Allahabad High Court
Devaki And Another vs State Of U.P. Through Principal ... on 14 May, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:86547
Court No. - 84
Case :- WRIT - C No. - 16021 of 2024
Petitioner :- Devaki And Another
Respondent :- State Of U.P. Through Principal Secretary, Home Affairs And 3 Others
Counsel for Petitioner :- Satya Narayan Yadav
Counsel for Respondent :- C.S.C.
Hon'ble Mrs. Jyotsna Sharma,J.
1. Heard Ms. Shabana Azmi, learned Advocate holding brief for Sri Satya Narayan Yadav, learned counsel for the petitioners and Sri A.K. Tripathi, learned Addl. Chief Standing Counsel for the State.
2. This petition has been filed by petitioners with the submissions that they are living in a live-in-relationship and that respondent no. 4 has been giving death threat to them, therefore, they should be granted protection from unnecessary harassment in the hands of respondent no. 4. Admittedly petitioner no. 2 is married to respondent no. 4 and that they have not obtained divorce as yet.
3. Learned standing counsel places reliance upon a division Bench judgment of this Court in the case of Asha Devi and another vs. State of U.P. and three others (Writ C No.18743 of 2020) decided on 01.12.2020.
4. The Division Bench framed questions as below:-
"(i) Whether the petitioners, who claim themselves to be living together as husband and wife; can be granted protection when the petitioner No.1 is legally wedded wife of someone else and has not taken divorce sofar ?
(ii) Whether protection to petitioners as husband and wife or as live-in-relationship can be granted in exercise of powers conferred under Article 226 of the Constitution of India, when their living together may constitute offences under Sections 494/495 I.P.C."
5. Para 21 of the aforesaid judgment passed in Asha Devi (supra) reads as under:-
"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."
6. In view of the admitted fact that petitioner no. 2 is husband of respondent no. 4 and that no divorce has been obtained, therefore, protection cannot be granted by this Court in exercise of power under Section 226 of the Constitution of India.
7. This writ petition is dismissed as having no force.
Order Date :- 14.5.2024
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