Prayagraj: Holding that the Protection of Children from Sexual Offences (Pocso) Act overrides personal law, the Allahabad high court has refused to quash an FIR alleging repeated rape under the guise of nikah halala, observing that personal law cannot be used as a shield to justify sexual offences against a minor.The high court accordingly declined to quash an FIR lodged against nine persons accused of raping the informant when she was a minor during a nikah halala in 2016 and later subjecting her to an alleged gang rape as an adult during a second, or “double”, halala in 2025.Dismissing a writ petition filed by Tayyab and three connected petitions, a division bench comprising Justice JJ Munir and Justice Tarun Saxena observed that if a minor girl is subjected to sexual intercourse under the guise of nikah halala, even if she desires to remarry a man who had earlier divorced her, the provisions of the Pocso Act would unquestionably apply.An FIR was registered at Saidnagli police station in Amroha district under various provisions of the Bharatiya Nyaya Sanhita (BNS), the Muslim Women (Protection of Rights on Marriage) Act, 2019, and the Pocso Act, alleging nearly a decade of sexual exploitation by the accused.During the hearing, counsel for the petitioners argued that in 2016, triple talaq was still recognised under Shariat law and that nikah halala was a valid religious practice. It was further contended that under Muslim personal law, the marriage of a minor is not void but merely voidable, and since the woman did not repudiate the marriage within one year of attaining majority, it remained valid. The petitioners also alleged that the FIR was an abuse of the legal process aimed at extorting property and gaining leverage in a child custody dispute.Opposing the plea, counsel for the state and the informant argued that the allegations disclosed a continuing pattern of sexual exploitation of a minor, followed by an alleged gang rape disguised as a “double halala”. They submitted that personal law cannot be invoked to shield acts that constitute offences under the BNS.The court observed that the allegations disclosed a prima facie case of rape of a minor, followed years later by an alleged gang rape under the same pretext in “a far more crude and outlandish manner”. Referring to the Supreme Court’s landmark judgment in Independent Thought v. Union of India, the bench noted that the apex court had given overriding effect to the POCSO Act, leaving no scope for lawful sexual relations with a girl below the age of 18 years.The bench further observed that this protective principle has now been expressly incorporated into the Bharatiya Nyaya Sanhita through Exception 2 to Section 63.Rejecting the contention that some accused—including the Qazi who solemnised the nikah and certain elderly relatives—played only marginal roles, the court held that all the accused were prima facie part of a common enterprise and that their respective roles warranted a full-fledged investigation.Accordingly, the high court dismissed all four connected writ petitions in its judgment delivered on July 1.
