Rasheed. A vs The Local Registrar Of Marriages
2021 Latest Caselaw 16107 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                 THE HONOURABLE MR. JUSTICE GOPINATH P.
        TUESDAY, THE 3RD DAY OF AUGUST 2021 / 12TH SRAVANA, 1943

                        WP(C) NO. 25099 OF 2017
PETITIONER:

             RASHEEDA. A.,AGED 34 YEARS
             W/O. YAHYA THANGAL, KUNHIKKANAM, ALAMPADY P.O.,
             NOW R/AT BERKA, B.K. PARA, CHENGALA P.O., KASARGOD.

             BY ADV SMT.R.PADMAKUMARI


RESPONDENTS:

    1        THE LOCAL REGISTRAR OF MARRIAGES
             CHENGALA PANCHAYATH, CHENGALA P.O., KASARGOD
             PIN : 671121

    2        DEPUTY DIRECTOR OF PANCHAYATH
             B- BLOCK, IIND FLOOR, CIVIL STATION,
             VIDYA NAGAR P.O., KASARGOD - 671 121

             BY ADVS.SC,SRI.M.S.IMTHIYAZ AHAMMED
             GOVERNMENT PLEADER SRI.IMAM GRIGORIOS KARAT

             SRI.SHIRAZ ABDULLA



THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION            ON
03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.25099/2017                    2


                                 JUDGMENT

This writ petition has been filed seeking a direction to the 1 st respondent

to consider Ext.P3 and issue a marriage certificate to the petitioner. The brief

facts are that the petitioner was originally married to one Badarul Muneer. On

06.03.2011, the said Badarul Muneer had pronounced 'Talaq', which is

evidenced by Ext.P1 'Talaqnama' executed in the presence of two witnesses.

On 05.09.2011, the petitioner got married to one Yahya Thangal as per the

customary rites prevailing in the Muslim Community and Ext.P2 marriage

certificate was issued by the Secretary of the Kunhikkanam Muhyadheen Juma

Masjid Committee.

2. The application filed before the 1 st respondent by the petitioner

for registration of marriage has not been acted upon, on the premise that

Ext.P1 'Talaqnama' does not indicate that 'Talaq' had been pronounced thrice

as would be required in the case of 'Talaq-e-Biddat'.

3. The judgment of the Supreme Court in Shayara Bano vs.

Union of India; (2017) 9 SCC 1 essentially took the view that

instantaneous 'Talaq' (which is known as 'Triple Talaq') was bad in law. It was

held that the law which recognizes it would be manifestly arbitrary. Indeed a

similar note was sounded by the Supreme Court in Shamim Ara v. State of

U.P; (2002) 7 SCC 518. However, following the customary practices and the

provisions of the Muslim Personal Law (Shariat) Application Act, 1937, such a

practice was prevalent in the community.

4. In the facts of the present case it is seen that Ext.P1 'Talaqnama'

has been accepted and acted upon by the parties. It is no doubt true that

Ext.P1 only discloses the fact that, 'Talaq' has been declared two times instead

of the customary three times. However, nothing turns on that fact as there is

another form of 'Talaq' known as "talaq-e-ahsan" where the pronouncement of

'Talaq' needs only be once. In his dissenting judgment in Shayara Bano

(supra), Chief Justice Khehar has set out the three recognized forms of

'Talaq' in paragraphs 117 to 121 of the SCC report. It reads:-

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 recognised 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".

118. It is necessary for the determination of the present controversy, to understand the parameters, and the nature of the different kinds of "talaq". "Talaq-e-ahsan" is a single pronouncement of "talaq" by the husband, followed by a period of abstinence. The period of abstinence is described as "iddat". The duration of the "iddat" is ninety days or three menstrual cycles (in case, where the wife is menstruating). Alternatively, the period of "iddat" is of three lunar months (in case, the wife is not menstruating). If the couple resumes cohabitation or intimacy, within the period of "iddat", the pronouncement of divorce is treated as having been revoked. Therefore, "talaq-e-ahsan" is revocable. Conversely, if there is no resumption of cohabitation or intimacy, during the period of "iddat", then the divorce becomes final and irrevocable, after the expiry

of the "iddat" period. It is considered irrevocable because, the couple is forbidden to resume marital relationship thereafter, unless they contract a fresh "nikah" (marriage), with a fresh "mahr". "Mahr" is a mandatory payment, in the form of money or possessions, paid or promised to be paid, by the groom or by the groom's father, to the bride, at the time of marriage, which legally becomes her property. However, on the third pronouncement of such a "talaq", the couple cannot remarry, unless the wife first marries someone else, and only after her marriage with other person has been dissolved (either through "talaq"--divorce or death), can the couple remarry. Amongst Muslims, "talaq-e-ahsan" is regarded as

--"the most proper" form of divorce.

119. "Talaq-e-hasan" is pronounced in the same manner, as "talaq-e- ahsan". Herein, in place of a single pronouncement, there are three successive pronouncements. After the first pronouncement of divorce, if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. The same procedure is mandated to be followed, after the expiry of the first month (during which marital ties have not been resumed). "Talaq" is pronounced again. After the second pronouncement of "talaq", if there is resumption of cohabitation within a period of one month, the pronouncement of divorce is treated as having been revoked. It is significant to note, that the first and the second pronouncements may be revoked by the husband. If he does so, either expressly or by resuming conjugal relations, "talaq" pronounced by the husband becomes ineffective, as if no "talaq" had ever been expressed. If the third "talaq" is pronounced, it becomes irrevocable. Therefore, if no revocation is made after the first and the second declaration, and the husband makes the third pronouncement, in the third "tuhr" (period of purity), as soon as the third declaration is made, the "talaq" becomes irrevocable, and the marriage stands dissolved, whereafter, the wife has to observe the required "iddat" (the period after divorce, during which a woman cannot remarry. Its purpose is to ensure, that the male parent of any offspring is clearly identified). And after the third "iddat", the husband and wife cannot remarry, unless the wife first marries someone else, and only after her marriage with another person has been dissolved (either through divorce or death), can the couple remarry.

120. The distinction between "talaq-e-ahsan" and "talaq-e-hasan" is, that in the former there is a single pronouncement of "talaq" followed by abstinence during the period of "iddat", whereas, in the latter there are

three pronouncements of "talaq", interspersed with abstinence. As against "talaq-e-ahsan", which is regarded as "the most proper" form of divorce, Muslims regard "talaq-e-hasan" only as "the proper form of divorce".

121. The third kind of "talaq" is--"Talaq-e-Biddat". This is effected by one definitive pronouncement of "talaq" such as, "I talaq you irrevocably" or three simultaneous pronouncements, like "talaq, talaq, talaq", uttered at the same time, simultaneously. In "Talaq-e-Biddat", divorce is effective forthwith. The instant talaq, unlike the other two categories of "talaq" is irrevocable at the very moment it is pronounced. Even amongst Muslims "Talaq-e-Biddat", is considered irregular.

In the peculiar facts of the case, since there has been no reconciliation after

Ext.P.1 the 'Talaq' pronounced through Ext.P.1 could also be taken as valid.

While holding so I also note the findings of a Division Bench of this Court in X

and others v. X and others; 2021 (2) KHC 709 (DB).

5. It is, therefore, directed that the 1st respondent shall accept Ext.P1

and act upon Ext.P3 as if Ext.P1 is valid in dissolving the earlier marriage

between the petitioner and Badarul Muneer. The 1 st respondent shall take

expeditious steps to register the marriage of the petitioner acting upon Ext.P3

application. The needful shall be done within one month from the date of

receipt of a certified copy of this judgment.

sd/-

GOPINATH P.

                                                       JUDGE
hmh




                   APPENDIX OF WP(C) 25099/2017

PETITIONER EXHIBITS

EXHIBIT P1             THE TRUE COPY OF THE "TALAQNAMA"

EXHIBIT P2             THE TRUE COPY OF THE MARRIAGE
                       CERTIFICATE ISSUED BY THE SECRETARY,
                       KUNHIKKANAM MUHYADHEEN JUMA MASJID
                       COMMITTEE.

EXHIBIT P3             THE TRUE COPY OF THE APPLICATION DATED
                       07.10.2011 SUBMITTED BEFORE THE 1ST
                       RESPONDENT.

EXHIBIT P4             THE TRUE COPY OF RECEIPT ISSUED FROM
                       THE OFFICE OF THE 1ST RESPONDENT.

EXHIBIT P5             THE TRUE COPY OF THE COMPLAINT DATED
                       10.10.2014 SUBMITTED BEFORE THE 2ND
                       RESPONDENT.

RESPONDENT'S EXHIBITS            NIL