ORDER

% 19.01.2023 By way of the present petition filed under section 482 of the Code of Criminal Procedure 1973, the petitioner who is the former husband of the complainant/respondent No. 2, seeks quashing of case FIR No. 580/2018 dated 12.11.2018 registered under sections 498-

A/406/506/34 of the Indian Penal Code 1860 (‘IPC’) at P.S.: Kalyan Puri.

2.The petition is premised on Settlement Deed dated 27.10.2021; and Divorce Decree dated 28.05.2022. No appeal is stated to have been carried from the divorce decree.

3.The petition is also supported by affidavits of both the petitioner, as also of respondent No. 2, alongwith proofs of their I.Ds.

4.In response to a query raised on the last date, learned counsel for the petitioner has placed on record a copy of judgment dated 28.05.2022 whereby the learned Principal Judge, Family Courts, East District, Delhi has decreed that the marriage between the petitioner and respondent No.2 has been dissolved as per the Dissolution of Muslim Marriages Act 1939, by mutual consent with effect from 28.05.2022.

5.Furthermore, in answer to the query as to whether a divorce by mutual consentbywayofmubaraatisvalidinlaw,Ms.Rupali Bandhopadya, learned ASC (Criminal) appearing for respondent No.1 draws attention to para22 of the verdict of the Supreme Court in Mst. Zohara Khatoon vs. Mohd. Ibrahim 1 , which inter-alia holds as under :<br/>

“ 22. Inthesecircumstancesweare,therefore,satisfiedthatthe interpretation put by the High Court on the second limb of clause (b) is not correct. This seems to be borne out from the provisions of Mahomedan law itself. It would appear that under the Mahomedan law there are three distinct modes in which a Muslim marriage can be dissolved and the relationship of the husband and the wife terminated so as to result in an irrevocable divorce:

(1) Where the husband unilaterally gives a divorce according to any of the forms approved by the Mahomedan law viz. talak ahsan, which consists of a single pronouncement of divorce during tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat; or talak ahsan which consists of three pronouncements made during the successive tuhrs, no intercourse taking place between three tuhrs; and lastly talak-ul-bidaat or talak-i-badai which consists of three pronouncements made during a single tuhr either in one sentence or in three sentences signifying a clear intention to divorce the wife, for instance, the husband saying “I divorce thee irrevocably” or “I divorce thee, I divorce thee, I divorce thee”. The third form referred to above is however not recognised by the Shiah law. In the instant case, we are 1 (1981) 2 SCC 509 concerned with the appellant who appears to be a Sunni and governed by the Hanafi law (vide: Mulla's Principles of Mahomedan Law, § 311, p.

297).

A divorce or talaq may be given orally or in writing and it becomes irrevocable if the period of iddat is observed though it is not necessary that the woman divorced should come to know of the fact that she has been divorced by her husband.

(2) By an agreement between the husband and the wife whereby a wife obtains divorce by relinquishing either her entire or part of the dower.

This mode of divorce is called ‘khula’ or mubarat.This form of divorce is initiated by the wife and comes into existence if the husband gives consent to the agreement and releases her from the marriage tie. Where, however, both parties agree and desire a separation resulting in a divorce, it is called mubarat. The gist of these modes is that it comes into existence with the consent of both the parties particularly the husband because without his consent this mode of divorce would be incapable of being enforced. A divorce may also come into existence by virtue of an agreement either before or after the marriage by which it is provided that the wife should be at liberty to divorce herself in specified contingencies which are of a reasonable nature