Allahabad HC refuses to quash FIR over ‘rape’ under guise of nikah halala

The Allahabad High Court has dismissed three petitions filed by a man and co-accused seeking to quash an FIR lodged on a complaint by his wife that she was subjected to gangrape twice under the pretext of ‘nikah halala’, including once when she was a minor, to remarry the same man.

A division bench of Justices JJ Munir and Tarun Saxena observed, “When it comes to criminal law, unless the law itself makes an exception, which it rarely does, there is absolutely no place for pleading personal laws governing marriage if, interlaced with a matrimonial relationship, a crime were committed.”

‘Nikah halala’ is a process under which a divorced Muslim woman has to first marry another person, consummate it and get a divorce from the second husband, if the couple were to remarry after a compromise.

The bench added that the constitutionality of halala is not under challenge before the court. “… But, if under the garb of… halala, a minor girl is subjected to carnal relations… it would certainly attract provisions of the POCSO Act.”

The court further observed, “We are minded to say that this case presents the picture of a part of our society that is far removed from constitutional values and… aspirations of equality, privacy, personal dignity and whatever Articles 21 and 14 of the Constitution stand for…”

“… We do not by any means intend to say that in this petition, that is not framed that way, that we propose or suggest anything about the constitutionality of a given practice… But the circumstances of this case, and whatever has happened… prima facie… militates against the constitutional aspirations and guarantees… In fact, the entire facts that have so far come on record, are shocking to the conscience,” it observed.

The court was hearing three writ petitions jointly seeking to quash an FIR lodged on December 9, 2025, under various BNS sections including 85 (penalising a husband or relatives for physical/mental cruelty), 64 (rape), 70(2) (gangrape), section 3/4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 (for giving triple talaq) and Protection of Children from Sexual Offences (POCSO) Act in Amroha district.

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The case

According to the FIR and the victim’s statement detailed in the court order, the complainant was 15 years old when she first married the main accused in April 2015. Her husband pronounced triple talaq in January 2016.

The FIR claimed that he later convinced her to marry him again, forcing her to undergo halala in November 2016 by having physical relations with a cleric — one of the accused — against her consent. The victim, who was 16 at the time, said she did not understand the practice at that age.

She married her husband a second time in April 2017 and gave birth to a daughter.

The husband allegedly beat her up for not bearing a male child and pronounced triple talaq a second time in 2021, which resulted in a court decree of divorce.

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As per the FIR, the husband married another woman, but after finding out she could not bear a child, he contacted the victim for a reunion, claiming he would divorce his second wife.

The husband’s brother and nephew, both named in the FIR, allegedly forced the victim to undergo halala again, raping her in February 2025. A bogus nikah was then performed with the husband for a third time, the FIR alleged.

The victim later discovered that her name was missing from the mother’s column in her daughter’s school documents; when she questioned it, the husband told her she was not his wife.

The bench observed that the first halala prima facie constitutes statutory rape and offences under the POCSO Act, and the second instance prima facie constitutes a case of gangrape. Dismissing the writ petitions, the court stated in the order that the matter requires thorough investigation.