Manju Saxena And Another vs State Of U.P. And 3 Others
2023 Latest Caselaw 23764 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:174468
 
Court No. - 50
 

 
Case :- WRIT - C No. - 20874 of 2023
 

 
Petitioner :- Manju Saxena And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Mool Chandra Maurya
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ram Manohar Narayan Mishra,J.

Learned counsel for the petitioners and Sri Ashwani Kumar Tripathi, learned Standing Counsel for the State-respondents.

Learned counsel for the petitioners submitted that petitioners are living in live-in relationship driven by love affairs, free will and choice. They have already attained the age of majority. Date of birth of petitioner no. 1 is mentioned as 1.1.1994 in her Adhar Card and that of petitioner no. 2 is mentioned as 1.1.1996 in his Adhar Card. Petitioner no. 1 was previously married three years before with respondent no. 4 but their relationship got estranged in course of time. Petitioners being consenting adult are having right to choice of their partner. The marital relationship of petitioner no. 1 and respondent no. 4 has not been dissolved as yet by the competent court; the petitioner no. 1 was subjected to matrimonial cruelty, torture and harassment by her husband mainly due to the reason that she did not conceive after marriage; the respondent no. 4 and family members used to demand additional dowry from the petitioner no. 1; the petitioner no. 1 was ultimately turned out from her matrimonial home; she came in contact of petitioner no. 2 and decided to live together as live in relationship; the petitioner no. 1 has not been given divorce from respondent no. 4. The respondent no. 4 in collusion with local police is threatening and harassing the petitioners of dire consequences due to which they are apprehending danger to their life and liberty. They have filed joint affidavit in support of their pleadings.

Per contra, learned Standing Counsel appearing for the State respondents submitted that relationship of petitioners cannot be said as lawful and legal due to fact that marriage of petitioner no. 1 with her previous husband, who is impleaded as private respondent no. 4, has not been dissolved by orders of competent court. Law does not protect live-in relationship of a couple, out of whom, marriage of one of them with his previous spouse is subsisting.

Learned Standing Counsel cited a judgment of Division Bench of this Court in Asha Devi and another Vs. State of U.P. and three others, (2020) Supreme (Alld) 1084, wherein in paragraph nos. 18 and 21 of the judgment, this Court has held as follows:-

" 18. It is settled law that writ of mandamus can be issued if the petitioner has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition. Similar view has also been taken by Hon'ble Supreme Court in Kalyan Singh vs. State of U.P.13. Applying the principles of issuance of writ of mandamus on the facts of the present case, we find that the petitioners have no legal right for protection on the facts of the present case inasmuch as such the protection as being asked, may amount to protection against commission of offence under Section 494/495 I.P.C. It is well settled law that writ of mandamus can not be issued contrary to law or to defeat a statutory provision including penal provision. The petitioners do not have legally protected and judicially enforceable subsisting right to ask for mandamus.

21. The discussion and findings as recorded in foregoing paragraphs are briefly summarized as under:-

(i) A "relationship in the nature of marriage" is akin to a common law marriage. Common law marriages require that although not being formally married :-

(a) The couple must hold themselves out to society as being akin to spouses.

(b) They must be of legal age to marry.

(c) They must be otherwise qualified to enter into a legal marriage, including being unmarried.

(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

(ii) A `relationship in the nature of marriage' under the 2005 Act must also fulfil the above requirements, and in addition the parties must have lived together in a `shared household' as defined in Section 2(s) of the Act. Merely spending weekends together or a one night stand would not make it a `domestic relationship'.

(iii) Following relationship have not being recognised or approved as live-in-relationship or relationship in the nature of marriage. This list is not exhaustive but merely illustrative:-

(a) Concubine can not maintain relationship in the nature of marriage.

(b) Polygamy, that is a relationship or practice of having more than one wife or husband at the same time, or a relationship by way of a bigamous marriage that is marrying someone while already married to another and/or maintaining an adulterous relationship that is having voluntary sexual intercourse between a married person who is not one's husband or wife, cannot be said to be a relationship in the nature of marriage. Polygamy is also a criminal offence under Sections 494 & 495 I.P.C.

(c) Till a decree of divorce is passed the marriage subsist. Any other marriage during the subsistence of the first marriage would constitute an offence under Section 494 I.P.C. read with Section 17 of the Hindu Marriage Act, 1955 and the person, inspite of his conversion to some other religion would be liable to be prosecuted for the offence of bigamy.

(d) If both the persons are otherwise not qualified to enter into a legal marriage including being unmarried.

(iv) Once the petitioner No.1 is a married woman being wife of one Mahesh Chandra, the act of petitioners particularly the petitioner No.2, may constitute an offence under Sections 494/495 I.P.C. Such a relationship does not fall within the phrase "live-in-relationship" or "relationship in the nature of marriage". The writ petition has been filed by the petitioners for protection from interference by others in their living as husband and wife. If the protection as prayed is granted, it may amount to grant protection against commission of offences under Sections 494/495 I.P.C.

(v) It is settled law that writ of mandamus can be issued if the petitioner has a legal right to the performance of a legal duty by the party against whom the mandamus is sought and such right must be subsisting on the date of the petition. Similar view has also been taken by Hon'ble Supreme Court in Kalyan Singh vs. State of U.P. (supra) and in Director of Settlement A.P. (supra). Applying the principles of issuance of writ of mandamus on the facts of the present case, we find that the petitioners have no legal right for protection on the facts of the present case inasmuch as such the protection as being asked, may amount to protection against commission of offence under Section 494/495 I.P.C. It is well settled law that writ of mandamus can not be issued contrary to law or to defeat a statutory provision including penal provision. The petitioners do not have legally protected and judicially enforceable subsisting right to ask for mandamus."

In view of above pronouncement of Division Bench of this Court on 1.12.2020, this Court finds that matrimonial alliance of petitioner no. 1 with her previous husband i.e. respondent no. 4, is still subsisting in the eye of law in spite of the fact that they have parted their ways and living separately.

In the light of aforesaid judicial authorities and the facts and circumstances of this case, this Court is not inclined to exercise its discretion jurisdiction under Article 226 of the Constitution of India, and consequently writ petition fails and is hereby dismissed.

Order Date :- 29.8.2023

Dhirendra/