddat, and the intention to render a talaq-irrevocable may be expressed even by a single declaration.”

Accordingly, the Court said that the talaq pronounced by the accused in the present case is not talaq-e-bidat, ie. instantaneous and irrevocable to rope in Sections 3 and 4 of the Act, 2019.

Finally, the Court quashed the Criminal Case before the Judicial Magistrate and allowed the Criminal Miscellaneous Case.

Cause Title: Sajid Muhammedkutty v. State of Kerala (Neutral Citation: 2024:KER:56255)

Appearance:

Appellant: Adv. Alias M. Cherian, Adv. K.M. Raphy, Adv. Bristol S. Pariyaram, Ameera Jojo, Adv. Minnu Darwin

Respondent: PP M.P. Prasanth, Adv. Abdul Jaleel P.M, Adv. T.V. Shaji, Adv. K.N. Muhammed Thanveer, Adv. K. Shameer Mohammed, Adv. Arunima T.S. And Adv. Althaf Ahmed Abdu

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