Prayagraj (UP), Jul 3 (PTI) Holding that the POCSO Act prevails over personal law, the Allahabad High Court refused to quash an FIR over repeated rape under the guise of ‘nikah halala’.
The high court accordingly refused to quash an FIR lodged against nine persons accused of raping the informant when she was a minor during a 2016 nikah halala, and later subjecting her to gang rape as an adult during a second, ‘double halala’ in 2025.
Dismissing a writ petition filed by Tayyab and three others, a division bench comprising Justices J J Munir and Tarun Saxena observed that if a minor girl is subjected to carnal relations under the garb of doing a halala, even if she desires to marry a man who has already divorced her, it would certainly attract the provisions of the Protection of Children from Sexual Offences (POCSO) Act, 2012.
An FIR was lodged under various provisions of the Bhartiya Nyaya Sanhita (BNS), the Muslim Women (Protection of Rights on Marriage) Act, 2019 and the POCSO Act, alleging instances of decade-long sexual exploitation at the Saidnagli police station of Amroha district against the accused persons.
During the course of the hearing, the counsel appearing for the petitioners submitted that in 2016, ‘triple talaq’ was still permissible under the Shariat law. He also submitted that nikah halala is a valid ritual. Since the informant did not repudiate it within a year of attaining majority, the marriage was binding, the counsel said.
It was alleged that the FIR was an abuse of process designed to extort property and leverage in a child custody dispute.
On the other hand, the counsels appearing for the state and 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.
The court noted that prima facie, it was a 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 vs 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 court 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 in its judgment dated July 1. PTI COR RAJ KSS KSS
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