LHC dismisses woman's plea for action against former husband under rape law

The Lahore High Court’s Bahawalpur Bench on Saturday dismissed a rape case registered against a man who allegedly established marital relations with his ex-wife three days after pronouncing divorce. The court ruled that under the law the marriage was still subsisting at the relevant time.

Justice Tariq Saleem Sheikh issued a detailed 12-page written judgement on the petition, in which the court examined whether the divorce pronounced on October 14, 2024, had become legally effective. The decision noted that under the Muslim Family Laws Ordinance, a divorce does not attain legal finality before the expiry of 90 days, during which a reconciliation or annulment process may take place.

According to the judgement, the parties were married on April 22, 2024. After the marriage, it emerged that the husband was already married, which led to disputes between the couple. Following a quarrel, the husband pronounced divorce on October 14, 2024. The woman later alleged that the husband forcibly raped her on October 17 and subsequently registered a case against him under the provisions of rape. The petitioner, however, maintained that the allegations were false and fabricated.

The court framed the central question as whether the divorce pronounced on October 14 was legally effective at the time of the alleged incident. Justice Tariq Saleem Sheikh observed that Islamic law recognizes several modes of dissolution of marriage, including by the will of the husband, mutual consent of the parties, or a court decree. The judgement further clarified that a woman cannot divorce herself without the consent of her husband.

Referring to the Muslim Family Laws Ordinance, the court held that a divorce does not take legal effect before the lapse of 90 days, during which the husband has the right to seek annulment. If annulment is sought within the stipulated period, the marriage continues under the law. The judgement noted that in cases of separation by mutual consent, the divorce is non-annullable, and no such right of annulment exists. In the present case, the petitioner had filed an appeal before the Chairman Union Council within the 90-day period, and the woman did not dispute these facts.

In light of these circumstances, the court ruled that, in the eyes of the law, the marriage between the parties was still continuing and no valid divorce had taken place at the time of the alleged incident. The judgement emphasized that the law clearly distinguishes between sin and crime, observing that while the petitioner’s conduct could be considered immoral, it did not constitute a criminal offence under the law.

Relying on Supreme Court precedents, the court concluded that action under the provisions of rape could not be sustained against the petitioner. Consequently, the Lahore High Court dismissed the rape case registered against the husband.