It is definitely most interesting to note that while pronouncing its key verdict on a very significant legal point pertaining to the illegal ‘talaq-e-sunnat’, the Kerala High Court in a most learned, laudable, landmark, logical and latest judgment titled Sajid Muhammedkutty vs State of Kerala and Another in Crl.M.C. 6383 of 2023 and cited in Neutral Citation No.: 2024/KER/56255 and so also in 2024 LiveLaw (Ker) 480 that was pronounced as recently as on July 26, 2024 has minced just no words to state in no uncertain terms that if the intention is not to pronounce instantaneous and irrevocable talaq, it cannot be considered as talaq-ul-biddat. We need to note that the petitioner in his petition had sought the quashing of the proceedings that were ensuing against him before the Judicial Magistrate of the First Class. What also should not escape the focus of our eyeballs is that the respondent had accused him of committing an offence under the Muslim Women (Protection of Rights on Marriage) Act, 2019 by pronouncing instant and irrevocable talaq on her. It deserves mentioning that this criminal misc. case came up for admission on 10.07.2024.
While ruling clearly and very precisely in this pertinent judgment, the Single Judge Bench comprising of Hon’ble Mr Justice A Badharudeen of Kerala High Court while considering the Crime No.838/2022 of Mathilakom Police Station, Thrissur CC No.32 of 2023 of Judicial Magistrate of First Class, Kodungallur minced just no words to hold unequivocally that, “But when the very intention was to pronounce talaq–e–sunnat, if the talaq-e-sunnat pronounced is found to be illegal for want of compliance of the pre-requisites, then the said talaq would not become talaq–ul-biddat.” So, it is thus a no-brainer that on expected lines the Kerala High Court thus quashed the proceedings as was widely anticipated also against the petitioner that were pending before the Magistrate. Very rightly so!
At the very outset, this notable judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice A Badharudeen of Kerala High Court sets the ball in motion by first and foremost putting forth in para 1 that, “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 present for the trial of the case in C.C.No.32 of 2023 on the file of 2024/KER/56255CRL.MCNo.6383 0f 2023 3 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.”
Needless to say, the Bench states in para 2 that, “Heard the learned counsel for the petitioner, the learned counsel for the defector complainant and the learned Public Prosecutor at length. Perused the relevant documents and the decisions cited by them.”
As we see, the Bench discloses in para 3 that, “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 defector complainant and thereby committed the above offence.”
Do note, the Bench notes in para 10 that, “In Kunhimohammed’s case (supra), another Division Bench of this Court, held that before termination of Muslim marriage by unilateral pronouncement of talaq, the husband must attempt for reconciliation by two arbiters in accordance with Ayat 35 Sura IV. Attempt for reconciliation is vital. Court further held that a divorced Muslim wife’s right to claim maintenance under S.125 CrPC doesn’t stand extinguished by the enactment of the Muslim Women (Protection of Rights on Divorce) Act.”
Be it noted, the Bench notes in para 11 that, “Going by the definition of ‘talaq’ as meant under Section 2(c) of the Act, 2019, it is discernible that the talaq-e-biddat, ie. instantaneous and irrevocable talaq, is prohibited under Section 3 of the Act, 2019 and made punishable under Section 4 of the Act, 2019. But Mahomedan Law and its illustration herein would recognize the other form by name talaq-ul- sunnat. There are two types of Talaq-ul-sunnat, namely, (1) ahsan, that is, most proper, and (2) hasan, that is, proper. In the case of talaq ahsan and talaq hasan, the husband has an opportunity of reconsidering his decision and the talaq in both these cases does not become absolute until a certain period has elapsed (para.312) and the husband has the option to revoke it before then. But the talaq-ul-biddat becomes irrevocable immediately if it is pronounced (para.312). The essential feature of a talaq-ul-biddat is its irrevocability. One of tests of irrevocability is the repetition three times of the formula of divorce within one tuhr. But the triple repetition is not a necessary condition of talaq-ul-biddat, and the intention to render a talaq-irrevocable may be expressed even by a single declaration. Thus if a man says: “I have divorced you by a talaq-ul-bain (irrevocable divorce)”, the talaq is talaq-ul-biddat or talaq-i-badai and it will take effect immediately it is pronounced, though it may be pronounced but once. Here the use of the expression “bain” (irrevocable) manifests of itself the intention to effect an irrevocable divorce.”
Interestingly enough, the Bench points out in para 12 that, “Paragraph 312 of the Principles of Mahomedan Law makes it clear that a talaq in the ahsan mode becomes irrevocable and complete on the third pronouncement irrespective of the iddat period. Now the question to be considered in this case is whether the talaq effected in the present case is to be held as void or illegal having the effect of instantaneous and irrevocable divorce.”
It is worth noting that the Bench notes in para 13 that, “In the instant case, it is argued by the learned counsel for the defacto complainant that pronouncement of talaq as per Annexure A1 dated 23.12.2021 without any attempt for reconciliation by 2 arbiters in accordance with Ayat 35 Sura IV is void and is therefore instantaneous and irrevocable. Here as per Annexure A1 the first talaq was pronounced on 23.12.2021; the second talaq was pronounced on 13.07.2022, after 6 months and the third one on 06.10.2022. On perusal of the talaq pronouncement it is discernible that no attempt was made by the husband for reconciliation by 2 arbiters in accordance with Ayat 35 Sura V. In this realm, it is argued by the learned counsel for the petitioner that if at all the talaq-e-sunnat pronounced by the petitioner is invalid for non-compliance of pre-conditions, then also, it is unsafe to hold that the petitioner pronounced talaq-e-biddat, i.e instantaneous and irrevocable talaq. Thus no offence would attract. But the argument of the learned counsel for the defacto complainant is that when talaq-e-sunnat is not pronounced without complying conditions to effect talaq, the same is akin to talaq-e-biddat and, therefore, the offence would attract. Anyhow, whether talaq-e-sunnat allegedly effected in this case is void, for want of attempt to reconciliation is a question, to be decided, when such a challenge is raised and I leave the same unanswered, to be decided in an appropriate proceedings.”
Most significantly, most brilliantly and so also most forthrightly, the Bench then mandates in para 14 postulating that, “Hence the question is; whether there is instantaneous and irrevocable talaq in the present case? As discussed in the foregoing paragraphs, pronouncement of talaq-e-biddat is instantaneous and irrevocable and would definitely attract criminal culpability meted out in Sections 3 and 4 of the Act, 2019. But when the very intention was to pronounce talaq-e-sunnat, if the talaq-e-sunnat pronounced is found to be illegal for want of compliance of the pre-requisites, then the said talaq would not become talaq-e-biddat. To put it otherwise, pronouncement of talaq-e-biddat, (instantaneous and irrevocable talaq) is prohibited and punishable. But when pronouncement of talaq-e-sunnat is effected, no offence under Section 3 r/w 4 of the Act, 2019 would attract. Similarly when pronouncement of talaq-e-sunnat is attempted, but not legally completed for want of compliance of pre-requisites, the same would not tantamount to talaq-e-biddat to attract Sections 3 and 4 of the Act, 2019. That is to say, in such an instance, no talaq or divorce takes place and the marital relation will continue. This discussion leads to the conclusion that the intention of the petitioner herein was not to pronounce instantaneous and irrevocable talaq, i.e talaq-ul-biddat, which would attract penal consequences under Section 4 of the Act, 2019 and the intention was to pronounce talaq-e-sunnat. In view of the matter, it is held that the talaq pronounced by the accused in the present case is not talaq-e-biddat, ie. instantaneous and irrevocable to rope in Sections 3 and 4 of the Act, 2019. In the above circumstances, the matter requires quashment.”
Finally, the Bench then concludes by holding and directing in para 15 that, “In the result, this Crl.M.C stands allowed. Resultantly, C.C.No.32/2023 on the files of Judicial Magistrate of First Class, Kodungallur, arose out of Crime No.838 of 2022 of Mathilakom Police Station, Thrissur, shall stand quashed. Registry shall forward a copy of this order to the jurisdictional court for information and further steps.”
In a nutshell, we thus see from the afore-going discussion that it is indubitably clear that the Kerala High Court has been most unequivocal in holding that illegal ‘talaq-e-sunnat’ is not punishable as ‘triple talaq’. As the intention of the petitioner was not to pronounce ‘triple talaq’ so we see that the Kerala High Court decided to quash the proceedings that were pending against the petitioner before the Magistrate. Absolutely right!
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