‘Talaq-E-Sunnat’ is not instantaneous, does not equal ‘Triple Talaq’: Kerala HC withdraws case against man

The Kerala High Court has clarified that 'Talaq-E-Sunnat', which is not instant and irrevocable, cannot be classified as 'Talaq-ul-Biddat', a form of divorce that is classified under the Protection of Rights of Muslim Women Act. considered a criminal act.

The bench headed by Justice A Badharudeen, while hearing a case involving the accusation of the husband (applicant) for offenses under Sections 3 and 4 of the Act, examined the core question “Whether there is instant and irrevocable talaq in the present case” .

The petitioner challenged the proceedings against him before the First-tier Judicial Court. He faced charges of violating the Act by issuing instant and irrevocable talaq to his wife. He claimed that his statements on December 23, 2021, July 13, 2022 and October 16, 2022 were made in the form of “Talaq-E-Sunnat” permissible under the law and not in the form of “Talaq-ul -Biddat”, which form is considered illegal under the Act.

The counsel for the petitioner further argued that “Talaq-E-Sunnat” is not instant and can be reconsidered unlike “Talaq-ul-Biddat” which is instant and irrevocable. They cited previous court decisions including Jahfer Sadiq EA and anr. v. Marwa and anr. Sajani A. v. Dr. B. Kalam Pasha and Anr., in support of their contention that “Talaq-E-Sunnat” should not attract the penal provisions of the Act.

On the other hand, counsel for the de facto wife (the complainant) argued that despite the announcement of talaq on three separate occasions, the arbiter should be dismissed due to the alleged failure to satisfy the requisite conciliatory attempts required by Islamic law. Regarding talaq considered as immediate. They referred to earlier judgments including Kunhimohammed v. Ayishakutty and Sajani A. v. Dr. B. Kalam Pasha and Anr. and asserted that there were no such attempts to make talaq equivalent to “Talaq-ul-Biddat” thereby attracting the provisions of the Act criminal liability.

The court examined the definition and requirements of various forms of talaq under the Act and Islamic law. The court noted that “Talaq-E-Sunnat” allows for reconsideration and does not immediately become absolute. It emphasized that “Talaq-ul-Biddat” – immediate and irrevocable – is criminalized under Sections 3 and 4 of the Act.

“Declaration of talaq-e-biddat (immediate and irrevocable talaq) is prohibited and punishable. However, when talaq-e-sunnat is declared, any person under Section 3 r/w 4 of the Act, 2019 Neither crime is attracted, nor is it tantamount to talaq-e-biddat when an attempt is made to declare talaq-e-sunnat but it cannot be done legally due to lack of compliance with the prerequisites to attract Section 3 and 4 of the 2019 Act. Article. In this case, no talaq or divorce will occur and the marital relationship will continue to exist,” the court noted.

It further differentiates between different forms of talaq under Islamic law:

Talaq-Ahsan: Make a declaration during the period of purity (tuhr) and then abstain from sex during the period of iddat.

Talaq-Hasan: Three statements were made over the course of consecutive Tuesdays, during which there was no interaction.

Talaq-ul-Bidat: Three statements, either in one statement or separately, made during the same Tuesday period, or a single statement indicating an irrevocable divorce.

The court confirmed that “Talaq-E-Sunnat” allows reconsideration and does not become absolute until a certain period has elapsed. It ruled that incomplete or improperly executed “Talaq-E-Sunnat” will not be converted into “Talaq-ul-Biddat”.

The court concluded that talaq meaning “Talaq-E-Sunnat” is not equivalent to “Talaq-ul-Biddat” even if it is found illegal because it does not meet certain requirements. The court held that the intention of the petitioner was to pronounce “Talaq-E-Sunnat” and, therefore, the proceedings based on the claim of “Triple Talaq” were without merit.

As a result, the court dismissed the proceedings against the petitioner.