The Lahore High Court (LHC) has determined that a husband cannot be charged with the rape of his wife unless the divorce is legally finalized under the Muslim Family Laws Ordinance (MFLO) 1961.
This decision was made by Justice Tariq Saleem Sheikh while considering a petition filed by Jameel Ahmad, who requested the dismissal of an FIR against him at Police Station City Liaqatpur under Section 376 of the Pakistan Penal Code, which pertains to rape.
According to the FIR, the complainant claimed that Jameel Ahmad enticed her into living together and subsequently married her on April 22, 2024. Later, she claims, that she found out that he was already married. She claimed that when she confronted him, he divorced her on October 14, 2024.
The complainant said that on October 17, just three days after the divorce, the petitioner and another suspect entered her residence at night, during which the Jameel Ahmad sexually assaulted her at gunpoint.
Jameel Ahmad denied the claim of any live-in arrangement and claimed that the FIR was filed out of vengeance for the divorce. He acknowledged providing a written Talaq deed but contended that he retracted the divorce on December 23, 2024, during the 90-day reconciliation window mandated by law. He also informed the court of a pending petition for restitution of conjugal rights.
In his ruling, delivered at the LHC’s Bahawalpur bench, Justice Sheikh focused on whether the divorce was legally effective by October 17, 2024, the date the alleged incident took place.
The judge considered Islamic law in conjunction with the legal framework under Section 7 of the MFLO, noting that while Islamic law recognizes various forms of Talaq, Pakistani law is tied to a specified legal process.
According to Section 7 of the MFLO, a notice of Talaq must be submitted to the chairman of the respective union council, and a mandatory 90-day reconciliation period is required.
The judge pointed out that the divorce does not become effective unless this period elapses without revocation.
Justice Sheikh remarked that although the petitioner had sent a notice of Talaq to the union council, he had revoked it prior to the conclusion of the required period. Citing Supreme Court rulings, the judge asserted that failing to comply with statutory mandates renders a divorce legally invalid, even if a Talaqnama exists under Islamic law.
The court observed that under Section 7(3) of the MFLO, the parties remain legally married until the reconciliation period has lapsed or the Talaq is retracted.
Justice Sheikh concluded that on October 17, 2024, the marriage had not been dissolved in the eyes of the law. He indicated that while the petitioner’s actions might be considered immoral or inappropriate according to religious or social standards, prosecution under Section 376 could not proceed, as the essential elements of the offence were not established based solely on the FIR.
The court granted the petition and annulled the FIR filed against the petitioner.