Shanoob Mamalaparambil Sherrief v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH THURSDAY, THE 27[TH] DAY OF OCTOBER 2022/5TH KARTHIKA, 1944** **CRL.MC NO. 6312 OF 2022** **Crime No.8/2022 of Kunnathunadu Police Station** **PETITIONER/ACCUSED:** SHANOOB MAMALAPARAMBIL SHERRIEF AGED 33 YEARS S/O LATE M M SHERRIEF, PERMANENTLY RESIDING AT C.C.NO. XII/ 1459-E, PANAYAPALLY, THOPPUMPADY P.O., KOCHI -682005; AND NOW TEMPORARILY RESIDING AT FLAT NO.203, AI-RADHI TOWER, AI-NAHDA, SHARJAH, UAE REPRESENTED BY HIS POWER OF ATTORNEY HOLDER ZAINUDHEEN M.M., AGED 50 YEARS, S/O MACKAR, RESIDING AT MAMALAPARAMBIL HOUSE, HOUSE NO.13/256, KOCHANGADI, KOCHI 682002. BY ADV D.LEEMA ROSY ## **RESPONDENTS:** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 ABDUL SALAM K.K AGED 67 YEARS S/O K.P. KOCHUNNY, KARUVAKKATTU HOUSE, AMBALAPPADY, KUMARAPURAM P.O. ERNAKULAM., PIN - 683565 3 SHAMNA SALAM AGED 30 YEARS D/O. ABDUL SALAM K.K., KARUVAKKATTU HOUSE, AMBALAPPADY, KUMARAPURAM P.O. ERNAKULAM-683565, PIN – 683565 BY ADVS.M.A. AHAMMAD SAHEER MUHAMMED YASIL M.M.ALIYAR ## **OTHER PRESENT:** SRI G SUDHEER- Public Prosecutor THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.M.C.No.6312 of 2022 ..2.. ## **ORDER** This Crl.M.C. has been filed to quash all further proceedings in Annexure-B final report in Crime No.8/2022 of Kunnathunadu Police Station. 2. The petitioner is the accused. The 2[nd] respondent is the de facto complainant. The 3[rd] respondent is the wife of the petitioner. 3. The offences alleged against the petitioner are punishable under Sections 3 and 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 (for short, 'the Act'). 4. Admittedly, the petitioner married the 3[rd] respondent on 6.9.2015 as per Muslim rites **.** The petitioner divorced the 3[rd] respondent by pronouncing talaq. After the pronouncement of talaq, the 3[rd] respondent preferred a complaint to the Station House Officer, Kunnathunadu Police Station alleging that the talaq pronounced by the petitioner is triple talaq prohibited by the Act, 2019. On the basis of the said complaint, the Kunnathunadu police registered a crime against the petitioner for the offences punishable under Crl.M.C.No.6312 of 2022 ..3.. Sections 3 and 4 of the Act, 2019. Annexure A is the FIR. Thereafter, the investigation was conducted and a final report was filed against the petitioner before the Judicial First Class Magistrate Court, Kolenchery. Annexure B is the final report. The petitioner has approached this Court to quash Annexure A FIR as well as Annexure B final report invoking Section 482 of the Cr.P.C on the ground that talaq pronounced by him is not talaq-e-bidat having the effect of instantaneous and irrevocable divorce, but talaq-e-sunnat recognized under the Muslim Personal Law and as such Sections 3 and 4 of the Act, 2019 are not attracted. 5. I have heard Smt.Leema Rosy, the learned counsel for the petitioner, Sri.M.A.Ahammad Saheer, the learned counsel for the 2[nd] and 3[rd] respondents and Sri.G.Sudheer, learned Public Prosecutor. 6. The Muslim Personal Law administered in India recognises out-of-court divorce at the instance of both wife and husband. Extra-judicial divorce at the instance of the husband in Muslim Personal Law is called talaq. The Muslim Personal Law prescribes a simple procedure for talaq keeping all Crl.M.C.No.6312 of 2022 ..4.. chances of reconciliation and reconsideration open. A talaq strictly following this procedure is talaq-e-sunnat – a proper talaq. A talaq in violation of the prescribed procedure is called talaq-e-bidat - an improper talaq. Talaq-e-sunnat is further classified into two based on degrees of virtue in respect of man's conduct – talaq-e-ahsan and talaq-e-hasan. In talaq-eahsan, the husband repudiates his wife by a single pronouncement in a period of tuhr during which he has not had intercourse with her and then leaves her to the observances of iddat. The divorce remains revocable during the period of iddat. If there is no resumption of cohabitation or intimacy during the period of iddat, then the divorce becomes final and irrevocable, after the expiry of iddat period. Talaq-ehasan consists of three pronouncements made during three tuhrs with no intercourse taking place during any of these intervals. After the first talaq, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as revoked. After the second pronouncement of talaq, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is Crl.M.C.No.6312 of 2022 ..5.. treated as revoked. If the parties are unable to unite during the period of iddat, the final irrevocable talaq can be pronounced, but only after the period of iddat. When the final talaq is pronounced, it becomes irrevocable and the marriage comes to an end. 7. The distinction between talaq-e-ahsan and talaq-ehasan is that, in the former, there is a single pronouncement of talaq followed by abstinence during the period of iddat; whereas, in the latter, there are three pronouncements of talaq, interspersed with abstinence. In both these forms, there is a chance for the party to be reconciled by the intervention of friends or otherwise. Both these forms are therefore approved forms and are recognized by Muslim law (see _**Sajani.A. v. Dr.Kalam Pasha and another**_ [2021 (5) KHC 582] and _**Jahfer Sadiq.E.A and another v. Marwa and another**_ [2022 (5) KHC 50]. On the contrary, when the husband pronounces three formulas at one time, whether the wife is in a state of tuhr or not, the separation takes place instantaneously. This is called talaq-e-bidat, more popularly known as triple talaq in India. Crl.M.C.No.6312 of 2022 ..6.. 8. Coming to the facts of the case, the complaint preferred by the 2[nd] respondent as well as the statement given by him to the police would show that the petitioner has made three pronouncements during three tuhrs. According to the 2[nd] respondent, the first pronouncement of talaq was made on 25.7.2021, the second pronouncement was made on 24.10.2021 and the third pronouncement was made on 23.12.2021. There were clear intervals in between them. There is absolutely no case for the 2[nd] respondent either in the complaint or in the statement recorded under Section 161 of Cr.P.C. that there was resumption of cohabitation within the interval period. For a valid talaq, it is also necessary that there should be an attempt of conciliation before the pronouncement of talaq. In the complaint the 2[nd] respondent has admitted that prior to the pronouncement of the first talaq there was mediation talk. In the statement given to the police, the 2[nd] respondent has specifically stated that, when the dispute arose between the petitioner and the 3[rd] respondent, a mediation was held by the mediators and the relatives. Therefore, there was an attempt of conciliation as prescribed Crl.M.C.No.6312 of 2022 ..7.. under Shariat Law and Muslim Personal Law. Thus, it is clear that what was pronounced by the petitioner is nothing but talaq-e-hasan a valid form of talaq which is permitted under the Muslim Personal Law. When talaq-e-hasan which is one of the forms of talaq-e-sunnat as permitted under the Muslim Personal Law of India is pronounced, no offence under the Act, 2019 is attracted. What was declared illegal and void by Section 3 of the Act, 2019 and made as an offence by Section 4 thereof was the pronouncement of talaq-e-bidat or any other similar form of talaq resulting in instant and irrevocable divorce. The declaration of talaq-e-sunnat either by ahsan form or by hasan form was not made penal by Section 4 of the Act, 2019. Both these forms (talaq-e-ahasan and talaq-ehasan) are still legal and valid under the Muslim Personal Law of India [see **Jahfer Sadiq** (supra)]. For the reasons stated above, I am of the view that no offences under Sections 3 and 4 of the Act, 2019 are attracted against the petitioner. Hence, no useful purpose will be served in proceeding further with the case against the petitioner. Hence, all further proceedings pursuant to Annexure-A FIR and Crl.M.C.No.6312 of 2022 ..8.. Annexure-B final report in Crime No.8/2022 of Kunnathunadu Police Station are hereby quashed. Crl.M.C. is allowed. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** skj Crl.M.C.No.6312 of 2022 ..9.. ## **APPENDIX OF CRL.MC 6312/2022** PETITIONER'S ANNEXURES Annexure A CERTIFIED COPY OF THE FIR IN CRIME NO. 8/2022 OF KUNNATHUNADU POLICE STATION Annexure B CERTIFIED COPY OF THE FINAL REPORT FILED BY THE 1ST RESPONDENT IN CRIME NO.8/2022 Annexure C THE TRUE COPY OF THE ORIGINAL PETITION NO.409/2022 FLED ON 14/02/2022. Annexure D THE TRUE COPY OF THE REPORT IN CRIME NO.08/2022 DELETING THE CHARGE UNDER SECTION 498A OF IPC.