POCSO Act Prevails Over Personal Law: Allahabad High Court Refuses To Quash FIR Over 'Repeated Rape' Under Guise Of Nikah Halala

The Court further observed that if a minor girl is subjected to carnal relations under the garb of doing a halala, even if it is her desire to marry a man who has already divorced her, it would certainly attract the provisions of the POCSO Act.

Case in brief

Briefly put, an FIR was lodged under various provisions of the BNS, the Muslim Women (Protection of Rights on Marriage) Act, 2019, and the POCSO Act, alleging instances of decade-long sexual exploitation.

According to the FIR, the victim was coerced into marriage with the principal accused (Azhar Nawaz) in April 2015 when she was only 15 years old. In January 2016, he pronounced Triple Talaq (Talaq-e-Biddat).

After a few months, Nawaz proposed remarriage and he orchestrated a nikah halala in November 2016 with a co-accused, Maulana Qayyum. (As argued before the court, under Islamic law, nikah halala is treated as a Sunnat for a Muslim woman wishing to remarry her husband).

At the time of the initial halala, the prosecutrix was approximately 16 years old, and she stated before the Magistrate under Section 183 BNSS that she did not even understand what halala was, alleging that she was forcibly raped.

In 2017, she remarried Nawaz, but nearly 4 years later, he divorced her again and married another woman.

Subsequently, citing his new wife's inability to bear a child, Nawaz and his brothers convinced her to return and resume their family. She was told by them that since her marriage had ended twice, she would have to perform halala "twice over".

Under this pretext, the brothers and nephews of the accused allegedly raped her on February 19, 2025, while threatening her and her daughter with death if she resisted.

That same evening, a completely bogus nikah ceremony was staged to create a false belief of marriage, thereby allowing Nawaz to maintain deceitful carnal relations with her.

Arguments 

Seeking relief in the case, Senior Advocate Shashi Kant Shukla, appearing for the petitioners, argued that in 2016, Triple Talaq was still permissible under Shariat law. He also submitted that nikah halala is a valid ritual.

It was also contended that under personal law, marriage with a minor is never void but merely voidable, and since she did not repudiate it within a year of attaining majority, the marriage was binding.

They alleged the FIR was an abuse of process designed to extort property and leverage in a child custody dispute

On the other hand, the Additional Government Advocate Shashi Shekhar Tiwari and Advocate Shyam Kumar Yadav, appearing for the informant, submitted that the allegations clearly show a pattern of sexual exploitation involving a minor, followed by gang rape masked as a "double halala".

They stressed that personal laws cannot be used as a shield to commit acts that constitute gang rape under the BNS.

Court's observations 

The bench noted that it was a prima facie case of raping a minor girl, and later subjecting her to gang rape behind the same veil in a "far more crude and outlandish manner".

The Court referred to the landmark Supreme Court judgment in Independent Thought v. Union of India, to stress that the Top Court has given overriding effect to the POCSO Act, eliminating any possibility of lawful carnal relations with a woman below 18 years of age.

The Bench also noted that this protective mandate has now been explicitly codified in the new criminal code under Exception 2 to Section 63 of the BNS.

Finally, the bench rejected the argument that certain accused, such as the Qazi who performed the nikah or distant senior relatives, had only marginal roles in this case. It noted that all the accused were prima facie involved in 'an enterprise', playing whatever roles they did, which together constituted serious crimes under the law.

Therefore, concluding that the allegations required a "thorough" police investigation, the High Court dismissed all connected writ petitions.