RANCHI: In a significant judgement, the Jharkhand High Court has ruled
that an ex-husband’s refusal to remarry his former wife after ‘halala’
does not constitute a cognizable offence.
Justice Sanjay Kumar Dwivedi, while hearing an anticipatory bail
application filed by Imran Hussain, said a woman cannot compel her
ex-husband to remarry or file a fresh criminal case solely because he
refused to do so.
According to the petition, the couple had divorced earlier, after
which the woman married another man as part of the halala process
under Muslim personal law. She later expressed a desire to remarry her
first husband, but he refused.
Following his refusal, the woman filed a criminal complaint against
him at Dhanwar police station in Giridih under various provisions of
the Bharatiya Nyaya Sanhita (BNS), the Dowry Prohibition Act and the
Muslim Women (Protection of Rights on Marriage) Act, 2019. The
ex-husband subsequently approached the high court seeking anticipatory
bail.
The advocate appearing on behalf of the petitioner informed the court
that he was the woman's former husband. The woman had previously
lodged a case in 2020 based on similar allegations, but a settlement
was subsequently reached between the two parties. The ex-husband also
claimed that his wife used to harass him over issues relating to
insufficient financial support and his inability to provide a lavish
lifestyle.
The defence counsel submitted that a complaint based on similar
allegations had earlier been filed and later converted into an FIR. In
the meantime, the couple divorced and the woman has since remarried.
The complainant opposed the the ex-husband's plea for anticipatory
bail. Her counsel informed the court that a settlement had been
reached in the earlier case, during which the ex-husband had assured
the woman that he would remarry her, but later refused to do so.
Considering the facts of the case, the HC noted that it was an
admitted fact that the woman had previously lodged a case in 2020
based on similar allegations, which was later settled. A divorce had
already taken place and the woman had married another man.
She later expressed a desire to remarry her first husband, but he
refused. The court observed that a husband's refusal to remarry does
not provide the wife with grounds to file a new criminal case or FIR
solely on that basis. Such a refusal by the husband is neither a
cognizable offence nor unlawful under Muslim personal law or general
criminal law.
“Admittedly, the divorce has taken place and the informant has already
solemnized marriage with another man. If the husband refuses, the wife
does not have a basis to file a fresh criminal case or the FIR,
because the husband’s refusal does not amount to a cognizable offence
or a legal wrong under Muslim personal law or the general criminal
law,” stated the court order.
The documents do not identify any provision under which the wife can
compel re-marriage or file a fresh suit based solely on the husband’s
refusal after halala is completed, I am inclined to grant anticipatory
bail to petitioner, it said.
