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2024 Supreme(Online)(KER) 15366
HIGH COURT OF KERALA
A. BADHARUDEEN, J
SAJID MUHAMMEDKUTTY – Appellant
Versus
STATE OF KERALA – Respondent
Crl.MC 6383/2023
ALIAS M.CHERIAN, K.M.RAPHY, BRISTO S PARIYARAM, AMEERA JOJO, MINNU DARWIN, PUBLIC PROSECUTOR, Abdul Jaleel P.M, T.V.SHAJI(K/131/2005), K.N.MUHAMMED THANVEER(K/529/2014), K.SHAMEER MOHAMMED(K/158/2008), ARUNIMA.T.S.(K/1599/2023), ALTHAF AHMED ABDU(K/002945/2023), PUBLIC PROSECUTOR SRI M P PRASANTH
The court established that a talaq must be both instantaneous and irrevocable to attract penalties under the Act; otherwise, it may not constitute an offense.
Headnote:
[Talaq] - [Criminal Procedure] - [Sections 3, 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019] - [The court interpreted Sections 3 and 4 of the Act, determining that the accused's pronouncement of talaq was not instantaneous and irrevocable, thus not constituting an offense under the Act. The court emphasized the necessity of intention and compliance with legal prerequisites for valid talaq.]
Fact of the Case:
The accused sought to quash proceedings against him for allegedly pronouncing instantaneous and irrevocable talaq on his wife, claiming instead that he had pronounced talaq-e-sunnat, which is legally permissible.
Finding of the Court:
The court found that the talaq pronounced by the accused did not meet the criteria for instantaneous and irrevocable talaq as defined under the Act, thus no offense was made out.
Issues: Whether the talaq pronounced by the accused constituted instantaneous and irrevocable talaq under Sections 3 and 4 of the Act, warranting criminal liability.
Ratio Decidendi: The court held that for a talaq to be classified as instantaneous and irrevocable, it must be pronounced with the intention to do so, and the absence of compliance with necessary preconditions negates such classification.
Final Decision: The proceedings against the accused were quashed.
This criminal miscellaneous case has been filed under Section 482 of the Code of Criminal Procedure, by the sole accused in C.C.No.32/2023 on the files of Judicial Magistrate of First Class, Kodungallur, arising out of Crime No.838 of 2022 of Mathilakom Police Station, Thrissur, and the prayers are as under :
- “i.To quash Annexure A1/final report in C.C.No.32/2023 on the file of Judicial First Class Magistrate Court, Kodungallur.
- ii.To permit the petitioner from personally pressent for the trial of the case in C.C.No.32 of 2023 on the file of Judicial First Class Magistrate Court, Kodungallur and permit the petitioner to conduct the case through his counsel.
- iii.To grant such other relief which are deem fit and proper in the circumstances of the case.”
2.Heard the learned counsel for the petitioner, the learned counsel for the defacto complainant and the learned Public Prosecutor at length. Perused the relevant documents and the decisions cited by them.
3.Here the prosecution alleges commission of offence punishable under Sections 3 r/w 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 (`Act, 2019’ for short hereafter), by the accused. The allegation is that the petitioner/accused herein pronounced instantaneous and irrevocable talaq upon his wife/the defacto complainant and thereby committed the above offence.
4.While seeking quashment of the proceedings on the ground that the offence is not made out, prima facie, it is submitted by the learned counsel for the petitioner that in this matter there is no instantaneous talaq or talaq-e-biddat of irrevocable nature since the petitioner pronounced talaq periodically on 23.12.2021, 13.07.2022 and 16.10.2022 and the form of talaq pronounced by the petitioner is talaq-e-sunnat., which is legally permissible. The learned counsel for the petitioner placed decisions of this Court reported in [ 2022 (5) KHC 50 : 2022 KHC OnLine 532 : 2022 (4) KLT 659 : 2022(3) KLJ 537], Jahfer Sadiq E.A & anr. v. Marwa & anr. , to contend that once the talaq is not instantaneous and irrevocable, it could not be said that offence under Sections 3 r/w 4 of the Act, 2019 would attract.
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 upon his wife shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine for pronouncement of talaq stated under of the Act, 2019. Section 2(c) of the Act, 2019 defines talaq mentioned in Sections 3 and 4. As per Section 2(c), `talaq’ means, talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband. Thus it is emphatically clear that in order to attract punishment provided under and to treat pronouncement of talaq
