Gauhati High Court
Dr. Asif Ahmed vs The State Of Assam And Anr on 7 February, 2024
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GAHC010011392024
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./72/2024
DR. ASIF AHMED
S/O FIJNUR AHMED
R/O CHOTO RUPOHI
P.S. NAGAON SADAR
DIST. NAGAON, ASSAM
VERSUS
THE STATE OF ASSAM AND ANR
REP. BY THE PP, ASSAM
2:DR. NAZIMA KHATUN
(INFORMANT)
D/O JAMALUDDIN AHMED
VILL- NAGAJAN
P.O. KHARUPETIA
DIST. DARRANG
ASSA
Advocate for the Petitioner : MR S BORTHAKUR
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MRS. JUSTICE SUSMITA PHUKAN KHAUND
ORDER
Date : 07.02.2024 Heard Mr. S. Borthakur, learned counsel for the petitioner.
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2. The petitioner has filed this application under Section 482 read with Section 401 of the Code of Criminal Procedure, 1973 seeking quashing of the FIR registered as Kharupetia Police Station Case No. 161/2023 under Sections 4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019.
3. Heard Mr. B.B. Gogoi, learned counsel for the respondent No. 1. The learned Additional Public Prosecutor has accepted notice on behalf of the respondent No. 1, so no formal notice is required to be issued. However, sufficient copies of the petition to be furnished to the respondent No. 1 during the course of the day.
4. It is submitted on behalf of the petitioner that the FIR is not sustainable in the eyes of law, to attract Section 4 of the Muslim Women (Protection of Right on Marriage) Act, 2019 (hereinafter referred as the Act). The requirement for pronouncement of talaq by a Muslim husband upon his wife by word either spoken or in electronic form or in any other manner i.e. "Talaq-e-Biddat" was not complied with. It is submitted that the informant on earlier occasions lodged several FIRs with various allegations against the petitioner. On 13.03.2023 the informant brought up a case of torture against the petitioner and his family members. This Court on 05.06.2023 passed a direction setting aside the impugned order dated 13.03.2023 and the proceeding of W/C (N) 159/2023. The informant then with malafide lodged another FIR dated 11.06.2023 with false and fabricated allegations which was registered as Nagaon Police Station Case No. 552/2023. This Court granted bail to the petitioner in the aforementioned case. It is further submitted that the FIR clearly reveals that Talaq-E-Ahsan was duly followed by the petitioner and is not barred by law.
5. The petitioner has relied on the decision of Hon'ble the Supreme Court in Shayara Bano Vs. Union of India and others reported in (2017) 9 SCC 1 wherein Page No.# 3/4 it has been observed that:
"104. Given the fact that Triple Talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place. Also, as understood by the Privy Council in Rashid Ahmad, such Triple Talaq is valid even if it is not for any reasonable cause, which view of the law no longer holds good after Shamim Ara. This being the case, it is clear that this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression "laws in force" in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being manifestly arbitrary, we do not find the need to go into the ground of discrimination in these cases, as was argued by the learned Attorney General and those supporting him.
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117. "Talaq", namely, divorce at the instance of the husband, is also of three kinds - "talaq-e-ahsan", "talaq-e-hasan" and "Talaq-E-Biddat". The petitioner's contention before this Court is that "talaq-e-ahsan" and "talaq-e-hasan" are both approved by the Quran and "hadith". "Talaq-e-ahsan", is considered as the "most reasonable" form of divorce, whereas "talaq-e-hasan" is also considered as "reasonable". It was submitted that "Talaq-e-Biddat"
is neither recognized by the Quran nor by "hadith", and as such, is to be considered as sacrosanct to Muslim religion. The controversy which has arisen for consideration before this Court is with reference to "Talaq-e-Biddat"."
6. The learned counsel for the petitioner has also submitted that according to the definition, talaq means Talaq-E-Biddat and punishment is prescribed under Section 4 of the Act.
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7. I have heard the submissions at the bar with circumspection.
8. Meanwhile call for the case diary and issue notice to the respondent No. 2 through registered post as well as through usual process, returnable within two weeks.
List accordingly.
JUDGE Comparing Assistant