Personal Laws Cannot Be Used As Shield To Commit Gang Rape Under Garb Of Nikah Halala: Allahabad High Court

"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." Allahabad High Court, in a significant ruling, held that personal laws cannot be used as a defense or a shield to commit acts that constitute serious criminal offenses like gang rape and statutory rape.

A bench of Hon’ble J.J. Munir and Hon’ble Tarun Saxena observed that the practice of Nikah Halala, when used as a ruse for the sexual exploitation of a minor or to facilitate gang rape through deceitful means, falls squarely within the rigors of the Bharatiya Nyaya Sanhita (BNS) and the POCSO Act.

The case arose from a writ petition filed by one Tayyab and others seeking to quash an FIR registered under various sections of the BNS, the POCSO Act, and the Muslim Women (Protection of Rights on Marriage) Act, 2019. The informant alleged that she was forced into marriage at age 15, subjected to Triple Talaq twice, and coerced into multiple Halala rituals which she claimed were actually instances of rape and gang rape perpetrated by her ex-husband’s relatives and clerics.

The primary questions before the court were whether personal laws governing marriage could override the penal provisions regarding sexual offenses against minors and whether the allegations in the FIR disclosed a prima facie case warranting a full investigation. The court was also called upon to determine if the practice of Halala, in the facts of the present case, was used as a tool for gender-based discrimination and cruelty.

Personal Laws Subordinate To Penal Statutes In Criminal Matters

The High Court emphasized that criminal law operates independently of personal religious laws unless a specific statutory exception exists. The bench observed that while the constitutionality of Halala was not directly under challenge in the petition, its use as a "veil" for committing crimes cannot be ignored by the judiciary.

The Court noted that the entire sequence of facts on record, involving multiple divorces and forced sexual acts under religious pretexts, was "shocking to the conscience" and militated against constitutional aspirations of equality and dignity. The bench clarified that matrimonial status does not grant immunity if the underlying acts constitute a crime under the law of the land.

Sexual Acts With Minors Under Personal Law Umbrella Constitute Statutory Rape

Relying on the landmark Supreme Court precedent in Independent Thought v. Union of India, the Court reiterated that any sexual act with a girl below the age of 18 constitutes rape, regardless of marriage or personal law. The bench observed that Exception 2 to Section 63 of the BNS, which mirrors the reading down of the previous Section 375 IPC, explicitly states that sexual acts by a man with his own wife are not rape only if the wife is above eighteen years of age.

The Court pointed out that since the prosecutrix was admittedly a minor at the time of her first marriage and subsequent Halala in 2016, those acts prima facie constitute statutory rape. The bench held that falling back upon personal laws cannot ward off the clear mandate of a penal statute which makes carnal relations with a minor a statutory offense.

"Consent obtained from a minor is no consent."

Halala Practice Used As Mask For Sexual Exploitation And Gang Rape

The Court analyzed the allegations regarding a second Halala incident in 2025, where the prosecutrix was allegedly ravished by her ex-husband's brothers under the pretext that she needed to undergo the ritual twice more to remarry her husband. The bench noted that such allegations, if true, constitute a case of gang rape masked as a religious requirement.

Furthermore, the Court addressed the "bogus nikah" performed in 2025, which the prosecutrix alleged was a fraudulent device to resume carnal relations. The bench noted that under Section 69 of the BNS, sexual intercourse by deceitful means—including a false promise of marriage or suppressing identity—is a specific offense that requires thorough investigation.

"This case presents the picture of a part of our society that is far removed from the constitutional values and aspirations of equality, privacy, and personal dignity."

High Court Should Not Quash FIRs Involving Serious Sexual Violence At Threshold

Applying the guidelines established in Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, the Court held that the High Court must be extremely slow to quash an FIR where a prima facie case of serious cognizable offenses is established. The bench observed that even if some accused played marginal roles as abettors or conspirators, they are not entitled to have the proceedings terminated at an incipient stage.

The Court concluded that the matter requires a deep and thorough investigation to thrash out the roles of all nine accused individuals, including the clerics who allegedly performed the rituals. The bench remarked that the defense of personal law is inapplicable when the mandatory requirements of those very laws, such as the period of iddat, are allegedly ignored to facilitate abuse.

In the result, the High Court dismissed all the connected writ petitions and vacated any interim orders previously granted, allowing the police to proceed with the investigation into the allegations of gang rape and statutory rape.

Date of Decision: July 01, 2026