High Court · 2025

Legal Reasoning

appln-2559-2024.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.2559 OF 20241.Tanveer Ahmed s/o Sadik PatelAge: 30 years,Occu.: Private Service,R/o.203, Shirin Apartment, Shivaji Nagar,Jalgaon, District Jalgaon,Presently residing at Main Road,Shrinidhi.2.Sadik Ahamad s/o Ibrahim PatelAge: 59 years, Occu.: Retired R/o.203, Shirin Apartment, Shivaji Nagar,Jalgaon, District Jalgaon.3.Zohra w/o Sadik PatelAge: 51 years, Occu.: Service,R/o. 203, Shirin Apartment,Shivaji Nagar, Jalgaon,District Jalgaon. .. ApplicantsVersus1.The State of MaharashtraThrough its Police Inspector,Bhusawal Bazar Peth Police Station,District Jalgaon.2.Bushra d/o Feroz Abdul Salam DeshpandeAge: 28 years, Occu.: Private Service,R/o. Ekta Colony, Green Park Gate,Galli No.1 Behind Dr. Izhar Hospital,Khadke Road, Bhusawal, Dist. Jalgoan... Respondents…Mr. S. S. Kazi, Advocate for the applicants.Mr. A. D. Wange, APP for respondent No.1/State.Mr. Shaikh Mohammad Naseer A. and Mr. Shaikh Mudassir Abdul Hamid,Advocate for respondent No.2.... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ. RESERVED ON : 13 MARCH 2025 PRONOUNCED ON : 23 APRIL 2025[1] appln-2559-2024.odtORDER (Per Smt. Vibha Kankanwadi, J.) :-.Present application has been filed initially for quashing the FIRvide Crime No.124 of 2024 dated 15.04.2024 registered with BhusawalBazar Peth Police Station, District Jalgaon and later on, by way ofamendment, for quashing the proceedings in Regular Criminal CaseNo.1156 of 2024 pending before the learned Judicial Magistrate FirstClass, Bhusawal for the offences punishable under Section 4 of MuslimWomen (Protection of Rights on Marriage) Act, 2019 (hereinafterreferred to as “the said Act”) and under Section 34 of Indian Penal Code.2.Heard learned Advocate Mr. S S. Kazi for the applicants, learnedAPP Mr. A. D. Wange for respondent No.1/State and learned AdvocateMr. Shaikh Mohammad Naseer A. for respondent No.2. 3.Learned Advocate appearing for the applicants submits thatapplicant No.1 is the son of applicant Nos.2 and 3. Applicant No.1 gotmarried to respondent No.2 as per Muslim rites and customs on31.10.2021 at Bhusawal, Jalgaon. Respondent No.2 and applicant No.1resided with applicant Nos.2 and 3 at Jalgaon for about two weeksthereafter and then they went to Belapur, Navi Mumbai, where applicantNo.1 was serving. Since November 2021 to April 2022 they residedthere. Thereafter, as respondent No.2 was pregnant, she went to herfather’s house at Bhusawal and then applicant No.1 took her to hospital[2] appln-2559-2024.odtat Khargar on 26.04.2022 for checkup. Respondent No.2 was advisedto undergo Sonography. It was found that there was bleeding torespondent No.2 and taking into consideration her health condition,applicant Nos.2 and 3 as well as the father of respondent No.2 werecalled. Father of respondent No.2 took her on 28.04.2022 to Bhusawal.The gynecologist at Bhusawal advised 15 days bed rest to respondentNo.2. Respondent No.2 without taking the opinion of the applicants, asper the advise of another doctor, terminated the pregnancy. On17.06.2022, respondent No.2 and her brother met with an accident inwhich she suffered serious head injury. It culminated into brainhemorrhage. She was under treatment at various hospitals till27.12.2022. In the meantime, the corona pandemic started and applicantNo.2 was detected positive. They could not meet respondent No.2. Allthe medical expenses have been borne by applicant No.2 as he was incontinuous touch with respondent No.2. Applicant No.1 was transferredto Banglore in the month of February 2023. He had taken respondentNo.2 along with him. During Diwali when applicant Nos.2 and 3 joinedthem at Banglore, respondent No.2 misbehaved with them andtherefore, they went back to Jalgaon. The father of respondent No.2was called and he had given assurance that respondent No.2 wouldbehave properly, but respondent No.2 had given threat that she wouldcommit suicide if she is not permitted to go to his father’s house. Thus,[3] appln-2559-2024.odtthe differences went grim and therefore, applicant No.1 was constrainedto pronounce a single divorce i.e. Talaq-e-Ahsan on 23.12.2023 inpresence of witnesses. Thereafter, he had sent a notice of Talaq byregistered post on 28.12.2023. Thereafter, there was no cohabitation orjoining of the husband and wife for 90 days and, therefore, as perMuslim customs and Shariyat Law, it became irrevocable and ultimately,there is a Talaq between them. This mode of Talaq is not punishableunder Section 4 of the said Act and, therefore, the FIR in question andthe proceedings is an abuse of process of law, which needs to bequashed and set aside. 4.Learned Advocate appearing for the applicants relies on thedecision in Mst. Zohara Khatoon Vs. Mohd. Ibrahim, [(1981) 2 SCC509]. Though the said decision is in respect of Section 125 of the Codeof Criminal Procedure, yet it considers the law of divorce, which saysthat the dissolution is by way of three modes i.e. the decree ofdissolution of marriage obtained through Court, the divorce by unilateralact of husband and the Khula given by the Mohammedan wife. Hefurther relies on the decision of the Division Bench of this Court inShaikh Taslim Shaikh Hakim Vs. State of Maharashtra and another,[2022 SCC OnLine Bom 757], wherein after taking note of the decisionin Zohara Khatoon’s case (Supra), the said way of getting the marriagedissolved was accepted. Reliance was placed on paragraph No.22 of[4] appln-2559-2024.odtZohara Khatoon’s case in this matter. He also relies on the SingleBench decision of Kerala High Court at Ernakulam in Jahfer Sadiq E.A.Vs. Marwa and Ors, [MANU/KE/2191/2022], wherein it is held thatTalaq-e-Ahsan and Talaq-e-Hasan are the two approved forms of divorcein muslim personal law of India. What has been declaredunconstitutional by the Hon’ble Apex Court in Shayara Bano Vs. Unionof India, [MANU/1031/2017] is Talaq-e-bidat i.e. pronouncement of thewords of divorce thrice in single sitting. After taking note of the MuslimPersonal Law, the Kerala High Court has opined that Talaq-e-Ahsan isnot barred or made unconstitutional.5.Learned APP and learned Advocate for respondent No.2 opposedthe application and submit that the facts in the case, especially thestatements of witnesses would show that the irrevocable Talaq has beengiven which is barred and held to be unconstitutional by the Hon’bleApex Court in Shayara Bano’s case (Supra) and therefore, let there betrial. The Trial Court would be the best forum where it can be consideredas to which kind of Talaq has been pronounced. 6.Before we proceed further, important point to be noted is that thepresent FIR is not registered for the offence punishable under Section498-A of Indian Penal Code or any other Sections. Even now after thenotice was served to respondent No.2, no argument has been made on[5] appln-2559-2024.odther behalf that the police have failed to register the offence underSection 498-A of Indian Penal Code. The FIR is for the offencepunishable under Section 4 of the said Act. In fact, if this FIR is to beconstrued to Section 4 of the said Act, then it is restricted againsthusband only. The father-in-law and mother-in-law cannot be included insuch offence. There is no question of Section 34 of Indian Penal Codeinvolved in such FIRs. There cannot be a common intention ofpronouncement of Talaq. Therefore, even at this stage also, we can saythat it would be an abuse of process of law if the matter is asked to beproceeded for the offence punishable under Section 4 of the said Actagainst the father-in-law and mother-in-law. 7.Section 4 of the said Act provides for pronouncement of Talaq.Any muslim husband, who pronounces Talaq referred to in Section 3upon his wife shall be punished with imprisonment for a term which mayextend to three years and shall also be liable to fine. For this purpose,we will have to consider the definition given in Section 2(c) of word‘Talaq’. The said Section 2(c) defines word ‘Talaq’ means ‘Talaq-e-biddat’ or any other similar form of Talaq having the effect ofinstantaneous or irrevocable divorce pronounced by the Muslimhusband. Section 3 provides any pronouncement of Talaq by a Muslimhusband upon his wife, by words, either spoken or in electric form or inany other manner whatsoever, shall be void and illegal. Therefore, for[6] appln-2559-2024.odtSection 3 also the definition that has been given in Section 2(c) of thesaid Act will have to be considered. Once again, if we consider Section2(c) of the said Act, then Talaq means Talaq-e-biddat or any other formof Talaq, which is having instantaneous effect or irrevocable effect of thepronouncement. All other forms of Talaq were not prohibited or barredand, therefore, the Single Bench of Kerala High Court has, therefore,considered Talaq-e-Ahsan and Talaq-e-Hasan as well as Talaq-e-biddat.Tala-e-biddat in short was the practice of pronouncement of triple Talaqi.e. thrice the words to be uttered, “I divorce you” at one go. Certainly,we are required to consider the three Judge Bench decision in ZoharaKhatoon (Supra) which has been taken note of i.e. paragraph No.22thereof in the Coordinate Bench decision in Shaikh Taslim ShaikhHakim (Supra), wherein three distinct modes of bringing a Muslimmarriage to dissolution were considered. Here, we cannot consider onlythe irrevocable effect. What has been described in the definition of Talaqis instantaneous and irrevocable. Here, in the FIR itself, respondent No.2has stated that the notice which applicant No.1 had given on 28.12.2023,had stated that what was given to her was Talaq-e-Ahsan i.e. onepronouncement of Talaq. Even the statements of witnesses are on thesame line. In the charge-sheet itself, the copy of the said notice dated23.12.2023 has been given wherein it is written that he was pronouncingone Talaq i.e. Talaq-e-Ahsan as per Shariyat. Thereafter, it appears that[7] appln-2559-2024.odtthe final Talaqnama has been given on 24.03.2024, wherein it wasmentioned that after 23.12.2023 within 90 days, neither respondent No.2had resumed cohabitation and there was no resumption of physicalrelations between them. The legal effect of Talaq-e-Ahsan has come intoplay. When the facts are admitted and taking into consideration the law,what was prohibited was the Talaq-e-bidat and not Talaq-e-Ahsan, itwould be an abuse of process of law, if the applicants are asked to facethe trial and therefore, case is made out for quashment of the FIR andthe proceedings. Hence, the following order :-ORDERI)Criminal Application stands allowed.II)The FIR vide Crime No.124 of 2024 dated 15.04.2024registered with Bhusawal Bazar Peth Police Station, DistrictJalgaon as well as the proceedings in Regular Criminal CaseNo.1156 of 2024 pending before the learned Judicial MagistrateFirst Class, Bhusawal for the offences punishable under Section 4of the said Act and under Section 34 of Indian Penal Code, standquashed and set aside as against the present applicants.[ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ] JUDGEJUDGEscm[8]