No Place For Pleading Personal Laws: Allahabad High Court Refuses To Quash FIR Against Man Accused Of Committing Rape Under Guise Of Triple Talaq & Nikah Halala

The High Court was considering a writ petition whereby the accused persons sought quashing of the FIR registered under Sections 85, 115(2), 64, 351(2), 61(2)(a), 70(2) of the Bharatiya Nyaya Sanhita, 2023, Section 3,4 of the Muslim Women (Protection of Rights on Marriage) Act, 2019 and Sections 5(l),6 and 17,18 of the Protection of Children from Sexual Offences Act, 2012.

The Division Bench of Justice J.J. Munir and Justice Tarun Saxena held, “Upon hearing learned counsel for parties, we are of opinion that this is a case, prima facie, where the crime of ravishing a minor girl, taking refuge behind halala, and then, much later in life, of gang rape behind the same veil of doing a halala, has been committed, on the second occasion, in a far more crude and outlandish manner. When it comes to criminal law, unless the law itself makes exception, which it rarely does, there is absolutely no place for pleading personal laws governing marriage, etc., if, interlaced with a matrimonial relationship, a crime were committed.”

“From all this account that figures in the FIR and the statement of the prosecutrix, her age at the time when she was first married and did the first halala prima facie constitute statutory rape and offences under POSCO Act, and then, the allegations about the second halala, which, prima facie, constitutes a case of gang rape, we are of opinion that this matter requires thorough investigation. It is certainly not a case where the prosecution can be quashed at the threshold”, it added.

Senior Advocate Shashi Kant Shukla represented the Petitioner while Advocate Shyam Kumar Yadav represented the Respondent.

Factual Background

The first informant alleged that she was forced to marry one Azhar Nawaz and her nikah was performed with him. She was allegedly barely 15 years old at the time. After the marriage of the parties, Azhar would beat up the prosecutrix, and in 2016, he ended the marital bond with the pronouncement of a Triple Talaq. After the passage of a few months, Azhar came back to the prosecutrix with a proposal to marry her a second time. He got the informant to perform a halala nikah with the co-accused.

It was alleged that the second nikah of the prosecutrix with Azhar was performed, the parties cohabited, and of the wedlock of the parties, a daughter was born. After the birth of the daughter, Azhar's behaviour towards the prosecutrix worsened. He resumed beating her, and in 2021, he divorced the informant a second time. During her iddat period and within 11 days of the divorce, he married another woman.

Reasoning

On a perusal of the facts of the case, the Bench noted that the timeline of the events showed that the prosecutrix was married in 2015 and in January, 2016, she suffered the first of her triple divorces. In November 2016, she was made to undergo halala with one of the co-accused, and by December, 2016, the prosecutrix was still a minor. The Bench further noticed that she underwent the halala in order to remarry her husband a second time, which happened in April 2017, two years after her first marriage.

The Bench noted that the accused contacted the prosecutrix again and told her that he wanted his daughter and that he would divorce the other woman. It was on account of her daughter that the prosecutrix started living with Azhar again. The Bench also noticed that Shahnawaz Chaudhary, Hakeem Nishat and Azhar Nawaz asked her to perform halala again and on the occasion, Shahnawaz and Nishat forcibly ravished her in the name of halala.

The Bench further found that a bogus nikah was performed with Azhar Nawaz, and the two started cohabiting as man and wife. However, when the daughter's school documents were brought up, the prosecutrix’s name was absent. When the prosecutrix demanded her name to be there, Azhar warded off the demand. It was further noted that when the prosecutrix explored the matter and found out that the nikah performed the third time was bogus, and virtually, Azhar was establishing carnal relations with her, making her falsely believe that she was his wife.

Considering the matter in its entirety as well as the age of the prosecutrix at the time when she was first married and did the first halala, the Bench held that the same prima facie constituted statutory rape and offences under the POSCO Act. As per the Bench, the allegations about the second halala prima facie constituted a case of gang rape.

“In the totality of circumstances, we are minded to say that this case presents the picture of a part of our society, that is far removed from the constitutional values and the constitutional 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, we say, prima facie again, militates against the constitutional aspirations and guarantees, of which we have just now spoken. In fact, the entire facts, that have so far come on record, are shocking to the conscience”, the Bench stated.

The Bench concluded the matter by dismissing the petition and observing that all the accused, some of whose names had surfaced during investigation, were involved in an enterprise, playing whatever roles they did, which, put together, constituted, prima facie, crimes under the laws of the land.

Cause Title: Tayyab v. State of U.P. and others (Neutral Citation: 2026:AHC:129754-DB)

Appearance

Petitioner: Senior Advocate Shashi Kant Shukla, Advocate Mohd. Shakib

Respondent: Advocate Shyam Kumar Yadav, Additional Government Advocate Shashi Shekhar Tiwari

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