Dr Anam Wasey

The Allahabad High Court’s refusal to quash a first information report (FIR) alleging repeated rape under the guise of nikah halala is a significant reminder of a constitutional first principle: criminal law admits of no religious exception. In holding that allegations attracting the Protection of Children from Sexual Offences (POCSO) Act cannot be defeated by invoking Muslim personal law, the High Court has reaffirmed a proposition that is central to India’s constitutional order – personal law may regulate private relationships, but it cannot immunise conduct that Parliament has declared to be criminal. The case is about criminal law, not theology Much of the public discussion surrounding the judgment has centred on nikah halala, a practice that has long generated legal and theological debate. Yet, the true significance of the decision lies elsewhere. The High Court did not pronounce upon the religious validity or constitutional legitimacy of nikah halala. Nor did it seek to reform personal law through judicial intervention. It addressed a far narrower but far more consequential question: whether allegations disclosing offences under the Bharatiya Nyaya Sanhita (BNS) and the POCSO Act can be stifled at the threshold merely because the acts are claimed to have occurred within the framework of a religious practice. Its answer was unequivocal – they cannot. Also, it brutally misuses and maligns the sacredness of the personal law in question, which clearly, in any way, does not promote or encourage such heinous acts. That conclusion is firmly anchored in established principles governing criminal procedure. The jurisdiction to quash criminal proceedings is an extraordinary one, intended to prevent abuse of process, not to short-circuit legitimate investigations. At the preliminary stage, courts are concerned only with whether the allegations, if accepted as true, disclose the commission of a cognisable offence. Questions relating to credibility, motive and evidentiary sufficiency belong to the trial court. To terminate proceedings involving allegations of repeated sexual assault without investigation would have undermined both due process and public confidence in the administration of justice. Why POCSO leaves no room for exceptions The Allahabad High Court’s reliance on the POCSO Act is particularly noteworthy. Parliament enacted POCSO as a comprehensive child protection statute, recognising the inherent vulnerability of children and their inability to provide legally meaningful consent to sexual activity. The legislation is deliberately religion-neutral and applies uniformly across communities. Any suggestion that personal law could dilute its operation would not merely weaken the statute, it would erode the constitutional guarantee of equal protection of the laws. A child’s entitlement to dignity, bodily integrity and legal protection cannot depend upon the religious identity of either the child or the accused. Religious freedom has constitutional limits The judgment also illustrates the proper constitutional relationship between religious freedom and criminal law. Article 25 guarantees every individual the freedom to profess, practice and propagate religion. However, that guarantee has never been absolute. The Constitution expressly subjects religious freedom to public order, morality, health and other fundamental rights. Indian constitutional jurisprudence has consistently recognised that while the State ordinarily refrains from interfering with matters of faith, it retains both the authority and the obligation to prohibit practices that infringe individual rights or violate statutory law. The issue before the High Court was therefore not one of theology but of constitutional governance. Gender justice and constitutional morality Equally important is the judgment’s contribution to the discourse on gender justice. Sexual violence frequently occurs within structures of authority, dependency and social coercion. Where allegations arise that religious or familial authority has been invoked to facilitate exploitation, the criminal justice system must respond with particular sensitivity. Courts must ensure that doctrines of personal law are not transformed into procedural barriers that prevent survivors from accessing justice. By permitting the investigation to proceed, the High Court recognised that allegations of this gravity deserve adjudication through evidence rather than premature judicial intervention. The decision also resonates with the Supreme Court’s evolving understanding of constitutional morality. From Shayara Bano v Union of India, which invalidated instant triple talaq, to Indian Young Lawyers Association v State of Kerala (the Sabarimala case), the top court has repeatedly emphasised that constitutional rights provide the normative framework within which personal laws and religious practices operate. Although the Allahabad High Court did not invoke constitutional morality explicitly, its reasoning reflects the same underlying commitment: individual dignity cannot be subordinated to claims of custom where criminal liability is alleged. One Constitution, one criminal law It is important, however, to appreciate the limits of the ruling. The judgment neither criminalises nikah halala as a religious practice nor pronounces upon its constitutional validity. Those questions remain matters for legislative policy or future constitutional adjudication. What the court has done is both narrower and more fundamental – it has ensured that allegations of rape and child sexual abuse receive the impartial investigation that the criminal law mandates. That restraint enhances, rather than diminishes, the legitimacy of the decision. At a time when debates surrounding personal law are often reduced to ideological binaries, the judgment offers a more principled constitutional approach. It neither privileges nor disparages religion. Instead, it affirms that the Constitution establishes a common minimum standard of legal accountability from which no individual or community is exempt. Personal laws continue to enjoy legal recognition in matters of family and succession, but they cannot operate as enclaves insulated from criminal jurisprudence. Ultimately, the decision is not about the supremacy of one legal system over another. It is about preserving the integrity of the rule of law itself. A constitutional democracy cannot permit parallel standards of criminal responsibility based on religious identity. The rights to equality, dignity and bodily autonomy are universal constitutional guarantees. When those rights are alleged to have been violated, the law must speak in one voice. The Allahabad High Court has ensured that it does.

Dr Anam Wasey

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