Allahabad High Court
Bhagwati Pathwar And Another vs State Of Up And 3 Others on 14 March, 2024
Author: Renu Agarwal
Bench: Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on : 06.03.2024 Delivered on: 14.03.2024 Neutral Citation No. - 2024:AHC:45648 Court No. - 81 Case :- WRIT - C No. - 7230 of 2024 Petitioner :- Bhagwati Pathwar And Another Respondent :- State Of Up And 3 Others Counsel for Petitioner :- Deena Nath,Deepak Kumar,Raj Rao Counsel for Respondent :- C.S.C. Hon'ble Mrs. Renu Agarwal,J.
1. Heard learned counsel for the petitioners as well as Mr. Ashwani Kumar, learned Additional Chief Standing Counsel assisted by Mr. Yogesh Kumar, learned Standing Counsel for the State and perused the record.
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 commanding/directing the respondent Nos. 2 and 3 to secure the security of life and property of the petitioners from the respondent No.4.
3. It is submitted by the learned counsel for the petitioners that both the petitioners are major and are of marriageable age. It is further submitted that petitioner No.1 is daughter of respondent No.4 and she belong to Hindu community. The date of birth of petitioner No. 1 is 12.12.1991 and the date of birth of petitioner no. 2 is 16.11.1987 and he belongs to muslim community, in support thereof the petitioners have brought on record their High School marksheet-cum-Certificates respectively which are annexed as Annexure Nos. 1 and 2 to the affidavit filed in support of the writ petition respectively. It is further submitted that both the petitioners are living in live-in-relationship since about six-seven months both the petitioners intend to marry each other after lawful conversion of their religion, however, presently they are living in live-in-relationship as the right is guaranteed under Article 21 of the Constitution of India and there is no need of conversion of religion in live-in-relationship. It is contended that father and family members of the first petitioner are not happy with the relationship of the petitioners. The petitioners have apprehension of honour killing from the family member of petitioner No.1. Petitioner No.1 has also moved an application dated 26.02.2024 to the Commissioner of Police Station, District-Jhansi seeking their protection but to no avail. Copy of the application dated 26.02.2024 is annexed as Annexure No. 3 to the petition. It is further contended that till date, no F.I.R. has been lodged relating to their live-in-relationship and both the petitioners are living together happily.
4. Learned counsel for the petitioners, in support of his contentions relied upon the case of Razia and Anr. in Writ-C No. 27338 of 2023, wherein, it has been observed that a boy or girl, who have attained majority, is free to marry or live with a person of his/her choice and no one including his/her parents or anyone on their behalf can interfere in their right to freedom of choosing a partner which emanates from Right to life and Personal Liberty guaranteed under Articles 19 and 21 of the Constitution of India.The petitioners are now forced to run from one place to another in order to save their life and themselves. Petitioners also made several oral and written complaints before the police officials but till date no action has been taken by them, hence, it is prayed that live-in-relationship be protected till they marry with each other after lawful conversion of their religion. It is lastly contended that parents of petitioner No.1 are unhappy with the relationship of the petitioners and has approached the Police, who are constantly harassing the petitioners and disturbing their peaceful life, hence, it is prayed that live-in-relationship be protected till they marry with each other after lawful conversion of their religion.
5. Learned Additional Chief Standing Counsel appearing on behalf of the State submitted that petitioners have not applied for conversion of their religion under Section 8 and 9 of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021, so far neither the current marital status of petitioners is disclosed anywhere in the petition, hence the live-in-relationship of the petitioners cannot be protected and opposed the prayer made by learned counsel for the petitioners.
6. In view of the order proposed to be passed, there is no need to issue notice to private respondent. With the consent of learned counsel appearing for the parties, this writ petition is being disposed of finally at this stage in terms of the Rules of the Court.
7. I have heard the rival submissions advanced on behalf of the parties and perused the entire materials brought on record.
8. Perusal of the record reveals that date of birth of petitioner No.1 12.12.1991 as per her High School mark-sheet and date of birth of petitioner No.2 as per his High School mark-sheet is 16.11.1987 and both the petitioners are major and of marriageable age. It is also clear that none of the petitioners have applied for conversion as per the mandate provided under Section 8 and 9 of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021.
9. Reliance has been placed on the judgment passed by Co-ordinate Bench of this Court in case of Razia (supra), in which Co-ordinate Bench of this Court relying upon various judgment granted protection to the couple living in live-in-relationship. Learned counsel for the petitioners submitted that in this case also one of the party is muslim by faith and in the identical situation, the court has granted protection. Opposing the arguments advanced by learned counsel for the petitioners, learned Chief Standing Counsel appearing on behalf of the State relied upon the case law passed by Division Bench in case of Kiran Rawat and Anr. Vs. State of U.P. passed in Criminal Misc. Writ Petition No. 3310 of 2023. From the perusal of both the cases, it is apparent that the judgment of Kiran Rawat (supra) is mentioned by the Single Bench decision of this Court in case of Razia (supra) but the ruling is not discussed on merits in that case nor the ruling is distinguished on facts, hence, the ruling has no application on the present case.
10. In Shafin Jahan Vs. Asokan K.M. and Ors. reported in (2018) 16 SCC 368, the Apex Court emphasized due importance to the right of choice of an adult person, which the Constitution accords to an adult person. Hon'ble the Apex Court held as under :-
"52. It is obligatory to state here that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteed freedom. The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible. Faith of a person in intrinsic to his/he meaningful existence. To have the freedom of faith is essential to his/her autonomy; and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow. It has to be remembered that the realisation of a right is more important than the conferment of the right. Such actualisation indeed ostracises any kind of societal notoriety and keeps at bay the patriarchal supremacy. It is so because the individualistic faith and expression of choice are fundamental for the fructification of the right. Thus, we would like to call it indispensable preliminary condition"
11. In the case of D.Velusamy Vs. D. Patchajammal reported in (2010) 10 SCC 469, Hon'ble Apex Court while considering the definitions given under Section 2 of the Domestic Violence Act dealt with the definition of "domestic relationship", as a relationship in the nature of marriage. It laid down the following requisite criteria in the relationship in the nature of marriage:-
"(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."
12. In the case of Asha Devi and Another vs. State of U.P. and Others passed in Writ (C) No.18743 of 2020, 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. ?"
13. 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)
14. 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 others (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)."
15. 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. .................."
16. In the relationship of marriage or in the nature of live-in-relationship there must be two consenting adults human beings. The concept of Gotra, Caste and Religion is left a way back. No one has right to interfere in the personal liberty of two adults, not even the parents to two adults can interfere in their relationship, but, the Right to Freedom or Right to Personal Liberty is not an absolute or unfettered right, it is qualified by some restrictions also. The freedom of one person extincts where the statutory right of another person starts. Spouse have statutory right to enjoy the company of his or her counterpart and he/she cannot be deprived of that right for the sake of personal liberty and no such protection can be granted to infringe statutory right of another spouse, hence, the freedom of one person cannot encroach or overweigh the legal right of another person. If the petitioners are already married and had their spouse alive, he/she cannot be permitted to enter into live-in-relationship with third person without seeking divorce from the earlier spouse. He/she first has to obtain the decree of divorce from the court of competent jurisdiction before solemnizing marriage of entering into live-in-relationship out of their legal marriage.
17. It is pertinent to mention here that The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021 (in brevity "the Act") has come into force on 05.03.2021, thereafter it is made mandatory for interfaith couples to seek conversion according to the provisions of the Act. In the case at hand, admittedly, none of the petitioners has moved application for conversion of religion in accordance with Section 8 and 9 of the Act. Explanation to Section 3(1) of the Act reads as follows:-
"3(1) No person shall convert or attempt to convert, either directly or otherwise, any other person from one religion to another by use or practice of misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means. No person shall abet, convince or conspire such conversion.
Explanation:- For the purposes of this sub-section conversion by solemnization of marriage or relationship in the nature of marriage on account of factors enumerated in this sub-section shall be deemed included."
Explanation goes to show that conversion is not only required for the purpose of marriage, but it is also required in all relationship in the nature of marriage, therefore, Conversion Act applies to relationship in the nature of marriage or live-in-relationship. Petitioners have not yet applied for conversion as per provisions of Section 8 and 9 of the Act, hence, the relationship of petitioners cannot be protected in contraventions of the provisions of law.
18. Certainly, the Courts have power to interpret the provisions of law if there is ambiguity in the provisions of law, but, the above mentioned law is explicit which mandates that conversion is required not only in cases of inter-faith marriages but relationship in the nature of marriage, hence, Courts should refrain from embarking upon the interpretation of law in any sense when the law is very explicit.
19. While applying the principles laid down in various pronouncements by Hon'ble the Apex Court, it gives guidelines to the fact that couple must be of legal age to marry and qualified to enter into legal marriage including being unmarried and they must be akin to spouse for significant period of time. There is nothing on record primarily to show that they are living as husband and wife except their affidavit. No proof of joint account, financial security, joint property or joint expenditure is produced before this Court neither any document is produced before this Court to substantiate that the petitioners are akin to spouse nor the current marital status of the petitioners is disclosed anywherein in the petition.
20. In view of the discussions as above, it is not considered desirable that live-in-relationship of the petitioners be protected in contravention of the statutory provisions of law passed by legislature, hence, petition has no force and is liable to be dismissed and is dismissed accordingly.
(Renu Agarwal,J.) Order Date :- 14.3.2024 Karan