The Lahore High Court has ruled that marital relations remain legally permissible until a divorce becomes effective under the law, dismissing a rape case filed against a husband over relations three days after divorce.
The Lahore High Court’s Bahawalpur Bench has declared that marital relations are lawful until a divorce becomes legally effective. Justice Tariq Saleem Sheikh issued the detailed written verdict while deciding a petition filed by citizen Jamil Ahmed, seeking dismissal of a rape case registered against him.
According to the court record, the parties were married on April 22, 2024. After the marriage, it emerged that the husband was already married, leading to disputes between the couple. Following a quarrel, the petitioner divorced his wife on October 14, 2024.
Allegation of rape after divorce
The woman alleged that on October 17, three days after the divorce, her former husband forcibly raped her at gunpoint. She maintained that after the divorce, the husband had no conjugal rights over her and subsequently registered a rape case against him in Rahim Yar Khan.
The petitioner approached the Lahore High Court, arguing that the rape case was based on a false and fabricated story. He maintained that the woman was still legally his wife, as the divorce had not yet become effective under the law.
Legal status of divorce
The central question before the court was whether the divorce pronounced on October 14 was legally effective. The court also examined whether, if the marital relationship was still valid, the husband could be charged under the provisions of rape.
The verdict noted that under Islamic law, marriage can end in several ways: through the death of a spouse, the will of the husband, mutual consent of both parties, or by a court order.
The court observed that a woman cannot divorce herself without the consent of her husband.
Muslim Family Law Ordinance
Justice Tariq Saleem Sheikh emphasized that under the Muslim Family Law Ordinance, a divorce does not become legally effective immediately. The law provides a 90-day period during which annulment of the divorce can be sought before the chairman of the Union Council.
The court ruled that within this 90-day period, the husband has the right to apply for annulment of the divorce. If the divorce is annulled within the prescribed time, the marriage continues to exist in the eyes of the law.
Mutual consent divorce treated differently
The verdict clarified that if a divorce occurs through mutual consent, it becomes non-annullable. In such cases, the husband has no right to revoke or appeal the divorce.
In the present case, the petitioner had filed an appeal for annulment before the chairman of the Union Council within the 90-day period.
The woman did not dispute these facts, the court noted.
Marriage deemed legally intact
Given these circumstances, the court held that legally, the marriage between the parties was still continuing and no effective divorce had taken place. As a result, the marital relationship remained valid at the time of the alleged incident.
The court drew a clear distinction between sin and crime, observing that while the petitioner’s conduct might be considered immoral, it did not amount to a criminal offence under rape laws.
Justice Tariq Saleem Sheikh ruled that proceedings under the provisions of rape could not be initiated against the petitioner. Consequently, the Lahore High Court dismissed the rape case registered against him.
