Suggesting a rethink on the triple talaq way of terminating Muslim marriages, the Delhi High Court has ruled that a couple's divorce is invalid if the husband pronounces talaq in anger or fails to communicate it to his wife, leaving no scope for reconciliation.
NEW DELHI: Suggesting a rethink on the triple talaq way of terminating Muslim marriages, the Delhi High Court has ruled that a couple's divorce is invalid if the husband pronounces talaq in anger or fails to communicate it to his wife, leaving no scope for reconciliation.
"It (triple talaq) is an innovation which may have served a purpose at a particular point of time in history but, if it is rooted out such a move would not be contrary to any basic tenets of Islam or the Quran or any ruling of the Prophet Muhammad," said Justice B D Ahmed.
Justifying his suggestion on rooting out triple talaq system, Justice Ahmed said the "harsh abruptness" of triple talaq has brought about extreme misery to women and even the men who are left with no chance to undo the wrong or any scope to bring about a reconciliation.
The court's observations on triple talaq were made while disagreeing with a woman's plea that her husband's physical relationship with her after pronouncing triple talaq, in her absence, amounted to rape.
Quashing rape charge against, Masroor Ahmed, the court said, "First of all, it (talaq) was given in extreme anger, secondly it was never communicated to the complainant (wife).
Therefore the rape is not made out," the Court said.
Masroor's wife, Aisha, alleged that her husband had physical relation with her without disclosing the fact that he had pronounced talaq, when she was away to her parental home.
The court held that since the couples divorce was invalid, the husband's physical relationship with his legally wedded wife, subsequent to his pronouncement of a talaq, would not amount to rape.
With this observation, Justice Ahmed disposed of Masroor's bail application as it became infructuous following the couple's out of court settlement on September one.
The Court stated that in the present case, couple's divorce did not fulfill the vital ingredients for effective talaq.
"On the date it is communicated to wife... if not communicated at all, the talaq would not take effect," the Judge observed.
In April, 2004, Ahmed got married to Aisha in accordance with Muslim rites and out of the wed lock the couple was blessed with a daughter.
She said that last year she had visited her parent's house and was not able to come back to her matrimonial home despite her husband's repeated request.
However, on April 13, 2006, she returned to her matrimonial home and got to know about her husband's pronouncement of talaq on April 19, she added.
In her absence, Masroor had pronounced talaq in the presence of her in-laws and failed to communicate it to Aisha.
She alleged that without informing her about the talaq, Masroor had physical relation with her. Since she was not his legal wife during April 13 to 19, his sexual relation with her amounted to rape, she added.
Justice Ahmed said "the petitioner and the complainant continued as husband and wife during the relevant period (April 13-19,2006)... the offence of rape is not made out".
"The pronouncement of the triple talaq would be valid provided it is communicated to the wife and the talaq would be effective from the date the pronouncement is communicated to the wife. In case it is not communicated at all...a vital ingredient of pronouncement is missing and such a talaq would not take effect," the order said.
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