Smt. Shabanam Khatoon And Another vs State Of U.P. And 3 Others
2023 Latest Caselaw 27379 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:193124
 
Court No. - 50
 

 
Case :- WRIT - C No. - 20791 of 2023
 

 
Petitioner :- Smt. Shabanam Khatoon And Another
 
Respondent :- State Of U.P. And 3 Others
 
Counsel for Petitioner :- Virendra Singh Tomar,Rajiv Sisodia
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Ram Manohar Narayan Mishra,J.

1. Instant writ petition under Article 226 of the Constitution has been filed by the petitioners with the following prayer:-

i) issue a writ order or direction in the nature of mandamus directing the respondent nos. 2 and 3 to protect the petitioners from the hands of the respondent No.4.

2. Heard learned counsel for the petitioners, learned Standing Counsel for State-respondents and perused the record.

3. Learned counsel for the petitioners submitted that the petitioners are inter-faith couple. Petitioner No.1 belongs to Muslim community and petitioner No.2 belongs to Hindu community. They are presently living in live-in relationship out of free will and choice after attaining the age of majority. Their live-in relationship is strongly opposed by respondent No.4, who is father of the petitioner No.1. The local police constantly interfering and visiting on their abode at the behest of respondent no.4. The petitioners are apprehending danger to their life and liberty from respondent No.4. Marriage of petitioner No.1 was solemnized with one Faiyaz, son of Arif, resident of Village Badhapur, District Bijnor on 4.1.2023 against the wishes of petitioner No.1 and even after the marriage, she did not joint the company of Faiyaz. They have filed a joint affidavit in support of their pleadings. No first information report has been lodged at the instance of respondent No.4 or any other persons. The petitioners are consenting adults and have right to live and cohabit together. He further submitted that the date of birth of petitioner No. 1 is mentioned as 20.1.2000, as per her Adhar Card and the date of birth of petitioner No. 2 is mentioned as 19.3.1999 in his High School Marks-sheet. The petitioner No.1 was forced to live with her husband Faiyaz by her family members and even she was assaulted by her father for that purpose. Petitioners had moved an application through registered post before respondent No. 2- S.P., Bijnor on 17.6.2023, seeking protection but no action has been taken.

4. Per contra, learned Standing counsel submitted that as no divorce or talaq has been effected according to personal law by petitioner No.1, the petitioners cannot be provided protection in exercise of extraordinary powers under Article 226 of Constitution of India.

5. Learned standing counsel also placed reliance on judgment of Division Bench of this Court in Asha Devi Vs. State of U.P. in Writ C. No. 18743 of 2020 decided on 01.12.2020. Paragraphs Nos. 11, 17, 18 and 21 of same is reproduced below:

11. Live-in-relationship is a relationship which has not been socially accepted in India, unlike many other countries. In Lata Singh v. State of U.P. and in Indra Sarma Vs. V. K.V. Sarma (paras 40, 42, 43 & 53) Hon'ble Supreme Court observed that live-in relationship between two consenting adults of heterosexual sex does not amount to any offence even though it may be perceived as immoral. In D. Velusamy Vs. D Patchaiammal (paras 31 & 32) Hon'ble Supreme Court explained the phrase "relationship in the nature of marriage" as under :-

"31. In our opinion 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.

(see `Common Law Marriage' in Wikipedia on Google) In our opinion a `relationship in the nature of marriage' under the 2005 Act must also fulfill 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'.

32. In our opinion not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence. If a man has a `keep' whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage'."

17. Article 226 of the Constitution of India empowers High Court to issue directions, orders or writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them. Such directions, orders or writs may be issued for the enforcement of fundamental rights or for any other purpose. The jurisdiction under Article 226 is equitable and discretionary.

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 fulfill 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 recognized 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.

6. In the light of facts and situation of present case, although the petitioners are stated to have been living in live-in relationship being consenting adults, admittedly the marriage of petitioner No. 1 with her previous husband has not been dissolved by orders of any competent court and no sanctity can be attached to dissolution of marriage of petitioner No. 1 and her husband by way pronoucement of triple talaq. The writ of mandamus as stated above, 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. We find that petitioners have no legal right for protection in the facts of the present case as marriage of petitioner No. 1 with her previous husband is deemed to be subsisting under eye of law.

7. For all the aforestated reasons, this Court is not inclined to exercise its discretionary jurisdiction, consequently, the writ petition fails and is hereby dismissed.

8. However, the petitioners will be at liberty to take recourse of concerned police officials and competent court in case, they apprehend any danger from respondent No. 4 or any other person on account of their relationship; as under law.

Order Date :- 6.10.2023

Kamarjahan