Only instant triple talaq is barred, not Talaq-e-Ahsan: Bombay High Court quashes FIR against Muslim man

The Bombay High Court on Wednesday clarified that the Muslim Women (Protection of Rights on Marriage) Act, 2019, which criminalises instant triple talaq, applies only to the practice of instantaneous and irrevocable divorce known as Talaq-e-bidat and it does not apply to the traditional method of divorce under Islam known as 'Talaq-e-Ahsan' [Tanveer Ahmed and Ors v State of Maharashtra]..The Court made this ruling while quashing a police case filed against a Muslim man and his parents under the Act that prohibits instant Triple Talaq. The man had divorced his wife by following the Talaq-e-Ahsan method under which Talaq is pronounced once followed by a waiting period of 90 days for the divorce to take effect. The same is still a legal means for divorce under Islamic law.Despite that, a First Information Report (FIR) was registered accusing him and his parents of violating the 2019 Act.A Bench of Justice Vibha Kankanwadi and Justice Sanjay Deshmukh noted that the form of divorce in this case did not fall under the prohibited category. “When the facts are admitted and taking into consideration the law, what was prohibited was the Talaq-e-bidat and not Talaq-e-Ahsan, It would be an abuse of process of law, if the applicants are asked to face the trial and therefore, case is made out for quashment of the FIR and the proceedings,” the Court said..The couple had married in 202 and lived together in different cities in India for a few months. After facing marital disagreements, the husband pronounced a single talaq in December 2023 in the presence of witnesses and followed it up with a formal notice. The couple did not resume cohabitation during the 90-day waiting period thereby, making the divorce effective under Muslim personal law.The wife later filed an FIR at the Bhusawal Bazar Peth Police Station in Jalgaon claiming that the divorce was illegal under the 2019 Act as the divorce was irrevocable. She also alleged that her in-laws were part of the decision and should be held equally responsible..The husband argued in court that he had followed the Talaq-e-Ahsan method which is not the same as Talaq-e-Bidat (instant triple talaq). His lawyers referred to earlier court rulings that had recognised Talaq-e-Ahsan as a valid and accepted form of divorce in Muslim personal law. The in-laws also said they had no role in the decision.Opposing this, the wife argued that the divorce was still "irrevocable" and therefore, should be considered illegal under the Act and the matter should go to trial.However, the High Court disagreed. .It said that the law was clearly aimed at banning only those divorces that happen instantly, without any chance of reconciliation.Further, it cannot be directed at in laws, the Court said.“In fact, if this FIR is to be construed to Section 4 of the said Act, then it is restricted against husband only.”The Court also rejected the use of section 34 of the Indian Penal Code, which deals with shared criminal intention.“There is no question of Section 34 of Indian Penal Code involved in such FIRs. There cannot be a common intention of pronouncement of Talaq,” the Bench made it clear.Crucially, the Court referred to the definition of “talaq” in the 2019 law, which applies to divorces that are instantaneous and irrevocable. The Court explained that other forms of talaq like Talaq-e-Ahsan do not fall under this definition..The Court also noted that even in the FIR, it was stated that the husband had followed the Talaq-e-Ahsan method and had sent a formal notice, which aligned with the established process.Hence, it quashed the FIR and the criminal case that had been pending before the Bhusawal court..Advocate SS Kazi appeared for the husband and his parents.Additional Public Prosecutor AD Wange appeared for the State.Advocates Shaikh Mohammad Naseer A and Shaikh Mudassir Abdul Hamid appeared for the wife..[Read Order]