The discourse on the legality of different forms of divorce under Muslim personal law in India gained renewed attention following the landmark Supreme Court judgment in Shayara Bano v. Union of India (2017), which declared instant triple talaq or Talaq-e-Biddat unconstitutional. However, confusion persists regarding other forms of Talaq, particularly Talaq-e-Ahsan, a more traditional and gradual process of divorce under Islamic law.
The recent judgment of the Bombay High Court in Tanveer Ahmed & Ors. v. State of Maharashtra (Criminal Application No. 2559 of 2024) clarifies the legal standing of Talaq-e-Ahsan in India, affirming that it remains a valid and lawful form of divorce. This article analyses the case and its implications on Muslim personal law and scope ofthe Muslim Women (Protection of Rights on Marriage) Act, 2019.
Background of the Case
The case arose out of a matrimonial dispute between Tanveer Ahmed (Applicant No.1) and his wife, Bushra Deshpande (Respondent No.2). The two were married in October 2021 under Muslim rites. Following a series of personal and health-related issues—including a terminated pregnancy, a serious accident involving the wife, and subsequent behavioural conflicts—the relationship deteriorated.
On 23 December 2023, Tanveer Ahmed pronounced a single Talaq—Talaq-e-Ahsan—in the presence of witnesses and later formalised it through a registered notice. No marital cohabitation occurred during the mandatory iddat period of 90 days. On this basis, Tanveer Ahmed asserted that the marriage stood dissolved under Muslim personal law.
However, the wife lodged an FIR against him and his parents under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019, and Section 34 of the Indian Penal Code (IPC)/ Section 3(5) of Bharatiya Nyaya Sanhita, alleging that the divorce was illegal and amounted to a criminal act.
Issues
The primary legal issue before the Bombay High Court was:
- Whether the pronouncement of Talaq-e-Ahsan amounts to an offence under Section 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019?
Additionally, the Court had to examine:
- Whether the FIR and criminal proceedings constituted an abuse of process?
- Whether co-accused (the husband’s parents) could be prosecuted under a provision meant exclusively for the husband?
What the Law Says: Sections 2(c), 3, and 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019
The 2019 Act, enacted in the aftermath of the Shayara Bano case, criminalises Talaq-e-Biddat, i.e., instant triple talaq.
Section 2(c) defines “Talaq” as:
“…talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce.”
Section 3 declares:
“…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 provides for punishment:
“…any Muslim husband who pronounces talaq referred to in Section 3 upon his wife shall be punished with imprisonment which may extend to three years and shall also be liable to fine.”
The statute criminalises only those forms of divorce that are instantaneous and irrevocable, which is the core characteristic of Talaq-e-Biddat. The other traditional forms of Talaq, such as Talaq-e-Ahsan and Talaq-e-Hasan, are not criminalised by the statute.
Court’s Analysis and Findings
1. Understanding Talaq-e-Ahsan
The Court reiterated that Talaq-e-Ahsan is a valid form of divorce under Muslim personal law. It involves:
- A single pronouncement of Talaq during the wife’s tuhr (period of purity),
- Followed by a mandatory iddat period (generally 90 days or three menstrual cycles),
- During which there is no sexual cohabitation.
- If reconciliation does not occur during iddat, the divorce becomes final.
2. Applicability of Section 4 of the Act
The Court observed that the FIR was filed under Section 4 of the Act and did not involve allegations under Section 498-A IPC (cruelty by husband or relatives), currently Section 85 of BNS. It held that the Talaq in question was not Talaq-e-Biddat but Talaq-e-Ahsan, as explicitly stated in the divorce notice and corroborated by witness statements and documents.
Thus, the pronouncement of Talaq-e-Ahsan could not be equated with an offence under the 2019 Act.
3. Misuse of Legal Process
The Court severely criticised the inclusion of the husband’s parents in the FIR. It stated that there could be no “common intention” under Section 34 IPC [now Section 3(5) of BNS] for a unilateral act like the pronouncement of Talaq. The law does not criminalise the involvement of parents in the act of Talaq, and hence, their prosecution was an abuse of legal process.
4. Reliance on Precedents
The Court relied on the following key judgments:
- Mst. Zohara Khatoon v. Mohd. Ibrahim (1981) 2 SCC 509: Recognised three forms of dissolution of marriage under Muslim law.
- Shaikh Taslim Shaikh Hakim v. State of Maharashtra (2022): Upheld the legality of Talaq-e-Ahsan and clarified it does not fall under the purview of the 2019 Act.
- Kerala High Court in Jahfer Sadiq E.A. v. Marwa (2022): Differentiated between Talaq-e-Biddat and Talaq-e-Ahsan, reaffirming the legality of the latter.
Conclusion
In unequivocal terms, the Bombay High Court held that:
“What was prohibited was the Talaq-e-Biddat and not Talaq-e-Ahsan. Therefore, it would be an abuse of process of law if the applicants are asked to face the trial.”
The FIR and proceedings against the husband and his parents were quashed.
Legal Significance of the Judgment
Clarifies Scope of 2019 Act
The judgment draws a definitive line between the forms of Talaq that are criminalised (Talaq-e-Biddat) and those that are not (Talaq-e-Ahsan and Talaq-e-Hasan), preventing potential misuse of the law.
Strengthens Judicial Scrutiny in Matrimonial FIRs
The Court’s approach reinforces the need for careful examination of the form and manner of divorce before initiating criminal proceedings.
Protects Personal Law Autonomy
The verdict respects religious personal laws while balancing statutory mandates, setting a model for harmonious interpretation of personal law and state legislation.
Discourages Over-Criminalization
By protecting the parents from prosecution in a matter that legally involves only the husband, the Court discourages the arbitrary and wide application of criminal laws.
Conclusion
The Bombay High Court’s decision in Tanveer Ahmed & Ors. v. State of Maharashtra is a landmark pronouncement reaffirming the legality of Talaq-e-Ahsan in India. It provides crucial clarity to the Muslim community and the legal fraternity on the contours of lawful and unlawful divorce practices under Muslim personal law.
While Talaq-e-Biddat stands outlawed, the judgment ensures that traditional and scripturally sanctioned practices like Talaq-e-Ahsan retain their validity. The ruling not only upholds the sanctity of personal law but also safeguards individuals from unwarranted criminal prosecution under a misapplied statute.