Allahabad HC Refuses to Quash FIR Alleging Rape and Gang Rape Committed Under Guise of Nikah Halala

A Division Bench of the Allahabad High Court dismissed four writ petitions seeking to quash an FIR alleging statutory rape of a minor and subsequent gang rape carried out under the pretext of nikah halala.

On 1 July 2026, a Division Bench of the High Court of Judicature at Allahabad, comprising Justice J.J. Munir and Justice Tarun Saxena, dismissed four criminal miscellaneous writ petitions that collectively sought to quash an FIR registered on 9 December 2025. The FIR, Crime No. 348 of 2025 at Police Station Saidnagli, District Amroha, alleged offences including rape, gang rape, and criminal conspiracy under the Bharatiya Nyaya Sanhita 2023, the Muslim Women (Protection of Rights on Marriage) Act 2019, and the Protection of Children from Sexual Offences Act 2012. The bench, in a judgment authored by Justice J.J. Munir, held that personal law is not a shield against penal statutes and that the matter disclosed a prima facie case of statutory rape and gang rape requiring thorough investigation.

The Allegations in the FIR

The FIR was lodged by the prosecutrix, who alleged that she was forced into marriage with Azhar Nawaz on 25 April 2015 when she was barely 15 years old. After Azhar pronounced Triple Talaq in January 2016, he sought to remarry her. In November 2016, he arranged what was presented as a halala nikah, taking the prosecutrix — then aged 16 according to the informant — to Town Siyana, Bulandshahr, where co-accused Maulana Qayyum forcibly established carnal relations with her. The halala nikah was performed by Kari Murtza. A second nikah between the prosecutrix and Azhar Nawaz followed in April 2017, and a daughter was born on 1 April 2018.

The marriage deteriorated again. On 24 January 2021, Azhar pronounced Triple Talaq a second time and, during the prosecutrix's period of iddat, married another woman, Nayab Akhtar. Years later, Azhar approached the prosecutrix again, telling her that Nayab Akhtar could not bear children and that he wished to resume family life for the sake of their daughter. Brothers and associates of Azhar — co-accused Shahnawaz Chaudhary and Hakim Nishat — persuaded her to agree to a third marriage.

When she agreed, Shahnawaz Chaudhary and Hakim Nishat told her that because her marriage with Azhar had ended twice, she would have to undergo halala twice over. On 19 February 2025, the prosecutrix alleged that Shahnawaz Chaudhary and Hakim Nishat ravished her on the pretext of performing halala, threatening to kill her and her daughter if she resisted. That same evening, a nikah with Azhar Nawaz was conducted by Maulana Nadim in the presence of several of the accused. The prosecutrix later came to know that this nikah was bogus and that Azhar had been cohabiting with her under a fraudulent pretence.

The prosecutrix stated that her consent to the nikah had been given under a false belief, rendering it consent obtained by fraud. She sought registration of a crime against all named men and strict legal action.

Charges and Addition of Accused During Investigation

The FIR initially named certain accused under Sections 85, 115(2), 64, 351(2), 61(2)(a), and 70(2) of the BNS, Section 3/4 of the Muslim Women (Protection of Rights on Marriage) Act 2019, and Sections 5(l)/6 and 17/18 of the POCSO Act. After the prosecutrix's statement was recorded under Section 183 and Section 180 of the Bharatiya Nagarik Suraksha Sanhita 2023 before the Judicial Magistrate, the Investigating Officer added six more co-accused, including the petitioner Tayyab, bringing the total to nine. The added charges included Section 61(2)(a) BNS and Sections 5(l)/6 and 17/18 POCSO Act.

A Medical Board report dated 16 December 2025, based on an ossification test and dental evaluation, estimated the prosecutrix to be above 25 years in 2025. The bench observed that working backwards, she would have been above 16 years at the time of her first marriage in 2015 — and, critically, still a minor when the first halala was performed in November 2016.

The Petitioners' Arguments

Mr. Shashi Kant Shukla, Senior Advocate, appeared for Tayyab and petitioners in two of the connected writ petitions. His principal contentions were that in 2016, Triple Talaq was permissible under Shariat law in India; that nikah halala is a valid ritual under Islamic law; and that in divorce proceedings in 2021, the prosecutrix had declared her age as 24 years, which, worked backwards, would place her at 18 years at the time of the 2015 marriage. He also argued that the Quran does not specify a numerical minimum age for marriage and that marriage with a minor under Muslim personal law is not void but voidable, becoming valid if not repudiated within one year of attaining majority.

On the specific accused, he submitted that Tayyab, a 71-year-old with no criminal antecedents, had merely accompanied Azhar Nawaz to Siyana in November 2016. He described Kari Murtza as a teacher of Islamic studies, not a Qazi who solemnises nikah. Shahnawaz Chaudhary and Hakim Nishat were, he argued, falsely implicated because they are a brother and nephew of Azhar Nawaz. The overall motive attributed to the FIR was an attempt to pressurise Azhar Nawaz to relinquish custody of the daughter and five bigha of land he owned.

Mr. Sandeep Kumar Srivastava appeared for the petitioner in Criminal Misc. Writ Petition No. 6019 of 2026 and advanced similar contentions regarding the marginal role of his client.

The State and Informant's Response

The Additional Government Advocate, Mr. Shashi Shekhar Tiwari, submitted that the FIR disclosed serious cognisable offences including rape and gang rape, with POCSO Act applicability flowing from the prosecutrix's age at the time of the first incident. He opposed quashing and urged thorough investigation.

Mr. Shyam Kumar Yadav, appearing for the informant as respondent no. 5, argued that the halala in November 2016 was committed on a minor of 16 years, and drew on the Supreme Court's ruling in Independent Thought v. Union of India, (2017) 10 SCC 800, that any sexual act with a minor — even one notionally within the framework of personal law — constitutes rape. He argued that the events of 19 February 2025 constituted gang rape under the BNS, carried out under the mask of a double halala.

Counsel for the informant also invoked Section 69 BNS, which penalises sexual intercourse by deceitful means, and cited Articles 21 and 14 of the Constitution on dignity and equality. He pointed to CEDAW 1993 — its Articles 1, 2, and 5 — and relied on Neeharika Infrastructure Private Limited v. State of Maharashtra, (2021) 19 SCC 401, for the proposition that High Courts should be extremely slow to quash FIRs where a prima facie case of serious sexual violence is established.

Counsel further informed the bench that the anticipatory bail application filed under Section 482 BNSS by co-accused Nadim (No. 2417 of 2026) had been dismissed, and that the anticipatory bail application of Tayyab himself (No. 2522 of 2026) had also been dismissed. He also pointed to a fresh FIR, Crime No. 122 of 2026, lodged on 30 April 2026 under Sections 352(4) and 232 BNS, arising from continued threats by the accused against the prosecutrix.

The Court's Reasoning

The bench held, at the outset, that “unless the law itself makes exception, which it rarely does, there is absolutely no place for pleading personal laws governing marriage” when a crime is committed interlaced with a matrimonial relationship.

On the first halala in November 2016, the bench found it prima facie clear that the prosecutrix was still a minor at the time. It referred to Independent Thought v. Union of India to note that Exception 2 to Section 375 of the Indian Penal Code was read down and the POCSO Act given overriding effect over all other laws, so that there was “absolutely no possibility of any carnal relations, within or without marriage, between a man and a woman below the age of 18 years.” The bench noted that Exception 2 to Section 63 BNS now expressly reflects this position by limiting the marital exception to a wife not being under eighteen years of age.

On the second halala in February 2025, the bench found that the allegations, prima facie, constituted gang rape, describing the conduct as carried out “in a far more crude and outlandish manner.” It observed that the statement of the prosecutrix under Section 183 BNSS contained nothing incredible that would warrant interference at the threshold.

The bench expressly declined to examine the truth or falsehood of individual allegations, noting that it was hearing a petition to quash an FIR and not conducting a trial. It accepted that some petitioners may have played more marginal roles — as abettors or conspirators rather than principal offenders — but held that this did not entitle them to quashing of the FIR and termination of investigation at an incipient stage.

On the broader picture, the bench observed that the case presented a part of society “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.” It was careful to add that it was not pronouncing on the constitutionality of halala as a practice, since no such challenge was framed before it. It described the totality of the facts on record as “shocking to the conscience.”

Outcome

All four writ petitions — Criminal Misc. Writ Petition No. 8465 of 2026 and the connected petitions Nos. 2789, 3132, and 6019 of 2026 — were dismissed on 1 July 2026. All interim orders granted in any of the petitions were simultaneously vacated. The judgment was marked as both speaking and reportable.