When a marriage breaks down, the dispute rarely stays in the Family Court. Very often one spouse goes to the police station, or to the Justice of Peace under sections 22-A and 22-B Cr.P.C., and says: “She took my cheque book, cash and gold when she left,” or “He kept my jewellery and documents.” The question then is whether taking property from the matrimonial home is theft at all.
Two ideas are usually argued in defence: that husband and wife have a “union of interest”, and that property in the matrimonial home is in their “joint possession”. One of these ideas is much weaker in Pakistan than people think. The other is a real defence. This article explains the difference.
1. “Union of interest”: an English doctrine that is not part of our Penal Code
At English common law, husband and wife were treated as one person, so a wife living with her husband could not be convicted of stealing his goods. That rule is where the phrase “union of interest” comes from. England itself has abandoned it: under section 30 of the Theft Act 1968, spouses can be prosecuted for stealing from each other.
The rule was never adopted in the Penal Code of 1860. Section 378 PPC contains no exception for spouses. On the contrary:
- Section 27 PPC says that property in the possession of a person’s wife, clerk or servant on account of that person is in that person’s possession. The Code therefore treats a husband’s property as his, even when his wife is holding it.
- The illustrations to section 378 speak of property which belongs to the husband and which the wife has no authority to give away.
- As early as Queen-Empress v. Butchi, (1893) ILR 17 Mad 401, it was held that under the Penal Code there is no presumption that husband and wife are one person; if a wife removes her husband’s property with dishonest intention, the offence can be made out.
Muslim personal law points the same way. As the Islamabad High Court recently noted in Mst. Amara Waqas v. Muhammad Waqas Rasheed (W.P. No. 365 of 2023, decided in 2026), in Islamic jurisprudence husband and wife remain distinct legal persons with separate property; the wife keeps full control of her own property, and does not become owner of her husband’s property merely by marriage.
So the honest answer is this: there is no rule in Pakistan that “no offence of theft can be made out between spouses during the marriage.” A defence that rests only on union of interest stands on weak ground.
2. The real defence: the ingredients of theft are usually missing
The protection for a spouse does not come from the marriage as such. It comes from the definition of theft. Under section 378 PPC the prosecution must show (1) an intention to take movable property, (2) that the taking was dishonest, (3) that the property was taken out of the possession of another person without consent, and (4) a moving of the property. In a matrimonial home, the second and third ingredients are often absent.
(a) Possession: property lying in the home of the accused spouse
In Muhammad Tanveer Ahmad v. Ex-Officio Justice of Peace/Additional Sessions Judge-III, Islamabad-East (W.P. No. 440 of 2022, Islamabad High Court, decided 07.04.2022, approved for reporting), a husband sought registration of an FIR against his wife for stealing household articles, a car, cash, gold ornaments and a pistol. The Justice of Peace refused, observing that the proposed accused was his wife, a maintenance case was pending in the Family Court, and no cognizable offence was made out.
The High Court upheld the refusal. The flat stood in the wife’s name and both spouses lived there; the articles were therefore in her possession and could not be said to have been taken out of the husband’s possession. The Court posed the question in plain terms: can a person commit theft in her own home?
(b) Dishonest intention: the bona fide claim of right
In the same judgment the Court relied on Abdul Aziz Sattar v. Khaja M. Ashraf, PLD 1965 Dacca 315, for the rule that removal of property under a bona fide claim of right is not theft. The husband had himself bought the household items and the car for his wife; she therefore had a genuine claim to them, and taking them did not amount to a cognizable offence.
This is the strongest point available to a spouse. Where the article is dowry, a bridal gift, a gift made during the marriage, or something bought from joint funds, the person who takes it believes, with reason, that it is hers. Section 5 of the Dowry and Bridal Gifts (Restriction) Act, 1976 makes dowry and bridal gifts the absolute property of the bride. Nobody steals her own property.
(c) Joint possession and implied consent
Household goods in a shared home are used and controlled by both spouses. Explanation 5 to section 378 recognises that consent may be implied. A wife who handles money, cheque books and valuables with her husband’s knowledge during cohabitation is not, without more, “taking without consent”. Whether consent can be implied is a question of fact in each case.
3. The Justice of Peace is not a post office
The police must register an FIR where the information discloses a cognizable offence (Muhammad Bashir v. Station House Officer, Okara Cantt., PLD 2007 SC 539). But the Justice of Peace is not bound to direct registration in every case; he must apply his mind (Younas Abbas v. Additional Sessions Judge, Chakwal, PLD 2016 SC 581).
In Mst. Ayesha Zafar v. S.H.O. P.S. Margalla (W.P. No. 4677 of 2025, Islamabad High Court, decided 03.12.2025), the Court held that sections 22-A and 22-B cannot be used mechanically “to convert civil or matrimonial disputes into criminal proceedings where no clear cognizable offence is disclosed,” and gave weight to the pending family suits between the parties. In that case it was the wife who wanted the FIR against her husband. The principle applies to both sides.
4. When the defence will not work
A spouse should not assume immunity. The defence is weak where:
- the property is clearly the other spouse’s own (business cash, a personal cheque book, documents of his or her separate property) and was kept under that spouse’s own lock and control;
- it was removed secretly and then used in a way that cannot be explained by any claim of right, for example a cheque that is filled in and encashed without authority, which may also attract the forgery and cheating provisions;
- the taking happened after the parties had separated or after divorce, when there is no shared home and no implied consent.
The date of the alleged taking, where the article was kept, who paid for it, and how long the complainant stayed silent are therefore the facts that decide these cases.
5. The proper forum
Disputes over dowry articles and the personal property and belongings of a wife belong before the Family Court under the Family Courts Act, 1964. A spouse who claims the return of his or her own separate property has a civil remedy. Criminal law is for dishonesty, not for settling accounts after a marriage ends.
Key points
- “Union of interest” is an old English doctrine. It is not a defence under the Pakistan Penal Code.
- Spouses own property separately, and the Penal Code has no exception for them.
- The real defences are (i) the property was in the accused’s own or joint possession, (ii) a bona fide claim of right, and (iii) implied consent during cohabitation.
- An application under section 22-A/22-B arising out of a matrimonial dispute should be examined closely, and can be refused where no clear cognizable offence appears.
- Every case depends on its facts: whose property, where it was kept, when it was taken, and why the complaint came when it did.
Need a lawyer for this? See our service pages: Family Lawyer in Lahore and Bail & Criminal Lawyer in Lahore.
Muhammad Shafique Baloch, Advocate High Court
Office No. 3, Basement, Miccop Centre, 1 Mozang Road, near AG Office Chowk / Lahore High Court, Lahore
WhatsApp / Phone: 0321-4960782
This article provides general legal information as of October 2026 and is not legal advice for any particular case. Every case turns on its own facts; consult an advocate before taking any step.
