LAHORE: The Lahore High Court has held that a husband cannot be prosecuted for rape of his wife unless the pronouncement of divorce takes legal effect in accordance with the mandatory requirements of the Muslim Family Laws Ordinance (MFLO) 1961.
Justice Tariq Saleem Sheikh issued the ruling on a petition filed by Jameel Ahmad seeking the quashing of an FIR registered at Police Station City Liaqatpur under Section 376 of the Pakistan Penal Code, which prescribes punishment for rape.
The complainant had alleged that the petitioner lured her into cohabitation and later married her on April 22, 2024. She claimed she later discovered he was already married and, upon her protest, he divorced her on Oct 14, 2024.
According to the FIR, three days later — on Oct 17 — the petitioner and a co-suspect allegedly entered her home at night, where the petitioner raped her at gunpoint.
The petitioner, however, denied the allegation of a live-in relationship and contended that the FIR was fabricated as retaliation for the divorce. He admitted issuing a written Talaq deed but argued that he had revoked the divorce on Dec 23, 2024, within the 90-day statutory reconciliation period.
Court quashes FIR registered against petitioner
He further submitted that he had filed a suit for restitution of conjugal rights, which remained pending.
In his judgement, announced at the court’s Bahawalpur bench, Justice Sheikh noted that the central question before the court was whether Talaq had legally taken effect by Oct 17, 2024 — the date of the alleged offence.
The judge undertook a survey of Islamic jurisprudence as well as statutory requirements under Section 7 of the MFLO, observing that although Islamic law recognises multiple forms of Talaq, Pakistani law mandates a specific legal mechanism.
Section 7 requires a notice of Talaq to be provided to the chairman of the relevant union council, and mandates a 90-day reconciliation period. Talaq does not become effective unless this period expires without revocation.
The judge noted that the petitioner had dispatched notice of Talaq to the union council but had subsequently revoked it before the expiry of the statutory period.
Citing Supreme Court precedents, Justice Sheikh reiterated that failure to comply with statutory requirements renders the divorce legally ineffective, even where a Talaqnama exists under Islamic law.
The judge observed that under Section 7(3) of MFLO, the parties remain husband and wife until either the 90-day period expires or the husband explicitly revokes Talaq, whichever comes first.
He concluded that on Oct 17, 2024, the date of the alleged incident, the marriage had not dissolved in the eyes of the law.
Under Shariah, the judge noted, a crime is an act prohibited by divine injunction and punishable by Hadd or Ta’zir penalties.
In the present case, Justice Sheikh maintained, the marital bond between the parties continued to exist legally at the time of the alleged occurrence. He said the petitioner’s conduct may be considered immoral or inappropriate under religious or social norms, but prosecution under Section 376 of PPC could not be sustained as the essential ingredients of the offence were not made out on the FIR’s own assertions.
With these observations, the judge allowed the petition and quashed the FIR registered against the petitioner.
Published in Dawn, December 13th, 2025
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