Masroor Ahmed v. State (NCT of Delhi) and Ors. by - Trijita Sengupta

Masroor Ahmed v. State (NCT of Delhi) and Ors.

Authored by - Trijita Sengupta

Facts of the Case

On April 2, 2004, the complainant, Aisha Anjum wed Masroor Ahmed in accordance with Muslim customs, and the two lived together until April 8, 2005. The wife claimed that she was thrown out of her matrimonial home because of unmet dowry demands, by the husband and his family members. The petitioner claimed that he had tried to reconcile with her towards the end of October in 2005. However, due to her continued reluctance to return to their matrimonial home, the husband, in a fit of anger, had uttered the words “talaq” three times or even more, directed towards his wife, in the presence of two witnesses. This was done in the absence of the wife and the facts of the purported talaq were not communicated to her. Later, on 23rd March 2006, the petitioner filed a suit for the restitution of conjugal rights (hereafter, RCR). Following this, on 13th April 2006, the matter was settled, and the wife returned to cohabit with the husband. After her return, a second nikah was performed between the two on 19th April 2006.

Once again, as disputes arose between the two, the petitioner pronounced talaq on 28th August 2006, following which they started living separately. Soon after, on 6th September 2006, the wife filed a complaint before the CAW cell. During the inquiry, the complainant discovered that the petitioner had already given her talaq in October 2005. The complainant then contended that the petitioner had fraudulently induced her into having sexual intercourse with him on the 13th and 19th of April 2006. She then filed another complaint on 12th December 2006, regarding the alleged rape committed by the petitioner on the above-mentioned dates. An FIR under Section 376 of the Indian Penal Code was also registered on the same date.

The petitioner’s bail application was dismissed by the sessions court on the grounds that he had not disclosed the factum of talaq, either to the court to the complainant, in his suit for RCR. It was held that the pronouncement of triple talaq amounts to talaq-e-biddat which is an irrevocable and instant form of divorce. In this sense, the complainant was no longer the petitioner’s wife after his pronouncement of talaq in October 2005. As far as re-marriage is concerned, there should be an intermediate marriage with another person, consummation of that marriage, divorce and thereafter the applicant can remarry the complainant. Therefore, the second marriage did not fulfil the requisite criteria and cannot be termed as valid. In line with this, it was also held that the consent given by the complainant on the 13th and 19th of April, cannot be termed as free consent. Following this, the petitioner appealed to the High Court.

Relevant Issues

1. What is the legality of triple talaq/talaq-e-biddat?
2. Whether the purported talaq of October 2005 was valid?
3. Whether the petitioner can be held liable for rape?

Relevant Observations

1. The High Court presided over by the Hon’ble Judge Justice Badar Durezz Ahmed, was of the opinion that while Courts in India have held talaq-e-biddat to be valid, the fact remains that it is considered to be sinful by all schools of law. Talaq-e-biddat is an instant and irrevocable form of divorce, bringing about extreme misery to the divorced women and leaving men with no chance to undo the wrong or bring about a reconciliation. In this sense, he held that triple talaq should be considered as one revocable talaq. This would allow the husband to think his decision over and revoke the talaq while making sincere attempts at reconciliation.

1. With respect to the second issue, it was noted that the pronouncement of talaq materially alters the status of the wife, including her right to residence, maintenance, mahr, custody of children etc. If she is not informed of such pronouncement, she will fail to exercise these rights that have been made available to her. Furthermore, in the case of revocable talaq, the iddat period is for both parties to rethink and attempt reconciliation. However, if the wife is unaware of such pronouncement, it would be impossible for both parties to reconcile. Therefore, while it may not be essential for talaq to be pronounced in the presence of the wife, such pronouncement must be communicated to her at the earliest for the talaq to take effect. Moreover, the talaq of October 2005 was given in a fit of rage where the husband had lost control of himself. Hence, such a talaq cannot be accepted as valid. There was also no attempt at reconciliation between both parties in the manner suggested by Muslim law. Therefore, it was observed that the purported talaq of October 2005 was not valid due to the non-communication of the talaq to the wife, no reasonable cause for the pronouncement of talaq and no attempt at reconciliation between the two.

1. Given that the purported talaq of October 2005 was invalid, it did not affect their marriage. Consequently, the complainant continued to be the petitioner’s wife even on the dates of the 13th and 19th of April 2006, when the alleged rape had taken place. Therefore, the petitioner could not be charged with the rape of his wife, which is an exception under Section 375 of the Indian Penal Code.

Final Decision

The High Court held the purported talaq of October 2005 to be invalid. This conclusion was based on three main reasons. Firstly, talaq must be pronounced for a reasonable cause and cannot be given in anger. Second, preceding the pronouncement of talaq, an attempt at reconciliation between the two parties is of utmost importance and only if such an attempt fails can the talaq be affected. Finally, while talaq may be pronounced in the absence of the wife, it must be communicated to her for the validity of such talaq. Therefore, the mere pronouncement of talaq does not amount to the dissolution of the marriage. Furthermore, the offence of rape could not be made out against the petitioner. Given that the marriage between the two was still subsisting, the husband’s act would fall within the purview of marital rape, which is an exception under Section 375 of the IPC. Therefore, the FIR and all pending proceedings arising from the said FIR against the petitioner were quashed.

Landmark Precedents

• Sri Jiauddin v. Mrs Anwara Begum (1981)[1]

In this case, the wife had filed a petition for maintenance. The husband, Jiauddin contended in a written statement that he had already pronounced talaq and that Anwara Begum was no longer his wife. Herein, no proof of the pronouncement of talaq was produced. Once the case reached the High Court, it was observed that while Muslim marriages are essentially contracts, there is a degree of sanctity attached to the same. Therefore, it was held by Baharul Islam J. that the dissolution of Muslim marriages is permitted but only under exceptional circumstances. He further stated that, “…talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters… If the attempts fail, talaq may be effected.” In other words, an attempt at reconciliation by two relatives – one from each side – is an essential condition preceding talaq.

• Shamim Ara v. State of U.P. (2002)[2]

Shamim Ara was married to one Abrar Ahmad since 1968 in accordance with Muslim Personal Law. Similar to the case mentioned above, the appellant had applied for maintenance under Section 125 of the Criminal Code of Procedure. To avoid paying maintenance, the husband submitted a written statement declaring that he had already divorced the appellant by the pronouncement of talaq. Thereafter, the Supreme Court noted that the husband had no proof that talaq had been pronounced. Furthermore, it was held that the husband had no reasonable justification to divorce his wife and there was no effort to reconcile preceding the talaq. Therefore, the Supreme Court held that their marriage was not dissolved and the husband’s liability to pay maintenance continued.

Critical Analysis of the Judgement

While discussing the legality and effect of triple talaq, the court recognized talaq-e-biddat’s sinful nature and the misery which it causes to women. Distinguishing its usefulness from the past to that in the present times, the court holds that talaq-e-biddat should be considered as one revocable talaq instead of three, across all schools of Islam. The court further opines that this change is necessary as it gives the husband ample time and opportunity to think and revoke the talaq during the iddat period. Elaborating on the importance of reconciliation in a marriage, the court holds that talaq must be given for a reasonable cause which is preceded by an attempt at reconciliation and only if their attempts fail, should the talaq be effected. Moreover, it was understood that pronouncement alone does not amount to the dissolution of the marriage. With regard to the manner of pronouncement, talaq may be pronounced in the absence of the wife but for the effectiveness of such talaq, it must be communicated to her. This is essential so that the wife is not deprived of her rights that become available to her after the pronouncement of talaq.

The judgment does provide some much-needed clarity on the debate of whether triple talaq is valid in the eyes of the law. However, it completely avoids the topic of how most Muslim personal laws are discriminatory in nature, treating women as the property of their male guardians with no agency of their own. Instances in this particular case such as forcing the woman to leave her matrimonial home due to the non-fulfilment of dowry demands and using marriage as a free pass to have sexual intercourse with one’s wife, all point towards a highly patriarchal culture where gender equality is, to some degree, non-existent. While the judgement is liberal in its approach, it leaves these issues unaddressed. In my opinion, the entire concept of talaq is extremely sexist, where women have no say in their marriages and no control over their marital status either. I believe the Court ought to have dealt with these issues as well, all the while protecting and preserving women’s autonomy and their right to be equal members of their own marriages.

Socio-Political Implications

Masroor Ahmed v. NCT of Delhi was considered the leading case on triple talaq before the declaration of the practice’s unconstitutionality in 2017[3]. The considerably liberal 2008 judgement held that talaq cannot be given without a reasonable cause and should be preceded by a sincere attempt at reconciliation. Such a judgement alleviated much of the hardship faced by women due to arbitrary pronouncements of talaq by their husbands. Not only that but communicating the pronouncement of the talaq to the wife had become necessary for it to take effect. Hence, no husband could divorce their wife whenever it was convenient for them. Lastly, the Hon’ble Judge believed the practice of triple talaq to be sinful and did not advocate its use. He regarded talaq-e-biddat as one revocable talaq which would reduce the large number of divorces that occurred based on the husband's whims and fancies, allowing them time to rethink and revoke their decision to pronounce talaq.

[1] (1981) 1 Gau.L.R. 358

[2] (2002) 7 SCC 518

[3] (2017) 9 SCC 1