#talaqeahsan

[seemabhatnagar]

Unraveling Talaq: A Legal Duel Between Tradition and Reform

Javed Naseem v. The State of Madhya Pradesh and Afreen Shaheed

Before the High Court of Madhya Pradesh at Jabalpur

Criminal Misc. Case 8056/2024

Subject Triple Talaq

Heard by Hon’ble Mr. Justice G S Ahluwalia J

Order The High Court dismissed the petition of the Husband on March 20, 2024. From the manner and conduct of the Petitioner-husband, it was evident that his intention was for irrevocable Talaq i.e. Talaq-e-Biddat and he very cleverly took the shield of Talaq-e-Ahsan by sending a registered post to his wife Afreen that if he comes within three months from the date of pronouncement, he would accept her otherwise Talaq would be Final and Operative and the relationship between them would come to an end.

Background

Respondent Afreen Shaheed married Javed Naseem in April 2017. She received a Talaqnama signed by the petitioner-husband Javed Naseem along with signature of 2 witnesses Mirza Karim Baig & Rahim Mirza on it with date reflecting as 09.10.2022 & 2.01.2023.

As per the averment of the Respondent she was given talaq as she had given birth to a girl child and had not fulfilled the demand of dowry.

Her husband, Rahim Mirza, and her mother-in-law also came to her paternal home and gave triple Talaq to her and also gave a copy of Fatwa dt 19.07.2023 of Mufti Raees who also held the Talaq as correct.

Respondent Afreen lodged an FIR against her husband, mother-in-law, sister-in-law, and Rahim Baig and Mirza Karim Baig.

In retaliation the husband Javed Naseem filed a present criminal petition invoking the inherent power of the High Court to quash the FIR and the consequent proceeding arising out of it.

Submission of the Counsel for the Respondent-Wife

Section 4 of the Muslim (Protection of Rights on Marriage) Act 2019 provides that any pronouncement of Talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or any manner whatsoever shall be void and illegal.

Submission of the Counsel for the Petitioner-Husband

The Counsel for the Petitioner contended that the petitioner had sent the Talaq-e-Ahsan by registered post on 30.1.2023 and Talaq-e Ahsan is a recognized mode of divorce under Muslim Law.

The Talaq-e-Ahsan does not have an instantaneous effect Talaq and it becomes operative only after the passing of three Menstrual cycle of the wife, therefore, it is not covered under the definition of section 2(c) of the 2019 Act.

Even after giving Talaq-e-Ahsan the husband can always withdraw the same prior to coming into force of the said Talaq.

Legal Provisions

‘Talaq’ as defined under section 2©which means talaq-e-biddat or any other similar form of talaq having the effect of irrevocable divorce pronounced by a Muslim husband.

Section 3 provides that “any pronouncement of Talaq by a Muslim husband to his wife, by words, either spoken or written or in electronic form or in any other manner would be void and illegal”.

Observation of the Court

Talaq-e-biddat is instantaneous talaq which becomes operational immediately. Whereas Talaq-e-Ahsan is revocable Talaq and it becomes operational after three menstrual cycles.

The object of the Muslim Act 2019 was to safeguard the interest of the Muslim Women from the Wrath of the Muslim Husband by pronouncing Triple Talaq at their whims.

The Talaq-e-Ahsan was written in such a form as if it was putting pressure on the Respondent Wife to come back home within three months otherwise after the expiry of the three months or the period of iddah aforesaid period Talaq will become final and irrevocable.

The husband has already expressed his irrevocable divorce to the respondent wife and has made it conditional that only if the respondent wife comes back to her matrimonial house then he would take her in kindness.

Merely because the applicant has sent Talaq-e-Ahsan with a condition that would not take his case out of the purview of section 2(c) of the 2019 Act because the applicant has already expressed his intention to grant irrevocable talaq to respondent No.2. Such a Talaq-e-Ahsan sent by the applicant is contrary to the objects of the 2019 Act.

Talaq-e-Ahsan was sent by registered post on 30.1.2023 to be in operation after three menstrual cycles.

But the husband and his mother even before the expiry of the three months came home of the Respondent Wife & gave Talaq-e-Biddat by pronouncing Talaq thrice.

Talaq-e-Ahsan had not become operative as Talaq-e-Biddat was given to the Respondent wife who made an offence against the petitioner.