Are all forms of talaq illegal under triple talaq law? Himachal Pradesh High Court answers

The Himachal Pradesh High Court recently held that Muslim Women (Protection of Rights on Marriage) Act, 2019 does not criminalise those forms of talaq which are not instantaneous and irrevocable..Justice Rakesh Kainthla noted that the Muslim law does not provide a single mode of talaq or divorce but at least three modes out of which only Talaq-ul-Biddat has the effect of being instantaneous and irrevocable.On such instantaneous and irrevocable modes of talaq have been prohibited by law. “The legislature has only prohibited Talaq-e-Biddat or any other similar form of Talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband,” the Court said.The other forms are talaq are Talaq-e-Ahasan or Talaq-e-Hasan where the pronouncement of divorce by husband becomes effective only after a certain period of time..The Court was hearing a petition seeking quashing of a first information report (FIR) registered against a Muslim man under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.In the present case, the husband was accused of dowry demand and harassing his wife. On April 25 in 2022, he is alleged to have sent a written divorce to the wife. In the criminal case, it was alleged that the same was violative of the 2019 Act..Challenging the criminal proceedings, it was argued that the wife had left the matrimonial home without informing anyone and failed to respond to the husband’s calls or messages after that. Accordingly, the husband said, he was left with no other option but to send the first communication of talaq as per Talaq-e-Hasan.“The first notice of Talaq is not instantaneous but is revocable. The second notice of Talaq was issued on 25.05.2022, which is again revocable. The third pronouncement of Talaq was sent along with the cheque of ₹15,000 as maintenance for the iddat period. This form of Talaq is approved by Prophet Mohammad and is valid according to all schools of Muslim Law. This Talaq has not been made illegal under the Act,” the Court was told..However, the State argued that the wife has made a statement that the husband called her into a room and gave her instant divorce by pronouncing talaq thrice on January 13 in 2022. It was thereafter the first notice of talaq was issued in April 2022, the Police said.Opposing the quashing of the case, the police said a chargesheet has already been filed. It was also submitted that the accused himself had informed her neighbour about triple talaq..From the record, the Court found that the First Information Report (FIR) refers to the notice issued by the husband in April 2022. “It reads that the petitioner conveyed the first communication of Talaq as required by law by pronouncing the word ‘Talaq’. It nowhere mentions that the Talaq had become irrevocable or it had the effect of instantaneous divorce,” it said..Thus, the Court said the letter or communication sent by the husband prima facie does not fall within the definition of Talaq-e Biddat which is punishable under the 2019 law.However, the Court also said that the wife has made a statement that her husband had divorced her in January 2022 itself by pronouncing triple talaq. It added that the question of why it was not mentioned in the FIR is to be seen during the trial.“It was submitted that this statement is incorrect as no such statement was made while recording the FIR. This submission will not help the petitioner. The truthfulness or otherwise of the investigation is not to be seen at this stage.”.Since the chargesheet stood filed in the matter, the Court said the competent court is seized of the matter.“Therefore, it is not possible to quash the FIR in the exercise of the extraordinary jurisdiction of this Court,” it said while rejecting the plea..Senior Advocate MA Khan with advocates Hem Kanta Kaushal and Azmat Hayat Khan represented the petitioner.Deputy Advocate General Ayushi Negi represented the State.Advocates Imran Khan and Ketan Singh represented the informant.[Read Judgment]