2025:BHC-AUG:11620-DB

appln-2559-2024.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPLICATION NO.2559 OF 2024

1. Tanveer Ahmed s/o Sadik Patel

Age: 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 Patel
Age: 59 years, Occu.: Retired
R/o.203, Shirin Apartment, Shivaji Nagar,
Jalgaon, District Jalgaon.
3. Zohra w/o Sadik Patel
Age: 51 years, Occu.: Service,
R/o. 203, Shirin Apartment,
Shivaji Nagar, Jalgaon,
District Jalgaon. .. Applicants
Versus
1. The State of Maharashtra
Through its Police Inspector,
Bhusawal Bazar Peth Police Station,
District Jalgaon.
2. Bushra d/o Feroz Abdul Salam Deshpande
Age: 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

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ORDER (Per Smt. Vibha Kankanwadi, J.) :-

. Present application has been filed initially for quashing the FIR

vide Crime No.124 of 2024 dated 15.04.2024 registered with Bhusawal

Bazar Peth Police Station, District Jalgaon and later on, by way of

amendment, for quashing the proceedings in Regular Criminal Case

No.1156 of 2024 pending before the learned Judicial Magistrate First

Class, Bhusawal for the offences punishable under Section 4 of Muslim

Women (Protection of Rights on Marriage) Act, 2019 (hereinafter

referred to as “the said Act”) and under Section 34 of Indian Penal Code.

2. Heard learned Advocate Mr. S S. Kazi for the applicants, learned

APP Mr. A. D. Wange for respondent No.1/State and learned Advocate

Mr. Shaikh Mohammad Naseer A. for respondent No.2.

3. Learned Advocate appearing for the applicants submits that

applicant No.1 is the son of applicant Nos.2 and 3. Applicant No.1 got

married to respondent No.2 as per Muslim rites and customs on

31.10.2021 at Bhusawal, Jalgaon. Respondent No.2 and applicant No.1

resided with applicant Nos.2 and 3 at Jalgaon for about two weeks

thereafter and then they went to Belapur, Navi Mumbai, where applicant

No.1 was serving. Since November 2021 to April 2022 they resided

there. Thereafter, as respondent No.2 was pregnant, she went to her

father’s house at Bhusawal and then applicant No.1 took her to hospital

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at Khargar on 26.04.2022 for checkup. Respondent No.2 was advised

to undergo Sonography. It was found that there was bleeding to

respondent No.2 and taking into consideration her health condition,

applicant Nos.2 and 3 as well as the father of respondent No.2 were

called. Father of respondent No.2 took her on 28.04.2022 to Bhusawal.

The gynecologist at Bhusawal advised 15 days bed rest to respondent

No.2. Respondent No.2 without taking the opinion of the applicants, as

per the advise of another doctor, terminated the pregnancy. On

17.06.2022, respondent No.2 and her brother met with an accident in

which she suffered serious head injury. It culminated into brain

hemorrhage. She was under treatment at various hospitals till

27.12.2022. In the meantime, the corona pandemic started and applicant

No.2 was detected positive. They could not meet respondent No.2. All

the medical expenses have been borne by applicant No.2 as he was in

continuous touch with respondent No.2. Applicant No.1 was transferred

to Banglore in the month of February 2023. He had taken respondent

No.2 along with him. During Diwali when applicant Nos.2 and 3 joined

them at Banglore, respondent No.2 misbehaved with them and

therefore, they went back to Jalgaon. The father of respondent No.2

was called and he had given assurance that respondent No.2 would

behave properly, but respondent No.2 had given threat that she would

commit suicide if she is not permitted to go to his father’s house. Thus,

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the differences went grim and therefore, applicant No.1 was constrained

to pronounce a single divorce i.e. Talaq-e-Ahsan on 23.12.2023 in

presence of witnesses. Thereafter, he had sent a notice of Talaq by

registered post on 28.12.2023. Thereafter, there was no cohabitation or

joining of the husband and wife for 90 days and, therefore, as per

Muslim customs and Shariyat Law, it became irrevocable and ultimately,

there is a Talaq between them. This mode of Talaq is not punishable

under Section 4 of the said Act and, therefore, the FIR in question and

the proceedings is an abuse of process of law, which needs to be

quashed and set aside.

4. Learned Advocate appearing for the applicants relies on the

decision in Mst. Zohara Khatoon Vs. Mohd. Ibrahim, [(1981) 2 SCC

509]. Though the said decision is in respect of Section 125 of the Code

of Criminal Procedure, yet it considers the law of divorce, which says

that the dissolution is by way of three modes i.e. the decree of

dissolution of marriage obtained through Court, the divorce by unilateral

act of husband and the Khula given by the Mohammedan wife. He

further relies on the decision of the Division Bench of this Court in

Shaikh Taslim Shaikh Hakim Vs. State of Maharashtra and another,

[2022 SCC OnLine Bom 757], wherein after taking note of the decision

in Zohara Khatoon’s case (Supra), the said way of getting the marriage

dissolved was accepted. Reliance was placed on paragraph No.22 of

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Zohara Khatoon’s case in this matter. He also relies on the Single

Bench decision of Kerala High Court at Ernakulam in Jahfer Sadiq E.A.

Vs. Marwa and Ors, [MANU/KE/2191/2022], wherein it is held that

Talaq-e-Ahsan and Talaq-e-Hasan are the two approved forms of divorce

in muslim personal law of India. What has been declared

unconstitutional by the Hon’ble Apex Court in Shayara Bano Vs. Union

of India, [MANU/1031/2017] is Talaq-e-bidat i.e. pronouncement of the

words of divorce thrice in single sitting. After taking note of the Muslim

Personal Law, the Kerala High Court has opined that Talaq-e-Ahsan is

not barred or made unconstitutional.

5. Learned APP and learned Advocate for respondent No.2 opposed

the application and submit that the facts in the case, especially the

statements of witnesses would show that the irrevocable Talaq has been

given which is barred and held to be unconstitutional by the Hon’ble

Apex Court in Shayara Bano’s case (Supra) and therefore, let there be

trial. The Trial Court would be the best forum where it can be considered

as to which kind of Talaq has been pronounced.

6. Before we proceed further, important point to be noted is that the

present FIR is not registered for the offence punishable under Section

498-A of Indian Penal Code or any other Sections. Even now after the

notice was served to respondent No.2, no argument has been made on

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her behalf that the police have failed to register the offence under

Section 498-A of Indian Penal Code. The FIR is for the offence

punishable under Section 4 of the said Act. In fact, if this FIR is to be

construed to Section 4 of the said Act, then it is restricted against

husband only. The father-in-law and mother-in-law cannot be included in

such offence. There is no question of Section 34 of Indian Penal Code

involved in such FIRs. There cannot be a common intention of

pronouncement of Talaq. Therefore, even at this stage also, we can say

that it would be an abuse of process of law if the matter is asked to be

proceeded for the offence punishable under Section 4 of the said Act

against 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 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. 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 of

instantaneous or irrevocable divorce pronounced by the Muslim

husband. Section 3 provides any pronouncement of Talaq by a Muslim

husband upon his wife, by words, either spoken or in electric form or in

any other manner whatsoever, shall be void and illegal. Therefore, for

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Section 3 also the definition that has been given in Section 2(c) of the

said Act will have to be considered. Once again, if we consider Section

2(c) of the said Act, then Talaq means Talaq-e-biddat or any other form

of Talaq, which is having instantaneous effect or irrevocable effect of the

pronouncement. All other forms of Talaq were not prohibited or barred

and, 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 Talaq

i.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 Zohara

Khatoon (Supra) which has been taken note of i.e. paragraph No.22

thereof in the Coordinate Bench decision in Shaikh Taslim Shaikh

Hakim (Supra), wherein three distinct modes of bringing a Muslim

marriage to dissolution were considered. Here, we cannot consider only

the irrevocable effect. What has been described in the definition of Talaq

is instantaneous and irrevocable. Here, in the FIR itself, respondent No.2

has 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. one

pronouncement of Talaq. Even the statements of witnesses are on the

same line. In the charge-sheet itself, the copy of the said notice dated

23.12.2023 has been given wherein it is written that he was pronouncing

one Talaq i.e. Talaq-e-Ahsan as per Shariyat. Thereafter, it appears that

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the final Talaqnama has been given on 24.03.2024, wherein it was

mentioned that after 23.12.2023 within 90 days, neither respondent No.2

had resumed cohabitation and there was no resumption of physical

relations between them. The legal effect of Talaq-e-Ahsan has come into

play. When the facts are admitted and taking into consideration the law,

what was prohibited was the Talaq-e-bidat and not Talaq-e-Ahsan, it

would be an abuse of process of law, if the applicants are asked to face

the trial and therefore, case is made out for quashment of the FIR and

the proceedings. Hence, the following order :-

ORDER

I) Criminal Application stands allowed.

II) The FIR vide Crime No.124 of 2024 dated 15.04.2024

registered with Bhusawal Bazar Peth Police Station, District

Jalgaon as well as the proceedings in Regular Criminal Case

No.1156 of 2024 pending before the learned Judicial Magistrate

First Class, Bhusawal for the offences punishable under Section 4

of the said Act and under Section 34 of Indian Penal Code, stand

quashed and set aside as against the present applicants.

[ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ]

JUDGE JUDGE

scm

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