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2024 DIGILAW 303 (MP)

JAVED NASEEM v. STATE OF Madhya Pradesh

2024-03-20

G.S.AHLUWALIA

body2024
ORDER : 1. This application under section 482, Cr.P.C. has been filed seeking the following reliefs: It is therefore most humbly prayed that this Hon’ble Court may kindly be pleased to exercise inherent powers under section 482, Cr.P.C. and quash the FIR dated 23-12-2023 and other consequential proceedings arising out of Crime No. 338/2023 registered at P. S. Gandhi Nagar, district Bhopal and discharge the applicant, in the interest of justice. 2. It is submitted by counsel for the applicant that respondent No. 2 lodged an FIR on the ground that she got married to Javed Naseem on 21-4-2017. On 9-10-2022 and 29-1-2023 her husband Javed Naseem has sent his self-signed Talaknama duly witnessed by Rahim Mirza and Mirza Karim Baig, copy of the said Talaknama was produced along with FIR. It was alleged that divorce has been given on account of non fulfillment of demand of dowry and on account of the fact that she has given birth to a girl child. Even otherwise, on 25-2-2023 her husband and her mother-in-law had come to her parental home along with Raheem Mirza and others and also gave triple Talaq and declared that now they do not have any relationship with the complainant. At that time, her neighbor Mehfooz Rehman was also present in the house. Her husband has also given a copy of Fatwa dated 19-7-2023 by which Mufti Rahees Ahmed Khan has also treated the said divorce as correct whereas Mufti Rahees Ahmed Khan was aware of the fact that Talaq given by her husband is illegal in the light of the provision of Muslim (Women of Rights on Marriage) Act, 2019, (hereinafter referred to as ‘the 2019 Act) according to which any pronouncement of Talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any manner whatsoever shall be void and illegal and as per section 4 of the 2019 Act such act of her husband and others shall be punishable with imprisonment for a term which may extend to three years and shall be liable to fine. Thus, it was alleged that her husband Javed Naseem, her mother-in-law Rukhsana Begum, her sister-in-law Ranu Begum, Rahim Mirza and Mirza Karim Baig, who have signed the Talaqnama as witnesses have prima facie committed an offence. On this complaint the FIR has been registered. 3. Thus, it was alleged that her husband Javed Naseem, her mother-in-law Rukhsana Begum, her sister-in-law Ranu Begum, Rahim Mirza and Mirza Karim Baig, who have signed the Talaqnama as witnesses have prima facie committed an offence. On this complaint the FIR has been registered. 3. Challenging the FIR lodged by the complainant it is submitted by counsel for the applicants that the applicant had sent the Talaq-e-ahsan by registered post on 30-1-2023. It is submitted that the said Talaq-e-ahsan is recognized mode of divorce and the Kerala High Court by judgment passed in the case of Saheer vs. State of Kerala by judgment dated 13-11-2023 passed in Crl. M.C. No. 3632/2023 has held that since Talaq is recognized form of divorce under the Muslim law, therefore, the FIR and consequential proceedings against the petitioner therein is liable to be quashed. 4. Considered the submissions made by counsel for the applicant. 5. Section 2(c) of the 2019 Act defines ‘Talaq’ which means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous or 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.” It is submitted by counsel for the applicant that says the Talaq-e-ahsan does not have instantaneous effect and becomes operative only after three Menstural cycle of the wife, therefore, it is not covered under the definition of section 2(c) of the 2019 Act. It is submitted that even after giving Talaq-e-ahsan the husband can always withdraw the same prior to coming into force of the said Talaq. 6. Considered the submissions for the parties. 7. Talaq-e-biddat is also commonly known as Triple Talaq whereas Talaq-e-ahsan can be revoked before it becomes operative. Thus, the only difference between Talaq-e-biddat and Talaq-e-ahsan is that Talaq-e-biddat will come in operation instantaneously whereas Talaq-e-ahsan will become operative after three menstrual cycles. Since the reasons and object of 2019 Act is to protect the rights of married Muslim women and to prohibit divorce by pronouning talaq by their husbands and to provide for matters connected therewith or incidental thereto. Therefore, it is necessary to consider contents of Talaq-e-ahsan sent by the applicant by registered post. Para 18 of the Talaq-e-ahsan sent by the applicant reads as under: “18. Therefore, it is necessary to consider contents of Talaq-e-ahsan sent by the applicant by registered post. Para 18 of the Talaq-e-ahsan sent by the applicant reads as under: “18. This pronouncement of Talaq Hasan is revocable during the period of Eidha, which follows hereafter, and shall continue till three menstrual cycles are completed by u., after which the pronouncement shall become absolute and divorce final and irrevocable. If you return within this idha. I shall take you in kindness and in good wishes if you, if not the marriage between us, shall dissolve and thereafter each of us would be rendered haram for the other.” 8. From the above pronouncement of Talaq-e-ahsan, it is clear that it was made is revocable during the period of iddah and shall continue till three menstrual cycles are completed by wife after which the pronouncement would become absolute and divorce would be final and irrevocable. If the wife returns within the iddah period the applicant shall take her in kindness and in good wishes if not the marriage between them shall dissolve and thereafter, each of them would be rendered haram for the other. 9. Thus, the applicant has already expressed his irrevocable divorce to the respondent No. 2 and has made it conditional that only if respondent No. 2 comes back to her matrimonial house then he would take her in kindness otherwise each of them would render Haram for other. 10. Thus, so far as Talaq-e-ahsan sent by the applicant is concerned, it is clear that in fact it is in the nature of instantaneous talaq by putting a pressure on the complainant to come back otherwise talaq would take its effect. Merely because the applicant has sent Talaq-e-ahsan with aforesaid condition 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 reasons and objects of the 2019 Act. 11. Furthermore, this Talaq-e-ahsan was sent by registered post on 30-1-2023. It was to become operative after three menstrual cycles but prior thereto the applicant along with his mother went to the parental home of respondent No. 2 and gave Talaq-e-biddat by pronouncing Talaq thrice. 12. 11. Furthermore, this Talaq-e-ahsan was sent by registered post on 30-1-2023. It was to become operative after three menstrual cycles but prior thereto the applicant along with his mother went to the parental home of respondent No. 2 and gave Talaq-e-biddat by pronouncing Talaq thrice. 12. Under these circumstances, when Talaq-e-ahsan had not become operative then giving Talaq-e-biddat to respondent No. 2 clearly makes out an offence against the applicant. 13. Accordingly, no case is made out warranting interference. 14. The application fails and is hereby dismissed.