The court ruled that only Talaq-ul-Biddat is unconstitutional; other forms of talaq, such as Talaq-e-Hasan, remain valid if executed properly, stressing the need for trial court adjudication on factual circumstances.

JUDGMENT :

PARTHIVJYOTI SAIKIA, J.

Heard Mr. R. Ali, the learned counsel appearing for the petitioner. Also heard Mr. A. Goyal, the learned counsel representing the Respondent No.2.

2. This is an application under Section 482 of the Criminal Procedure Code challenging the criminal proceedings of G.R. Case No.1317/2023 arising out of Tarabari P.S. Case No.72/2023 pending in a criminal court at Barpeta.

3. On 20.03.2023, 24.03.2023 and on 31.05.2023, the petitioner sent three notices to his wife the respondent no.2 declaring talaq. The respondent no.2 had lodged an FIR claiming that the aforesaid three talaqs are illegal according to law and therefore the present petitioner should be punished. Police registered the case under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.

4. The petitioner has filed this petition under Section 482 of the CrPC stating that he had divorced his wife by giving three notices. According to the petitioner, the Supreme Court has banned Talaq-e-Biddat only not Talaq-e-Hasan.

5. I have considered the submissions made by the learned counsel of both sides.

6. Under the Muslim Law, the three modes of talak, the first one of Talaq-e-Ahsan. It consists of a single pronouncement or divorce made during a Tuhr (period between menstruation) followed by abstinence from sexual intercourse for the period of iddat.

7. The second one is Talaq-e-Hasan. It consists of three pronouncements made during successive Tuhrs, no intercourse taking place during any of the three Tuhrs.

8. The third one is Talaq-ul-Biddat or Talaq-e-Badai. These consists of three pronouncement made during a single Tuhr either in one sentence, e.g. “I divorce thee thrice”, - or in separate sentences e.g. “I divorce thee, I divorce thee, I divorce thee” or a single pronouncement made during a Tuhr clearly indicating an intention irrevocably to dissolve the marriage, e.g. divorce thee irrevocably.

9. In Shayara Banu v. Union of India & Ors., reported in (2017) 9 SCC 1 , the Hon’ble Supreme Court has declared Talaq-ul-Biddat or Talak-e-Badai illegal and unconstitutional.

10. On the other hand, Section 3 of the Muslim Women (Protection of Rights on Marriage) Act, 2019, declares that any pronouncement of talaq (divorce) by a Muslim husband to his wife is "void and illegal". This section makes the practice of instant triple talaq, which can be done by speech, writing, or electronic means, a punishable offense under the Act.

11. It is an admitted fact that the notices of talaq were issued on 20.03.2023, 24.03.2023 and on 31.05.2023. Were these notices sent during successive Tuhrs and was there any intercourse, which had taken place during any of the three Tuhrs? These are facts that are to be proved by reading evidence.

12. This Court is of the opinion that the trial court is the best forum to decide such issues. The ratio laid down in State of Haryana v. Bhajan Lal, AIR 1992 SC 604 is not applicable in the present case.

13. Under the aforesaid premised reasons, this Court is of the opinion that this is not a fit case for exercising inherent power under Section 482 of the CrPC. Therefore, the criminal petition is dismissed and disposed of accordingly.