Jammu, Aug 20 The High Court of Jammu and Kashmir and Ladakh has refused to quash an FIR against a Kupwara man accused of divorcing his wife through instant triple talaq sent through text message.
A single-judge Bench of Justice Javed Iqbal Wani was hearing a petition filed by petitioner Shabir Ahmad Malik under Section 482 of the CrPC challenging the FIR registered under the Muslim Women (Protection of Rights on Marriage) Act, 2019.
In September 2022, an FIR was filed at Women’s Police Station, Kupwara on the basis of a complaint by Malik’s wife, alleging that he had divorced her by pronouncing triple talaq via a mobile text message. In his plea, Malik contended that he had not committed any offence under the 2019 Act, arguing that the FIR was vague and the pronouncement of Talaq-e-Ahsan did not amount to a criminal offence.
On the other hand, the complainant's wife argued that she was divorced by way of “instant triple talaq” through a text message, and placed screenshots of the message on record.
After hearing the submissions, Justice Wani opined that prima facie, the allegations of instant triple talaq through a text message amounted to an offence under the law. He observed that the 2019 Act clearly defines talaq as “talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.”
The J&K and Ladakh High Court noted that Section 3 of the Act renders any such pronouncement “void and illegal,” while Section 4 prescribes punishment of up to three years’ imprisonment along with a fine.
“The complainant/respondent 2 herein alleged to have been divorced by way of triple talaq by the petitioner herein on her brother’s mobile phone and the same came to be communicated to the respondent 2 herein and the screenshots of the said text messages stand extracted and placed as evidence in the matter by the investigating agency, which position has not been disputed or denied by the petitioner herein. Thus, reliance placed by the petitioner on the Talaq Nama…pales into insignificance,” observed Justice Wani.
Refusing to quash the FIR, the J&K and Ladakh High Court, citing the Supreme Court judgement in Priti Saraf v. State of NCT of Delhi case, held that inherent powers cannot be used to prematurely end a prosecution. “This Court is not inclined to examine inherent power and scuttle the prosecution at its inception,” said Justice Wani, dismissing the petition.
The J&K and Ladakh High Court clarified that its observations were limited to the disposal of the quashing petition and “shall not be deemed to be an expression of any opinion qua the guilt or innocence of the petitioner.”
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