Allahabad High Court
Faujiya Bano vs State Of Up Others on 12 March, 2024
Author: Renu Agarwal
Bench: Renu Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD ? A.F.R. Neutral Citation No. - 2024:AHC:44412 Court No. - 81 Case :- WRIT - C No. - 1969 of 2024 Petitioner :- Faujiya Bano Respondent :- State Of Up Others Counsel for Petitioner :- Dharmendra Kumar Counsel for Respondent :- C.S.C. Hon'ble Mrs. Renu Agarwal,J.
1. 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.
2. Heard learned counsel for the petitioners, Mr. Ashwani Kumar Tripathi, learned Additional Chief Standing Counsel for State respondents and perused the record.
3. It is submitted by the learned counsel for the petitioners that both the petitioners are major and are of marriageable age and profess the same religion. It is further submitted that petitioner No.1 is legally wedded wife of respondent No.4 and she belong to Muslim community. The date of birth of petitioner No. 1 is 01.02.1997 and the date of birth of petitioner no. 2 is 01.01.1995, in support thereof the petitioner No.1 has brought on record copy Birth Certificate and petitioner No.2 has brought on record copy of Adhar Card respectively which are annexed as Annexure No. 2 to the affidavit filed in support of the writ petition. It is submitted that petitioner No. 1 solemnized marriage with respondent No.4 according to Muslim Rites and Rituals. Thereafter, one daughter and one son was born out of wedlock of petitioner No.1 and 4. It is further submitted that respondent No.4 started illegal demand of money which was not fulfilled by parents of petitioner No.1, thereafter, in April 2019, respondent No. 4 gave Triple Talaq to petitioner No.1 and ousted the petitioner No.1 from his house. After four years of the Khula Talaq to the petitioner No.1, she solemnized her marriage with petitioner No.2 according to Muslim Rites and Rituals. It is contended that after solemnization of their marriage, petitioners applied for registration of their marriage before the Marriage Registration Officer, under the provision of the Marriage Registration Rules, 2017 and their marriage was registered on 10.011.2023 and copy of the marriage registration certificate is annexed as Annexure No.3 to the petition. It is further contended that after solemnization of the marriage of the petitioners, respondent No.4 started threatening and interfering in the matrimonial life of petitioner No.1. Being aggrieved with the alleged threatening, petitioner No. 1 moved an application through registered post to the Inspector Incharge of Police Station-Ghoorpur, District-Prayagraj, however, no protection was provided to the petitioners, hence, it is prayed to issue an order or direction in the nature of mandamus directing respondents not to interfere in the peaceful marriage life of the petitioners and to secure the personal life and liberty of the petitioners from respondent No. 4. and his associates.
4. Learned Additional Chief Standing Counsel appearing on behalf of the State submitted that petitioner No.1 has not obtained decree of divorce from her previous husband and NCR No. 123/2023 under Section 498, 504 I.P.C., police station-Ghoorpur, Prayagraj has also been lodged by respondent No.4 against petitioner No.2 which is still pending, hence, protection cannot be granted to the petitioner and opposed the prayer of the petitioners.
5. 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.
6. I have heard the rival submissions advanced on behalf of the parties and perused the entire materials brought on record.
7. Perusal of the record reveals that date of birth of petitioner No.1 is 01.02.1997 as per her Birth Certificate, and date of birth of petitioner No.2 as per his Adhar Card is 01.01.1995 and both the petitioners are major. Petitioners have solemnized their marriage on 12.10.2023 according to Muslim Rites and Rituals and their marriage has been registered by the marriage registration office concerned, however, no decree of divorce of petitioner No.1 and respondent No.4 is brought on record, apparently, petitioner No.1 solemnized marriage with petitioner No.2 without obtaining any decree of divorce from the concerned Court.
8. 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."
9. 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. ?"
10. 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)
10. 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...........
(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)."
11. 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. .................."
12. 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 reasonable 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.
13. In the instant case, both the parties are Muslims by faith and marriage of petitioner No.1 was first solemnized with respondent No.4 according to Muslim Rites and Rituals and one son and one daughter was also born out of the wedlock of petitioner No.1 and respondent No.4. It is alleged that respondent No. 4 used to beat petitioner No.1 and after giving Triple Talaq to petitioner No.1, ousted her from his house along with their minor son. Thereafter, she came to her paternal house along with minor son. Petitioner No.1 gave Khula Talaq to respondent No. 4 in the year 2019 and since then she was resident at her paternal house. After four years of the alleged divorce petitioner No.1 solemnized marriage with petitioner No.2, despite being legally wedded to respondent No.4. Furthermore, an N.C.R. has also been lodged by respondent No. 4 against petitioner No.2 under Section 498, 504 I.P.C., police station-Ghoorpur, Prayagraj alleging therein that on 09.10.2023 at about 10:30 AM, petitioner No.2 enticed away petitioner No.1 along with his minor son of three years on the pretext of marriage.
14. The pleadings of the petition does not disclose the date of divorce either by Triple Talaq or by way of Khula Talaq. Petitioner No.1 did not disclose the date on which she returned to her paternal house with her minor son. It is relevant to quote hereinbelow the Section 2 of The Dissolution Of Muslim Marriages Act, 1939, which deals with the grounds for decree for dissolution of marriage:-
" 2. Grounds for decree for dissolution of marriage.?A woman married under Muslim law shall be entitle to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely: ??
(i) that the whereabouts of the husband have not been known for a period of four years;
(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;
(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;
(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
(v) that the husband was impotent at the time of the marriage and continues to be so;
(vi) that the husband has been insane for a period of two years or is suffering from a virulent venereal disease;
(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years : Provided that the marriage has not been consummated;
(viii) that the husband treats her with cruelty, that is to say, ?
(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treat
(b) associates with women of evil repute or leads an infamous life, or
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property of prevents her exercising her legal rights over it, or
(e) obstructs her in the observance of her religious profession or practice, or
(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the Qoran;
(ix) on any other ground which is recognized as valid for the dissolution of marriages under muslim law :
Provided that ?
(a) no decree shall be passed on ground (iii) until the sentence has become final;
(b) a decree passed on ground (i) shall not take effect for a period of six months from the date of such decree, and if the husband appears either in person or through an authorized agent within that period and satisfies the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said decree;
and
(c) before passing a decree on ground (v) the Court shall, on application by the husband, make an order requiring the husband to satisfy the Court within a period of one year from the date of such order that he has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be passed on the said ground"
15. 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. Petitioner No.1 could have applied for dissolution of her previous marriage on the ground mentioned in the Dissolution Of Muslim Marriages Act, 1939, however, she chose to solemnize another marriage from another person. Petitioner No.1 is still legally wedded wife of respondent No.4 and she has not obtained any decree of divorce.
16. In view of the discussions as above, it is not considered desirable that 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 :- 12.3.2024 Karan