Allahabad High Court
Sona Devi And Another vs State Of U.P. And 3 Others on 20 March, 2024
Author: Renu Agarwal
Bench: Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ? Neutral Citation No. - 2024:AHC:50048 Court No. - 81 Case :- WRIT - C No. - 40847 of 2023 Petitioner :- Sona Devi And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Shaheen Bano,Shahnawaz Khan,Vinay Kumar Counsel for Respondent :- C.S.C. Hon'ble Mrs. Renu Agarwal,J.
1. Matter is taken up. None appeared for the petitioners to press this writ petition. Shri Ashwani Kumar Tripathi, learned Additional Chief Standing Counsel for the State is present.
2. Instant writ petition under Article 226 of the Constitution has been filed by the petitioners with prayer for issuing writ, order or direction in the nature of mandamus directing the respondents not to interfere in the peaceful married life of the petitioners as husband and wife and for direction to the authorities to provide protection to the petitioners.
3. It is averred in the writ petition that both the petitioners have solemnized their marriage out of their free will and choice as well as driven by love affairs on 17.08.2023 after attaining the age of majority and consent for marriage. It is also submitted that both the petitioners are profess same religion and this is their first marriage. The date of birth of petitioner No. 1 as recorded in her online high school marks-sheet is 20.03.1991 and that of petitioner No. 2 as recorded in his Aadhar Card is 01.05.1998. Certificate of registration of marriage is also on record along with supplementary affidavit.
4. Learned counsel for the petitioners has averred in the writ petition that they are living as wife and husband and their relationship is not relished and agreed by private respondent and he has been interfering in their marital life. The petitioners apprehend danger to the life and liberty from respondent No. 4, therefore, the indulgence of this Court is sought. Petitioner No. 1 has also moved an application before the Superintendent of Police, Shahjahanpur seeking protection for herself and petitioner No.2 from respondent No. 4, but no action has been taken by police authorities in the matter.
5. Learned Standing Counsel opposed the writ petition and submitted that as per the instructions received from the authorities concerned, the petitioner No. 1 was already married to one Rahul s/o Ramniwas R/o Sadhbhawna Colony, Police Station Cantt District Bareilly. It is also submitted that the petitioners have come to this Court by concealing the material fact and also by filing false affidavit as this is their first marriage. It is also submitted by learned Standing Counsel that the writ petition is not maintainable in view of judgment of a Division Bench of this Court passed in the case of Asha Devi and another Vs. State of U.P. and others Writ C No. of 2020, hence the writ petition is opposed.
6. In the case of Asha Devi(Supra), the Hon'ble Division Bench of this Court formulated two questions as under:-
"(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. ?"
7 In the judgment of Asha Devi (Supra), Hon'ble Division Bench of this Court has discussed the judgment of Hon'ble Apex Court in the case of "D. Velusamy Vs. D. Patchaiammal", in which the Hon'ble Apex court held that:-
"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'."
(Emphasis supplied)
8. In the judgment of Asha Devi (Supra), the Division Bench of this Court on the basis of various judgments of High Court held that following relationship are not recognized or approved as live-in-relationship:-
"(a) Concubine can not maintain relationship in the nature of marriage vide paras 57 & 59 of the judgment of Hon'ble Supreme Court in Indra Sarma Vs. V. K. V. Sarma.
(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 vide para 58 of judgment in Indra Sarma's Case (supra) & A Subhash Babu Vs. state of A.P.4 (paras 17 to 21, 27, 28 & 29). Polygamy is also a criminal offence under Section 494 & 495 I.P.C., vide Shayara Bano Vs. Union of India 5 (paras 299.3).
(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, vide Lily Thomas and another Vs. Union of India and others6 (Para 35). In para 38 of the aforesaid judgment, Hon'ble Supreme Court observed as under:-
"38. Religion is a matter of faith stemming from the depth of the heart and mind. Religion is a belief which binds the spiritual nature of man to a super-natural being; it is an object of conscientious devotion, faith and pietism. Devotion in its fullest sense is a consecration and denotes an act of worship. Faith in the strict sense constitutes firm reliance on the truth of religious doctrines in every system of religion. Religion, faith or devotion are not easily interchangeable. If the person feigns to have adopted another religion just for some worldly gain or benefit, it would be religious bigotry. Looked at from this angle, a person who mockingly adopts another religion where plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted to take advantage of his exploitation as religion is not a commodity to be exploited. The institution of marriage under every personal law is a sacred institution. Under Hindu Law, Marriage is a sacrament. Both have to be preserved."
(Emphasis supplied)
(d) If both the persons are otherwise not qualified to enter into a legal marriage including being unmarried, vide D Velusamy Vs. D Patchaiammal (supra) (para 31)."
9. In the judgment of Asha Devi (Supra), Hon'ble Division Bench of this Court has also discussed the judgment of Hon'ble Apex Court in the case of "Director of Settlement, A.P. Vs. M.R. Apparao, in which the Hon'ble Apex court has considered the High Court's power for issuance of mandamus and held as under:-
"17. ................. One of the conditions for exercising power under Article 226 for issuance of a mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any of the rights and that such right has been infringed. In other words, existence of a legal right of a citizen and performance of any corresponding legal duty by the State or any public authority, could be enforced by issuance of a writ of mandamus. "Mandamus" means a command. It differs from the writs of prohibition or certiorari in its demand for some activity on the part of the body or person to whom it is addressed. Mandamus is a command issued to direct any person, corporation, inferior Courts or Government, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. A mandamus is available against any public authority including administrative and local bodies, and it would lie to any person who is under a duty imposed by statute or by the common law to do a particular act. In order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he 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. .................."
10. From the factual matrix of the case it is apparent that petitioner no.1 is legally wedded wife of Rahul. She has not obtained any decree of divorce from the competent authority. She is living with petitioner no.2 in contravention of the provisions of Hindu Marriage Act wherein legally wedded wife can not go outside marriage. If we go to the criminality of the act of petitioner no.1 she may be prosecuted for the offence under section 494 and 495 IPC.
11 Present writ petition has been filed by the petitioners for protection from interference by respondent no.4 and others in their peaceful living as husband and wife. If such a protection is granted, it may amount to grant the protection against the commission of offence under section 494 and 495 IPC.
12 It is settled law that writ of mandamus can be issued only if the petitioners has legal right to the performance of legal duty by the party against whom the mandamus is sought. The Hon'ble Apex Court in the case of "Kalyan Singh Vs. State of U.P., AIR 1962 SC 1183 held as under:-
"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."
13. The writ petition has been filed along with an affidavit duly sworn wherein it has been stated in paragraph 17 thus:
"17. That the petitioners are followers of same religion i.e. Hindu religion and it is their first marriage."
14. The aforementioned averment clearly contradicts the instructions obtained by the learned Standing Counsel.
15. Thus in view of the above submissions it is clear that right to freedom or right to personal liberty is not as absolute or unfettered right, it is qualified by some restrictions also. Petitioners cannot be provided protection of law in contravention of law of land.
16. In view of the above discussions the writ petition lacks merits and is accordingly dismissed.
(Renu Agarwal,J.) Order Date :- 20.3.2024/Nadeem