The Himachal Pradesh High Court clarified that the Muslim Women (Protection of Rights on Marriage) Act, 2019, only criminalizes instantaneous and irrevocable forms of talaq (divorce). The ruling provides key insight into the application of the law regarding Islamic divorce practices in India.
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SHIMLA: The Himachal Pradesh High Court recently provided a clarification regarding the application of the Muslim Women (Protection of Rights on Marriage) Act, 2019, particularly concerning the forms of talaq (divorce) that are criminalized under the law. The court held that the Act does not criminalize forms of talaq that are not instantaneous and irrevocable, bringing a critical understanding to the legal discourse surrounding Islamic divorce practices in India.
Multiple Modes of Talaq in Muslim Law
Justice Rakesh Kainthla, presiding over the case, emphasized that Islamic law does not prescribe a single mode of talaq or divorce. Instead, it offers at least three distinct methods. Among these, only
- Talaq-ul-Biddat—which is both instantaneous and irrevocable—has been criminalized under the 2019 Act.
The court clarified that other forms of talaq, specifically
- Talaq-e-Ahasan and Talaq-e-Hasan, do not fall under the criminalized category as they involve a process that is revocable and only becomes final after a stipulated period.
“The legislature has only prohibited Talaq-e-Biddat and similar forms of instantaneous and irrevocable divorce pronounced by a Muslim husband.”
– the Court observed.
Case Background and Legal Arguments
The Court was hearing a petition that sought to quash a First Information Report (FIR) registered against a Muslim man under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019. The case revolved around allegations that the husband had violated the 2019 Act by sending a written divorce to his wife, which was purported to be in the form of Talaq-e-Hasan.
The husband, facing charges of dowry demands and harassment, argued that his wife had left their matrimonial home without notice and subsequently failed to respond to his calls or messages. In light of this, he claimed that he was compelled to initiate the talaq process as per Talaq-e-Hasan. He further contended that this form of talaq is not instantaneous and is revocable, thus falling outside the purview of the 2019 Act.
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“The first Talaq notice is revocable and not instantaneous. The second notice, issued on 25.05.2022, is also revocable. The third Talaq notice included a cheque for Rs.15,000 as maintenance for the iddat period. This form of Talaq, approved by Prophet Mohammad and valid under all schools of Muslim Law, is not illegal under the Act.”
-the Court was told.
State’s Response and Court’s Analysis
However, the State opposed the petition, arguing that the wife had alleged an instance of triple talaq, where her husband had instantaneously divorced her by pronouncing talaq thrice on January 13, 2022. The police stated that the first notice of talaq was subsequently issued in April 2022, and a chargesheet had already been filed, asserting the husband’s intent to pursue triple talaq.
In reviewing the case records, the Court noted that the FIR referred to the notice issued by the husband in April 2022, but it did not confirm that the talaq had become irrevocable or had the effect of an instantaneous divorce.
“It states that the petitioner issued the first Talaq notice as required by law by pronouncing ‘Talaq’. It does not indicate that the Talaq was irrevocable or had the effect of instantaneous divorce.”
– the Court highlighted.
As a result, the Court determined that the letter or communication sent by the husband did not prima facie constitute Talaq-e-Biddat, which is the only form of talaq criminalized under the 2019 Act.
Despite these findings, the Court acknowledged that the wife had testified that her husband divorced her in January 2022 by pronouncing triple talaq. The Court emphasized that the truthfulness of this statement and its omission from the FIR would be matters for the trial court to consider.
“It was argued that this statement is incorrect as it was not made during the FIR recording. However, this argument does not aid the petitioner, as the validity of the investigation is not under review at this stage.”
-the Court noted.
Given that a chargesheet had been filed and the competent court was seized of the matter, the High Court declined to quash the FIR, ruling that it was beyond the scope of its extraordinary jurisdiction.
“Thus, quashing the FIR is not feasible under the extraordinary jurisdiction of this Court.”
– the judgment concluded.
Legal Representation
The petitioner was represented by Senior Advocate MA Khan, along with advocates Hem Kanta Kaushal and Azmat Hayat Khan. The State was represented by Deputy Advocate General Ayushi Negi, while Advocates Imran Khan and Ketan Singh represented the informant in the case.
