Allowed

Mohammed Abdul Muqeet Aman v. State of Ts

Telangana HC8 Mar 2022CRLP/8404/2021

Case brief

AI extract

What is this about?

High Court quashed criminal proceedings on the ground that the divorce pronounced was Talaq-e-ahsan, which is revocable during the Iddat period, and thus did not meet the criteria of illegal Talaq-‘biddat under the 2019 Act. Court also held the police station had jurisdiction to register the FIR.

What did the court decide?

Quashed the proceedings in Cr. No. 237 of 2021 pending before P.S. Shahinayat Gunj.

Mohammed Abdul Muqeet Aman Vs State of Ts — Matrimonial and Divorce | Telangana HC (2022)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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TUESDAY. THE EIGHTH DAY OF MARCH TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE SRI JUSTICE K.LAKSHMAN

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CRIMINAL PETITION NO: 8404 OF 2021

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Between:

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Mohammed Abdul Muqeet Aman, S/o. Mohd Abdul N,4uqtadar Khalid

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[,4ohd Abdul Muqtadar Khalid, S/o. Late Mohd Abdul Nayeem

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Juhi Fatima, W/o i.4ohd Abdul lvluqtadar Khalid,

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.,.PETITIONERS

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AND

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The State of Telangana, Rep by Public Prosecutor, High Court for the State of Telangana, at Hyderabad.

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Zahra-Rasheed,'W/o. lvlohammed Abdul^{l,4uqeetAman,D/o. MohammedAbdul} Rasheed

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...RESP.NDENT.

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Petltion under Section 482 of Cr.P.C^praying that^{in the circumstances stated} in the Memorandum of Grounds of Criminal Petition,^{the High Court may be pleased} to^quash the^{proceedings in} Cr No.23712021^{of Shahinayat Gunj Police Station}

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l.A. NO: 1 OE 2021

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Petition under Section^{482of Cr.P C praying thatin thecircumstances stated} in the N,4emorandum of Grounds^{of Criminal Petition,the High Court may be pleased} to stay all the further^{proceedings pursuant to Crime No.237 of 2021 Shahinayat Gunj} Police Station^pending before^{XVIAdditionalChief Metropolitan l,lagistrate} Hydera bad.

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This Petition coming on^{for hearing,upon perusing the Memorandum of} Grounds of Criminal^{Petitionand upon hearing the argumentsof Ms NASEEB} AFSHAN,AdvocateforthePetitionersandofthePublicProsecutoronbehalfofthe Respondent No.1 and of Sri^{P,Shiva Kumar, Advocate forthe Respondent No 2'}

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The Court made^{the following: ORDER}

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KL.J Crl.P.No.8404 ol202l

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HON'BLE SRI JUSTICE K. LAKSHMAN

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CRIMINAL PETITION No.840 10F 2021

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oRDUlr:

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The present criminal petition is filed to quash the proceedings in Cr. No 237 ol202l pending on the file ofP.S. Shahinayat Gunj.

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Fleard Ms. Naseeb Af-shan, learned counsel fbr the Petitioners. Mr. P. Shiv Kumar, learned counsel for Respondent No.2 and learned Public Prosecutor for Respondent No. I

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Facts of the case

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i) Petitioner Nos.1,2, and 3 are respectively the husband, father-in-1aw, mother-in-law of Respondent No.2. The petitioner No.1 and Respondent No.2 got married on 06.06.2014 in Hyderabad. Disputes arose between the parties and Respondent No.2 alleged that she was driven out of her marital house on 20.07.202t.

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ii) on 26.08.202 r, the petitioner No. r through his counsel issued a regar notice to Respondent No. 2. In the said notice, it was stated that Responaent No. 2 can join the matrimonial company of petitioner No. r onry after she gets h'eated lbr her^{,quarrelsorne} attitude,

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KL..I Crl.P.No.840,1 of 2021

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iii) on 27 '10'2021, Respondent No. 2 had fired a cornplaint with the p.s. Banjara Hills alleging offences under section 49g of the Indian penal code, 1860 and Sections 3 &. 4 of the Dowry prohibition Act, 1961. The said complaint was registered as Cr. No. 7g7 of 2021 .

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iv) After registration of Cr. No. 7g7 of 2021, on 29.10.2021, petitioner No, 1 thro,gh his counsel sent another legar notice to Respondent No. 2. in the said notice, it lvas stated that Petitioner No. I , in the presence ol witnesses, had pronounced Talaq and divorced Respondent No. 2 on 27.10.2021 ,

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v) On 05.11.2021, Respondent No.2 filed a complaint with the P.S. ShahinayatGunj alleging that the Petitioner No. I conspiring with Petitioner Nos.2 & 3, vide notice dated 29.10.2021,, had pronounced triple talaq which is prohibited and punishable under the Muslim Women^{(Protectionof Rightson} Marriage) Act,2019^{(hereinafter 'the Act, 2019). The said complaintdated} 05. I 1 .2021 was registered^{as cr. No. 237 of 2021 and the sameis challenged in} the present criminai Petition.

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I ontentions oft^{he Petitioners}

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i) Under^{Muslim personal law, there are three forms of divorcesi'e''} talaq-e-ahsan,^{talaq-e-hasan, and talaq-e-biddat Section2 (c) r/w Section3 of}

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4 KL.J Crl^{P,No840'1 of 2021}

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the^{Act, 2019 onlY Prohibittalaq-e-biddat or any otherfonn of talaq whichhas} an efiect^{of irrevocableand instantaneottsdivorce'}

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ii)^{In the legal nottcedated 05'11'2021' Petidoner No"Ihad onlY} In^{talaq-e-ahsan'divorce can be} pronounced^{talaqwhich is talaq-e-ahsan} ation^{is reachedbetween the husband} revoked^{withinthree monthsif anyconcili} and^{the wife'}

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iii)^{The legal notice dated 05'1i'202ipronounced a singletalaq'} Respondent^{No' 2 instead of going for a reconciiiation or mediationwithin the} iddat^{period had registered a criminalcaseagainst Petitioner No' i ' Therefore'} the ingredients^{ofSections 3& 4 ofthe Act' 2019 arenot satisfied'}

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iv) Respondent^{No' 2 is a resident of Shaikpetareaand received the} notice^{dated26'08'202l at Shaikpet' Furlher' in Cr' No' 787 of 2021 she} showed^{her addressedas Shaikpet' However' she filedCr' No' 23'7 of 2021 at} P.S. ShahinayatGunj'^{Theretbre' P's ShahinayatGunjhas no territorial} jurisdiction to^{register the case and investigateit'}

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v) In light of the^{argtrments, it was prayedthat in Cr' No' 237 ol 2021} pending cn"$e file of p.S. Shahinayatcun1 should be quashed.

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KL..I Crl.P.No.8404 of 202l

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-5.^{Con tention} s of Res pon dent No. 2

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i) The notice dated 05. r r.2021 crearly states that petitioner No. r herein had divorced Respondent No. 2 severed ail his rnarital ties with her. This clearry indicates that the divorce was inevocabre and instantaneous. Therefore, the ingredients ofSections 3 & 4 ofthe Act,20r9 are satisfied and the petitioners are liable to be punished.

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ii) P,S. ShahinayatGunj had jurisdiction ro regisrer Respondent No. 2's cornplaint. She was residing at her uncle's residence u,.hich lalls within P.S. ShahinayatGunj's^juri sdiction.

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iii) Further, in cases of matrirnonial offences, an FIR can be registered^at a place rvhere the wife resides and^{the police are bound to register the FIR,} in espective of the ten.itorial^{jurisdiction. Reliancewas placedon Satvincler} Kaur v. State^{(Govt. of NCT of Delhi)'and Rupali Devi v. Stateof Uttar} Pradeshz.

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iv) In light of the^{alguments,it was prayed that in Cr' No' 237 of 2021} should not^{be quashed.}

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'^{(rqsg) s scc728.} 2 (zots) s scc 384.

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KL.J Crl.P.No.8404 o1202l

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6. F indines of the Court

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i) In vierv ofthe above referred rival contentions, to decide^{the /rs in the} present crirninal petition, it is relevant to discuss the relevant provisions of the Code of Criminal Procedure (hereinafter 'Cr.P.C.') dealing with registration ol FIRs and the same are extracted below:

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"^{154.Information} in cognizatrle cases.-( I ) Every infbrrnation relating to the comrnission of a cognizable offence. if given orally to an offlcer in charge of a police station, shall be reducecl to tvriting by him or under his direction, and be read over to the informant; and every such information. whether given in writing or reduced to writing as aforesaid. shall be signed by rhe person giving it, and the substance thereofshall be entered in a book to be kcpt by such olficer in such lbrrn as the State Governnrent may prescribe in this behalf:

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Provided that il the inlbrmation is given by the woman a_qainst rl.hont an ol'lencc under section 3264. section 3268. ,.ction 354. section 354A. section 35.{ll. section 154C. scction J5.lD, scction 376. sc_ction 376,4. secrion 3768, section i76C. scction 376D. sr.ction 3761) or section 509 of the Indian [,enal Code (45 of 1g601 is allegecl to havc been committcd or atternptecr, then such inrbrmation sh.lr bc recorded. by a *,.rnan policc. ol)icer o, onr runn.,on arft.i.:"r,

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Provided turtrrer that- (a) in the cvent that the person against w,ho,r an ollbnce undcr section 354, secrion 354A. scction 354IJ. scction 354C. section 354D. section 376, section 376A, section 3768, section 376C. section 376D. secrion 376E or secrion SOq "f ,ir. ;;;,;;,;;; (45 of 1860) is alleged ro have b..n.on.,,rittl.a J, uu.nlpr.r], i, {ffi#H,,ry,ffififil;nfi#

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(b) the recording ol such information shall be videographed;

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(c) the policc olficer shall get the statement of the person recorded bv a Judicial Magistrate under clause (a) of sub_section (5A) ol section I 64 as soon as possible.

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(2) A copl,olthe inlormation as recorded under sub_seclion (1)shall be given forthrvith, frec of cost" to the infomtant.

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(3) Any person aggrievecl by a refusal on the part of an oflicer in chargc of a police station to recorcl the inrormatio. referred to in subsection ( l) may send the substance olsuch infonnation, in w.riting and by post. to the Superintenclent ofl police concerned u,ho. if satisfied that such infonnation discloses the cornrnission of a cognizable oflfence, shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him, in the manner provided by this Code. and such officer shall have all the powers of an olficer in charge ol the police station in relation to that oflence."

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"155.^{Informationas to non-cognizablecases and investigationof} such cases.-( I ) When inlormation is^{given to an ofllccrin charge ol} a police station of the comnlission^{rvithin the limits of'suchstationol} a non-cogttizablc^{olfence. he shallenter or causcto be entercd the} substance of thc^{irrlorurationin a book to be kcpt by' suchoffiocr in} such loru^{as thc StatcCoventtlcnt nlay prescribe in thisbchalL and} reler the inlornlant^{to the Magistl'ate'}

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(2) No policc officer^{shall investigate a non-cognizable caservithout} the order^{of a Magistratc having porvcr to tr)' such cirsc ot colnnlitthe} casc lor tt'ial.

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(3) An,v^{policc otficer receiving such ordermay exercise the same} iurr.rr'i,',^{rcspectof the investigation (except the porver to arrest} ,"i.,-,ou,rvarrant)asanofficcrinclrargeofapoliceStationmay cxcrcisc^{in a cognizlblccasc'}

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(4) Where^{a caserclates to two or more offencesoiwhichat leastone} ,r'""nk"ot",^{the case shallbe deemedto be a cognizable case'} notilt^{rtunairgthat the other oflencesarenon-cognizable"}

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KL.J Crl.l'.No,8404 of^202l

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"156.^{Policeofficer's porverto investigatc cognizablecase.-(I )} Any otlicer in charge ol a^{police station ma.v, rvithout the ordcr of a} Magistrate. investigate any cognizable^{case rvhich a Courthaving} jurisdiction over the local area rvithin the limits of such station would have porver to inquire into or try under^{the provisionsolChapterXlll}

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(2) No proceeding of a police officer in any such case shall at^any stage be called in question on the^groundthat the^{case rvas one which} such officer was not empowered under this section to investigate.

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(3) Any Magistrate empowered under section i90 may order such an investigation as above-mentioned."

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ii) It is relevant to note that Section 154 of the Cr.p.c. provides fbr the registration of FIR where the information discloses commission or a cognizable of'fence' whereas Sectiorr 155 of the cr.p.c. dears with the registration or.FIR where the information received discloses a non-cognizable of'funce.

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iii) A bare reading and comparing of Section l5a(i) of the Cr.p.C. and Section 155(l) of the cr.p.c. indicates rhar the phrase .within the rimits of such station of a non-cognizable offence' is absent in the former section. That is to say that' a non-cognizable offence can be registered onry by an officer of the police station having territorial jurisdiction. In other words, in cases of non_ cognizable offences, the police can register the FIR onry if such offences were commifted within its jurisdiction.

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iu) On rhe orher hand, according to Section 154(1) ol.the Cr.p.C., an1, police stat 4n^{whichreceives} information regarding commission of.a cognizabic.

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KL..] Crl.P.No.8404 of 2021

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offence shall register the FIR. The r.equirement of territoriar jurisdiction is not applicable to police officers where the information discroses commission of cognizable offences

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v) Further, Section 156 of the cr.p.c. deals with the powers of porice officers to investigate cases where cognizable offences are said to be committed. Secrion 156(2) of the cr.p.c. clearry states that the investigation of a cognizable offence by a potice officer cannot be calred into question on the ground that he is not empowered. This means that porice officer,s investigatio, cannot be called into question on the ground of lack of territoriar jurisdiction.

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vi) A co-joint reading of Section 154(1) and Section 156(2) of the cr.P.c' indicates that any porice officer, irrespective of the territorial jurisdiction, can register an FIR and investigate, if information regarding cornmission of cognizabre offence is received. In RasiklarDalpatram Thakkar v' state of Gujarat3, the Supreme court held that the investigation into a cognizable offence cannot be cailed into question on the grouncl of lack or territorial jurisdiction.

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"25. T.hc various decisions cired by Ml. Syed. and in particular the decision in Satvinder Kaur's case (supra) provide an insight into the vicrvs held by the Supreme Court on the accepled position that the

rlzo r o; r s;cu r

KL,J

Crl.P.No.8404^{of 202l}

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Investigating Officer was entitled^{to transferan investigationto a} Police Station having^{jurisdiction to conductthe same l'hesaid} question is not in issue before us and^{as indicated hereinbefore.rve} are only required to consider^{whether the InvestigatingOlficer in} respect of an investigation^{undertakenunderSection 156(3)Cr.P.C.} can file a report stating that^{hc had no.jurisdictionto investigatcinto} the complainl as the^{enlire causcof'actionhad ariscn outside his} jurisdiction despite therc being material available to tlte^{contrarl'.Tla} answer, in our view, is^{in lhe negativeandwe ore of the} Jirnt^viex' llrat the powers vested in^{the InvestigotingAuthorities,rurder} Section 156(1) Cr.P.C., did^{ttot restrict the jurisdic'tion oJ' the} Investigttting Agency to invesligate^{into o complairrleven iJ it tlitl} not have territorial iuristliction^{to do so. Unlikeas in othercases.it} was for the Court to decidc^{rvhether it had j urisdictiotl1o entertaintho} complaint as and rvhen^{the entire lacts rvereplaced befbre it.}

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(ernphasis suPPlicd)''

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vii) In the present case, Section⁷ of^{the Act, 2019 clearlvstates that} offences under the Act, 2019 are cognizable. Therefore,^{P.S. Shahinayatcunj} was duty bound to register Respondent No.2's cornplaint under Section 154(l) of the Cr.P.C. and investigate the same under Section 156 ol the Cr.P.C. P.S. Shahiniyat Gunj during the course of the investigation may decide rvhether the1, had territorial jurisdiction or not and ref'er the complaint to police station havir.rg jurisdiction.

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Kt.. Crl.P.No.8.l04 of202l

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viii) Therefore, according to this Court, p.S. Shahinayat Gunj had jurisdiction to register cr. No. 237 of 2021. The contention of the petitioners that P.S. Shahinayat Gunj has no territorial jurisdiction is unsustainable.

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7' The next question falrs for consideration is as to whether contents of the complaint constitute the offence under Section _ 4 of the Act,2019?

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i) To decide the same, it is necessary to decide whether petitioner No. r had pronounced talaq-e-biddat ."vhich is punishable under the Act, 2019. Before deciding the issue invorved, it is pertinent to discuss the types ofdivorces ivhich can be pronounced by a husband under Muslim personal law. According to Mulla's Principles of Mahomeda, Law, divorce under the Muslim personal raw is classified as taraq-e-sunnat and talaq-e-biddat. talaq-e-suunat is further classified as talaq-e-ahasan and talaq-e-hasan. The same was referred in ShayaraBano v. Union of Indiaa.

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ii) [n talaq-e-hasan, the husband has to pronounce talaq during three srrccessive tuhrs(period between two menstruar cycles). The first talaq is pronounced during a tuhr, forowed by a second pronouncement during the successive tuhr and finalty, the third pronounced during the third successive tuhr' During the periods of three tuhrs, for the divorce to oper.ate, the parties

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u(:orz)qsCcj,

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KL,J Crl.P.No.8404 of 202l

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should refrain from rnarital intercourse. This type of^{divorcecan be revokedat} any time before tl-re third pronouncement is made. Revocation can be^doneb1' resuming conjugal relations like cohabitation, marital relations, etc. Once^the third pronouncement is made, the divorce becomes absolule antl^irrevocable.

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iii) Talaq-e-ahsan consists of single pronouncement of divorce durir-rg a tuhr. After this single pronoLrncement. the iddat peliod (90 days period or three menstrual cycles) starts to run during ra'hich the parties shall not have an1' rnarital intercourse. This type ol divorce or talaq is revocable and is t'evoked when the parties have resumed cohabitation ol intimacy or settlecl their marital dil'ferences during the iddat period. If the parties fail to coliabit or settle their differences during the subsistence of the iddat period, the divorce becomes absolute, final and irrevocable

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iv) In talaq-e-biddat,three pronouncelnents of divorce are made during a single tuhr. These three pronouncements are made at once. Once the three pronouncements are made, the divorce instantly becomes final. absolute and irrevocable. In talaq-e-biddat, the parties have no chance ol reaching ii settlenrent or reconciliation.

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v) It is relevant to note that the practice of talaq-e-biddat r.vas befbre the SupreriE€ourt in ShayaraBanoo. The Supreme Court with 3:2 majority set

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KL.. Crl.P.No.8404 o12021

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aside the pl'actice of taraq-e-biddat, inter aria, on the gr.ound of manifest arbitrariness. Subsequently, the Act, 2O1g was enacted making the pronouncement of talaq-e-biddat punishable.

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vi) At this juncture, it is relevant to discuss the provisions of the Act, 2019 which punish the practice of talaq-e-biddat. The relevant provisions are extracted below:

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"Section 2^(c)

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"talaq" means talaq-e-biddat or any other similar lom of talaq havin_e the effect of inslantaneous and irrevocable divorce pronounced by a Muslirn husband.

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Section 3-Ta laq to be vo id and ille ga l.

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Any prorrouncclnent of talaq by a Muslirn husband upon his rvifle. b1, words. either spoken or rvritlen or in electr.onic rorm or in anv other manner whatsocvcr. shail be void and illegal.

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Section^.{ - Pu nishnrcnt frl r 1l ronoun cinq tu laq.

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Anl,Muslirn husband who pronounces talaq rei-erred to in section 3 upon his rvilc shall be punished with imprisonment for a term rvhich may extend to three years. and shall also be Iiablc to flne.,,

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vii) A bare perusal of the above provisions indicates that talaq-e-biddat

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along with any other form of talaq having instantaneous and irrevocable

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pronounced by a husband under Muslirn personal Law is illegal and void. It is necessary that such divorce has to be instantaneous and irrevocable. Further

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KI,.J Crl.l'.No.8.104 ol 202 I

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Section 3 co'"'ers pronouncement in any manner which irrcludes serving notice, as is seen in the plesent case

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viii) Therefbre, to decide the issue at hand this Court has to see rvhether the Iegal notice dated 29.10.2021 had an eft'ect of instantaneous and ilrevocable divorce. The relevant porlion ol the legal notice dated 29 .10.2021 , relied and interpreted by the counsels, is extracted below:

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''Now my client is totally vexed rvith your behavior and actions and hos pronounced Single Talaq/ One time to you in lhe presence of lluo compelenl b,ilnesses on 27th of October, 202,1. (emphasis added)

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l'lence take notice thal you have been divorce by your husband b;, the pronouncing Talaq for one time and severed tll ltis muritol ties *,ith J,orr.(ernphasis^added)

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The Mahar amount of Rs 51, 000/ (Rupees Fifty One Thousand Onli,) is being sent to you by rvay ol money order. An amount of RS 1 5. 0001 (Rupees Filteen Thousand Only) is sent to you through monev order as Iddat period maintenance."

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ix) Re1'erring to the above portion of the notice dated 29.10.2021, ir was

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contended on behalf of Respondent No. 2 that the notice stated that the Petitioner No. I had 'severed all his rnarital ties', this has an instantaneous and irrevocable effect of divorce. Therefore, it falls within the scope of Section 2(c.1 r7w Section 3 of the Act,20l9.

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x) However, leamed counsel fo,. the petitioners contended that the notice clearly stated that only single talaq was pronounced which is nothing but talaq-

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Crl.P.No.8404 of 202 i

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e-ahsan, Fr:rther', it was contended that the petitioner No. l had sever.ed all his marital ties under talaq-e-ahsan. However, the divorce could be revoked before the expiry of iddat period.

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xi) This court agrees,'vith the arguments advanced bv the petitioners and cannot accept the contention of respondent No.2 that petitioner No. r had pronounced talaq-e-biddat. As rnentioned above, the difference between talaq-eahsan and talaq-e-biddat is that, in the form er the divorce car.r be revoked and is not final tilI the completion of iddat period, in the ratter the divorce is instant and irrevocable.

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xii) The notice dated 29.lo.zo2l clearly mentioned that petitioner No. r pronounced a single talaq. Though severing of marital ties had an instantaneous effect' it did not have an inevocabre effect. Ties were severed by petitioner No" I as it is a requirenrent under taraq-e-ahsan to nor have any conjugal rerations till the iddat perioci. The divorce was revocable as the par-ties courd have rrlended the marital ties or reconcile their differences or resurle nonnal marital lile by resuming their conjugal relationship befbre the expiry of iddat period. l'herefore, no irrevocable talaq was pronounced by petitioner No. l. Therefore, the contents of the complaint lacks the ingredients of the offence urrder Section - 4 of the Act, 201 9.

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xiii) Since no talaq-e-biddat \vas pronounced, no question ofconspiracy

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of Petitioner. Nos. 2 & 3 arises.

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8. Concl u slon

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In light of the aforesaid, the proceedings in Cr. No. 237 of 2021 afe quashed. The present Criminal petition is accordingly allowed.

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As a sequel, miscellaneous petitions. if any, pending in the criminal

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petition shall stand closed.

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Sd/-M.IMANJULA ASSISTANT REGISTRAR ,TRUE COPY'

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.."-,#&1,.u*

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One Fair Copy to the^{HonourableSri Justice K Lakshman} (For his Lordships kind Perusal)

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The XVI Additional Chief Metropolitan^{Magistrate,Hyderabad.} 2. The Station House Officer.^{Shahinayathgunj Police Station, Shahinayathgunj,} Hyderabad.

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