The court held that the talaq pronounced was not instantaneous and irrevocable, thus not constituting an offence under the Act, as it failed to meet legal requirements.

ORDER :

The accused in C.C.No.976/2022 on the files of the Judicial First Class Magistrate Court-II, Kannur, seeks quashment of the said case in this petition filed under Section 482 of the Code of Criminal Procedure. The respondents herein are wife of the petitioner and State of Kerala, respectively.

2. Heard the learned counsel for the petitioner and the learned counsel appearing for the 1st respondent. The learned Public Prosecutor was also heard.

3. In the instant case, Crime No.390/2022 was registered by the Kannur City Police on 6.8.2022, as per Annexure A1 FIR on the allegation that the petitioner committed offence punishable under Section 3 r/w Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 (for short, ‘the Act, 2019’ hereinafter).

Thereafter, investigation completed and final report filed as Annexure A2 alleging commission of the above offence by the petitioner, who is arrayed as the sole accused therein.

4. The trial court took cognizance of the matter and the same has been pending as C.C.No.976/2022 before the Judicial First Class Magistrate Court-II, Kannur, now.

5. The learned counsel for the petitioner zealously argued that as per Annexure A5, the first talaq was effected on 2.6.2022, and what was intended is talaq-e-sunnat and not talaq-e-biddat. According to the learned counsel, the last paragraph of Annexure-A5 would show that talaq would take effect after 90 days if the same would not be revoked by the husband within 90 days. It is also pointed out that though the second talaq (Annexure A6) also was pronounced on 12.6.2022, therein also same clause was incorporated. It is pointed out further that, as on 22.6.2022, the petitioner pronounced third talaq (Annexure A7), therein also power to revoke talaq was retained within 90 days. Therefore, if at all the talaq-e-sunnat attempted by the petitioner is found to be not legal for other reasons, that does not tantamount talaq-e-biddat of irrevocable nature, which is prohibited under Section 3 of the Act, 2019. Therefore, the petitioner did not commit any offence and his plea to quash the proceedings is liable to be allowed. The learned counsel placed decision of this Court in Sajid Muhammedkutty v. State of Kearla and Anr. reported in [(2024 0 Supreme (Ker) 691) : (2024 KER 56255) : (2024 0 KLT (Online) 2346) : (2024 Supreme (Online) (KER) 15366], wherein this Court addressed talaq effected by the accused therein on three occasions, viz., 23.12.2021, 13.07.2022 and 16.10.2022. In the said decision, in paragraph Nos.5 to 11, this Court discussed the issue and finally, held in paragraph No.14 and the same read as under:

“5. While resisting the said contention, the learned counsel for the defacto complainant would submit that in the instant case though talaq was pronounced on 3 separate occasions, the same would fall within the purview of instantaneous talaq prohibited under the Act, 2019, as the pre-conditions to satisfy talaq-e-sunnat, were not fulfilled. In support of this contention, he has placed decisions of this Court reported in [2010 (2) KHC 63 : 2010 (2) KLT 71 : ILR 2010 (2) Ker. 140], Kunhimohammed v. Ayishakutty, [2021 (5) KHC 582 : 2021 KHC OnLine 629 : 2021 (5) KLT 564 : ILR 2021 (4) Ker. 561 : 2021 KER 36499], Sajani A. v. Dr.B.Kalam Pasha and Anr. It is zealously argued by the learned counsel for the defacto complainant that here the prosecution allegation is that the accused herein pronounced instantaneous and irrevocable talaq and thereby liable for the penal consequences under Sections 3 and 4 of the Act, 2019 and the said allegation is specifically made out.

6. As per Section 3 of the Act, 2019, any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal. Section 4 provides that any Muslim husband, who pronounces talaq referred to in Section 3 upon his wife shall be punished with imprisonment for a term which m