The Muslim Women (Protection of Rights on Marriage) Act, 2019, only criminalizes 'talaq-e-bidat' (triple talaq) characterized by instantaneous and irrevocable divorce; permissible forms of divorce under Muslim personal law, such as 'talaq-e-sunnat' (ahsan/hasan), which allow for reconciliation and a waiting period, are not penal offenses.

C.R.

O R D E R

Dated this the 15th day of July, 2022

Talaq-e- ahsan and talaq-e- hasan - two approved forms of divorce in Muslim Personal Law of India vis-à-vis talaq-e-bidat – another form declared as unconstitutional by the Apex Court in Shayara Bano v. Union of India , (2017 KHC 6574) are examined on the touchstone of the Muslim Women (Protection of Rights on Marriage) Act, 2019 in this Crl. M.C filed under Section 482 of Cr.P.C.

Prelude

2. The Muslim Personal Law administered in India recognises out-of-court divorce at the instance of both wife and husband, as well as divorce through court at the instance of the wife. The former is regulated by uncodified Muslim Personal Law, as is clear from the terms used in Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. Embodying the Islamic law of faskh, the Dissolution of Muslim Marriage, Act, 1939 provides divorce through court at the instance of the wife on fault-based grounds.

Apart from the above modes of divorce, the Muslim Personal Law also recognises divorce by mutual consent without the intervention of the court.

3. Extra-judicial divorce at the instance of the husband, in Muslim law, takes the form of talaq and extra-judicial divorce at the instance of the wife takes the form of either talaq-e-tafwiz or khula. A Muslim wife can at the time of her marriage reserve in marriage deed a right for herself to dissolve the marital tie in specified circumstances. This is called tafwiz-e-talaq (delegated divorce). A Muslim wife may obtain a release from the marital contract by giving up her settled dower; such a divorce is consequently called khula. When a divorce is effected by mutual consent, it is called mubara’at which operates as a release and discharge on both sides.

4. Though the extra-judicial power given to the husband to dissolve the marriage by the pronouncement of talaq could only be resorted to as a last resort after pre-divorce conciliation, the practice of triple talaq or talaq-e-bidat - severing the nuptial tie forthwith on its pronouncement - was prevalent among the majority of the Muslim population in the country. The Apex Court, in the case of Shayara Bano, (supra) had finally put an end to the practice declaring it to be against the ethos of the Constitution. It paved the way for the enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019 criminalising the pronouncement of triple talaq in all its forms including, electronic forms and prescribes punishment for the same.

Facts

5. The petitioner married the 1st respondent on 20/7/2015 as per Islamic rites. A girl child was born in the wedlock. Their marital bliss did not last long. Marital disputes arose and the relationship strained which resulted in the institution of various legal proceedings. On 18/4/2019, the petitioner pronounced talaq by sending the talaqnama to the 1st respondent by a registered post. Annexure A3 is the talaqnama. On 10/1/2020, the 1st respondent preferred a complaint to the Circle Inspector of Police, Perumbavoor alleging that the talaq pronounced by the petitioner vide Annexure A3 talaqnama is triple talaq prohibited by the Muslim Women (Protection of Rights on Marriage) Act, 2019. Annexure A2 is the complaint. On the basis of the said complaint, the Perumbavoor police registered a crime against the petitioner for the offences under Sections 3 and 4 of the Muslim Women (Protection of Rights on M