Source: Kerala High Court 

Why in News? 

Recently, the Kerala High Court in the matter of Sajid Muhammedkutty v. State of Kerala and Another., has held that talaq-e-biddat must be pronounced with an intention of irrevocable and instant talaq and mere non-compliance of the law would not amount the same. 

What was the Background of the Sajid Muhammedkutty v. State of Kerala and Another Case? 

• In this case, the respondent filed a case before the Judicial Magistrate 1st Class against the petitioner for committing an offence under Section 3 read with Section 4 of Muslim Women (Protection of Rights on Marriage) Act, 2019 (PRM Act). 
• The respondent alleged that the petitioner performed instantaneous Talaq upon them, which amounted to Talaq –e- biddat (Tripple Talaq) and is illegal as per PRM Act. 
• It was also alleged that the respondent has performed the Talaq with the intention of irrevocable talaq as he did not attempt for reconciliation by 2 arbiters as per the laws. 
• The petitioner contented that the Talaq was performed on three dates periodically and therefore it is Talaq – e- Sunnat and is not illegal. 
• The petitioner filed the present petition before the Kerala High Court for quashing the proceedings against him. 

What were the Court’s Observations? 

• It was observed by the Kerala High Court that the very intention of talaq-e-biddat is to pronounce instant and irrevocable talaq and if the intention is not the same and there is some non-compliance with the law it would not amount to Talq-e-biddat. 
• It was further explained by the Kerala High Court that Talq – e- Sunnat when pronounced by and not completed legally. it would not automatically amount to talaq –e- biddat. 
• The High Court observed that the petitioner's intention was not to pronounce instant and irrevocable Talaq and therefore cannot be punished as per Section 4 of PRM Act. 
• The Kerala High Court allowed the petition and quashed the proceedings of the Judicial Magistrate 1st Class. 

What are the Relevant Provisions of Muslim Women (Protection of Rights on Marriage) Act, 2019? 

• Section 3: Talaq to be Void and Illegal:  
  • This section states that any pronouncement of talaq by a Muslim husband upon his wife, by words, either spoken or written or in electronic form or in any other manner whatsoever, shall be void and illegal.  
• Section 4. Punishment for Pronouncing Talaq: 
  • This section states that any Muslim husband who pronounces talaq referred to in section 3 upon his wife shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. 

What are the Landmark Judgements Cited? 

• Sajani A. v Dr. B. Kalam Pasha and Another (2021): In this case the Kerala High Court held that to infer that the divorce was not instantaneous the parties must attempt reconciliation by two arbiters chosen from the family of each party. 
• Jahfer Sadiq E.A & anr. v. Marwa & Anr. (2021): In this case it was held that if the talaq is not instantaneous and irrevocable, it could not be said that offence under Section 3 read with Section 4 of PRM Act. 

What is Talaq? 

About: 

• It is defined under Section 2(c) of PRM Act which states that talaq’ means, talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband. 

Modes of Talaq: 

• Talaq-e-Sunnat: It can be pronounced in two ways as: 
  • Talaq Hasan: 
    • This consists of three pronouncements made during successive tuhrs, no intercourse taking place during any of the three tuhrs. 
    •  The first pronouncement should be made during a tuhr, the second during the next tuhr, and the third during the succeeding tuhr. 
  • Talaq Ahsan: 
    • This consists of a single pronouncement of divorce made during a tuhr (period between menstruations) followed by abstinence from sexual intercourse for the period of iddat.  
    • When the marriage has not been consummated, a talaq in the ahsan form may be pronounced even if the wife is in her menstruation.  
    • Where the wife has passed the age of periods of menstruation the requirement of a declaration during a tuhr is inapplicable. 
    •  Furthermore, this requirement only applies to an oral divorce and not a divorce in writing. 
• Talaq-e-Biddat: 
  • This consists of three pronouncements made during a single tuhr either in one sentence like “I divorce thee thrice, or in separate sentences like “I divorce thee, I divorce thee, I divorce thee”. 
  • A single pronouncement made during a tuhr clearly indicates an intention irrevocably to dissolve the marriage like “I divorce thee irrevocably. 

Difference Between Talaq-e-Sunnat and Talaq-e- Biddat