Orissa High Court
Rashmi Roshan @ Nigar vs Union Of India on 9 April, 2025
ORISSA HIGH COURT : CUTTACK
W.P.(C) No.19271 of 2016
In the matter of an Application under
Articles 226 and 227 of the Constitution of India, 1950
***
Rashmi Roshan @ Nigar Aged about 30 years Wife of Md. Sabir Ahemad Resident of Village: Dilawarpur PO/PS/District: Kendrapara At present residing C/o. Ashyana, Society for Weaker Community (Short Stay Home) At: Badasankarpur (near Masjid) PO/District: Bhadrak - 756 100. ... Petitioner
-VERSUS-
1. Union of India Represented through Secretary Ministry of Defence, New Delhi - 110 011.
2. Air Officer Commanding Air Force Record Office, Subroto Park, New Delhi - 10 W.P.(C) No.19271 of 2016 Page 1 of 65
3. The Commanding Officer 251 Su, C/o-4 Wing Air Force, 56 APO Agra, At/PO: Agra, Uttar Pradesh.
4. Md. Sabir Ahemad Son of Md. Safique Ahemad Service No. 903512, CPL ACH GD Resident of Village: Dilawarpur PO/PS/District: Kendrapara At present:
Serving at 251 Su, C/o-4 Wing Air Force, 56 APO, Agra Uttar Pradesh. ... Opposite parties Counsel appeared for the parties:
For the Petitioner : Dr. Binoda Kumar Mishra, Mr. Bijaya Kumar Mishra, Dr. Sadanand Bag, Advocates For the Opposite party : Mr. Santosh Kumar Samantaray, Nos.1, 2 and 3 Central Government Counsel For the Opposite party : Mr. Amiya Kumar Mishra, No.4 M/s. Anoop Mishra, J. Sahoo, S.S. Parida, Advocates P R E S E N T:
HONOURABLE MR. JUSTICE MURAHARI SRI RAMAN Date of Hearing : 02.04.2025 :: Date of Judgment : 09.04.2025 J UDGMENT W.P.(C) No.19271 of 2016 Page 2 of 65 The approach of the petitioner before this Court:
Beseeching issue of writ of mandamus under Article 226 of the Constitution of India to the opposite party Nos.2 and 3 to deduct amount of maintenance from the salary of the opposite party No.4 in terms of Section 92(i) of the Air Force Act, 1950, with a further direction to record the name of the petitioner in the service book of the opposite party No.4 giving her the status of ―wife‖, the instant writ petitioner has been filed.
Facts:
2. The relevant facts as adumbrated in the writ petition by the petitioner are stated herein below.
2.1. The petitioner claiming to have got married to the opposite party No.4 on 25.06.2006 alleged to have been ill-treated in her in-law's house which compelled her to leave her matrimony. On the intervention of gentlemen, both the petitioner and the opposite party No.4 got married again as per Islamic ritual. A Nikahnama dated 12.12.2008 was issued by Government Qazi and on the same day both have executed marriage agreement before Notary Public mentioning therein that the Government Qazi performed Nikah on 12.12.2008 in the Kendrapara Police Station premises.W.P.(C) No.19271 of 2016 Page 3 of 65
2.2. Though they led conjugal life in the matrimonial home, the opposite party No.4 left for his place of work after some days. Since she was subjected to cruelty, an F.I.R.
was lodged alleging offence under Sections 498A/506/ 34, Indian Penal Code, 1860 in the Kendrapara Police Station. Consequently, in G.R. Case No.308 of 2009, the opposite party No.4 was arrested from his place of work, i.e., Indian Air Force at Chandigarh and got released on bail. Having surrendered before the learned Sub- Divisional Judicial Magistrate, Kendrapara, the opposite party No.4 was enlarged on bail by Order dated 22.08.2009. The police filed charge sheet in the meanwhile and the case is pending trial.
2.3. The petitioner, residing at a short stay home, instituted a case under the Protection of Women from Domestic Violence Act, 2005, which was registered as DV Misc. Case No.429 of 2009 in the Court of the learned Sub- Divisional Judicial Magistrate, Bhadrak and also filed a petition for grant of maintenance. Having got order for interim maintenance, the opposite party No.4 approached this Court in Criminal Revision No.1316 of 2009, but the said revision petition was withdrawn. The said D.V. Misc. Case No.429 of 2009 was heard on contest and by Judgment dated 03.03.2012, the learned Judicial Magistrate First Class, Bhadrak directed the opposite party No.4 to pay maintenance of Rs.5,000/-
W.P.(C) No.19271 of 2016 Page 4 of 65per month with effect from 15.10.2009 in addition thereto a sum of Rs.1,000/- per month towards house rent. On appeal being preferred by the opposite party No.4 against such order/direction, the learned District Judge, Bhadrak dismissed Criminal Appeal No.10/49- 2012-06 and thereby confirmed the Judgment of the learned Judicial Magistrate First Class. The opposite party No.4 carried the matter further before this Court in revision which was registered as Criminal Revision No.835 of 2012. Said criminal revision also got dismissed confirming the order of the Appellate Court.
2.4. In response to questionnaire issued by the Court of Inquiry to the petitioner, eliciting details of fact reply was given by letter dated 05.11.2009, but the opposite parties did not consider her name to be recorded in the service book of the opposite party No.4. The petitioner thereafter on 06.09.2016 filed representation before the Commanding Officer, Silliguri in West Bengal. On coming to know about the transfer of the opposite party No.4 to Agra, another representation dated 12.10.2016 was filed before the Commanding Officer, Air Force, C/o.56, APO.
2.5. As the marriage agreement dated 12.12.2008 executed between the petitioner and the opposite party No.4 stated to be in force whereby it was assured that no talaq or threatening for talaq can be given by the W.P.(C) No.19271 of 2016 Page 5 of 65 husband, there is no scope for him to go for second marriage. Notwithstanding such agreement, the opposite parties having not recorded the name of the petitioner reflecting marital status as ―wife‖ of the opposite party No.4 in his service book, a writ of mandamus deserved to be issued. Therefore, the petitioner has made the following prayers in the writ petition:
"It is, therefore prayed that this Hon‟ble Court may graciously be pleased to admit this Writ Petition, issue notice to opposite parties and after hearing from the counsels of parties, issue a Writ in the nature of mandamus/certiorari directing the opposite parties to deduct amount from the salary of the opposite party No. 4 for payment of maintenance to wife-petitioner as per provision under Section 92(i) of Air Force Act for the interest of justice;
And further direct to record the name of the petitioner as wife in the service record of the opposite party No.4 and ensure the opposite party No.4 will maintain marital status with petitioner by keeping her in his service place taking the facts and circumstances of the case;
And issue any other order/orders, direction/directions and writ/writs as this Hon‟ble Court may deem fit and proper giving complete justice to the petitioner;
And for this act of kindness the petitioner as in duty bound shall ever pray."
Response of the opposite parties:
W.P.(C) No.19271 of 2016 Page 6 of 653. Counter affidavit in response to the averments made in the writ petition has come to be filed on behalf of the opposite party Nos.1 to 3.
3.1. It is stated that in response to show cause notice dated 18.06.2012 issued to the opposite party No.4 asking him to submit his application with requisite documents for taking Personnel Occurrence Report of his marriage and outcome of the case before the learned Family Court, Cuttack, in his reply dated 03.07.2012 he submitted that talaq has been given to Rashmi Roshan @ Nigar on 01.09.2009 as per Hanif Muslim Law and copy of talaqnama was served on the petitioner through the learned Family Court. As the talaqknama issued vide Serial No. N-14-239/240 (Register-B, Book-II, Divorce Certificate) by Md. Abdul Wahid, Mohammedan Registrar and Shaher Qazi, Cuttack, as provided in Section 6 of the Act for the registration of Mohammedan Marriage and Divorce, bore no signature of Rashmi Roshan @ Nigar, a representative of the Air Force Police was asked to verify the veracity of the document. The verification was carried out on 16.02.2015 and found to be genuine. A certificate to that effect was also obtained by the department from the Qazi.
3.2. The application of the air warrior dated 10.06.2013, 27.06.2013 and 27.10.2014 for recognising his talaqnama and permission to marry Sahista Parwin was W.P.(C) No.19271 of 2016 Page 7 of 65 then considered and was approved vide 1041/189/Disc., dated 03.03.2015 for recording the name of Sahista Parwin as wife of the opposite party No.4.
3.3. Per Air Force Order No. 134 of 1998 to record any occurrence in personal service record the individual is required to apply with valid requisite documents as soon as the event occurs. Till the petitioner forwarded letter which was received at the petitioner's Unit on 28.12.2008, non-disclosure of marriage could not come to fore. To enter the name of petitioner as wife, the opposite party No.4 was required to apply along with all valid documents as proof of marriage and submit marriage photographs (joint) for the purpose of record. As he did not submit the said documents punishment of ―reprimand' was awarded under the provisions of the Air Force Act.
3.4. The opposite party No.4 had submitted repeated applications for according permission to marry after divorcing (talaq) the petitioner. As per Muslim Law, a Muslim of sound mind may divorce (dissolve the marriage) at his ―will‖ without the intervention of Court. Further, continuation of criminal proceedings against the opposite party No.4 does not debar him of his right to get married, as his status is ‗unmarried' after pronouncing talaq vice the petitioner.
W.P.(C) No.19271 of 2016 Page 8 of 653.5. The petitioner prayed for relief in this writ petition is commented by the opposite party Nos.2 and 3 to the extent that the application of the air warrior dated 10.06.2013, 27.06.2013 and 27.10.2014 for recognising his talaqnama and permission to marry Sahista Parwin was considered after due verification of the genuineness of talaqnama issued by a registered body vide Sl. No. N- 14-239/240 (Register B Book II, Divorce Certificate) by Md Abdul Wahid, Mohammedan Registrar and Shaher Qazi, Cuttack and was approved vide EAC 1041/189/Disc dated 03.03.2015 for recording the name of Sahista Parwin as wife. The recording of name of Sahista Parwin was taken into consideration before the interim order dated 09.11.2016 was passed in the present case while issuing notice, which reads as follows:
"As an interim measure it is directed that the opposite parties 1 to 3 shall not take any decision on any declaration given by the opposite party No.4 regarding his marriage to any other person except petitioner till the next date."
3.6. Hence, at this stage the petitioner cannot be recognised as legally wedded wife for the purpose of record and deduction of amount towards maintenance.
4. A counter affidavit has also been filed by the opposite party No.4, asserting that the direction of the learned W.P.(C) No.19271 of 2016 Page 9 of 65 Judicial Magistrate First Class as confirmed in the Appeal and affirmed by this Court in Criminal Revision being No.835 of 2012, is binding between the petitioner and the opposite party No.4 so far as payment of maintenance of Rs.5,000/- per mensem and Rs.1,000/- towards house rent per mensem. It is asserted that the opposite party No.4 has been depositing such amounts regularly, to which evidence is furnished in Annexure- A/4.
4.1. Denying and disputing marriage held on 25.06.2006 at Mazar and describing the marriage on 12.12.2008 as forcible one in a Police Station with the help of NGO on the basis of F.I.R. 343/2008 at Kendrapara, it is affirmed that the learned Judicial Magistrate First Class had opined in the Order-sheet maintained in D.V. Misc. Case No.429 of 2009 to the following effect (extracted from paragraph 6 of the counter affidavit):
"*** from the evidence adduced by aggrieved person and her witnesses as well as from the documentary evidences produced, the Court is of the opinion that aggrieved person has proved her domestic relationship with respondent No.1 though conclusive proof cannot be drawn out regarding the marriage from the said document."
4.2. The petitioner on the basis of three dates of marriage, i.e., 25.06.2006, 07.11.2005 and 12.12.2008, filed five cases against the opposite party No.4 relating to dowry, W.P.(C) No.19271 of 2016 Page 10 of 65 torture and maintenance. However, by way of affidavit evidence of talaqnama was adduced before the Family Court on 04.09.2009 in the proceeding being CRP No.71 of 2007 stating that divorce between the opposite party No.4 and the petitioner had already been effected on 01.09.2009, which fact has been recorded on 20.12.2014 in the Register-B (Book-II) at serial No.N.14--239/240 (column No.6).
4.3. After the aforementioned divorce, the opposite party No.4 got married to Sahista Parwin on 16.08.2013 vide Certificate of Marriage (Annexure-C/4) issued under Section 13 of the Special Marriage Act, 1954.
4.4. It is further asserted that the marriage agreement executed on 12.12.2008 arose out of forcible marriage which lost its force after talaq being effected on 01.09.2009. The Air Force Authorities conducting Court of Inquiry qua the opposite party No.4 though reprimanded him for not applying for Personnel Occurrence Report and not apprising the authorities about cases against him, being satisfied about the genuineness of talaqnama by conducting such inquiry, permitted the opposite party No.4 to marry Sahista Parwin.
4.5. While affirming that the direction to pay maintenance being complied with religiously, it is stated that as per W.P.(C) No.19271 of 2016 Page 11 of 65 paragraph 6 of AFO 24 of 2000, if the application is based on an order of a civil Court granting maintenance allowance the case will not be processed under Section 91(i) or 92(i) of the Air Force Act. The petitioner is to be intimated and advised to progress the matter accordingly under the Code of Criminal Procedure. However the individual may be advised and a record is to be kept to the effect that:
(a) He should respect the Court Orders and the maintenance allowance regularly, unless he obtains a stay from a competent Court;
(b) Default in payment may result in his arrest/ imprisonment and/or attachment of pay and allowances.
As per paragraph 18 of AFO 24 of 2000 in case the spouse of a person subject to AFA is granted a maintenance allowance by the Civil Court, no further maintenance allowance would be granted under Section 91/92 of Air Force Act, 1950.
In the present case the opposite party No 4 has lawfully obeyed the order and as of now he is not a defaulter. Hence, under aforesaid scenario, the petitioner's maintenance cannot be attached to salary of opposite party No 4.
W.P.(C) No.19271 of 2016 Page 12 of 654.6. The opposite party No.4 raising question of maintainability of the nature of prayers made in the writ petition, stated that no direction to record the name of the petitioner as ―wife‖ in the service record of the opposite party No.4 is permissible in view of factum of marriage with Sahista Parwin is acknowledged by the Air Force Authorities on being satisfied with the genuineness of talaqnama of the opposite party No.4 with the petitioner. It is not that the petitioner is remediless to approach competent court of law in the event of default in making over the amounts of maintenance and house rent to the petitioner as directed by the criminal court.
Analysis and discussions:
5. From the pleadings it transpires that:
i. From the copy of nikahnama (Annexure-1, translated copy is not furnished) and copy of marriage agreement before the Notary Public on 12.12.2008 (Annexure-2), there appears marriage (nikah) between the petitioner and the opposite party No.4 took place on 12.12.2008, though it is claimed by the petitioner that the marriage took place on 25.06.2006.
ii. Upon report filed with respect to allegation of commission of offence under Sections 498A/506/ W.P.(C) No.19271 of 2016 Page 13 of 65 323/34, Indian Penal Code, 1860 as false (Annexure-F/4), Criminal Proceeding No.71 of 2007 filed at the behest of the petitioner (Reshmi Roshan @ Nigar) before the learned Judge, Family Court, Cuttack, came to be ended with withdrawal by the petitioner.
iii. However, in the case under Sections 12, 18, 19, 20 and 22 of the Protection of Women from Domestic Violence Act, 2005, against the Judgment and Order dated 03.03.2012 passed in Misc. Case No.429 of 2009 by the learned Judicial Magistrate First Class, Bhadrak, Criminal Appeal bearing No.10/49-2012-06 got disposed of by Judgment dated 15.12.2012 pronounced by learned Additional Sessions Judge (FTC-I), District:
Bhadrak, finding that the parties had a relationship in the nature of marriage which is akin to a common law marriage, the said Court observed that the appellants (the opposite party No.4 was Appellant No.1) have not taken any step with regard to declaration of the marriage null and void inasmuch as there was no consent of the opposite party No.4 for marriage with the petitioner and ―the act of the appellant No.1 by giving talaq to the respondent (petitioner herein) goes to show that he had divorced his wife. The learned Appellate Court W.P.(C) No.19271 of 2016 Page 14 of 65 sustained the maintenance allowance and the amount of house rent to be paid to the petitioner by the opposite party No.4, as awarded by the learned Judicial Magistrate First Class. Said Appellate Order dated 15.12.2012 of the learned Additional District and Sessions Judge (FTC-I), Bhadrak being carried to this Court in revision under Section 401 of the Code of Criminal Procedure, 1973, registered as Criminal Revision No.835 of 2012, the same got dismissed by Order dated 24.06.2016.
iv. Since the opposite party No.4 did not disclose such domestic relationship/marriage to the authorities concerned, he was reprimanded.
v. Be that be, copy of Register-B (Book-II) has been enclosed to the counter affidavits of the opposite party No.4 as also other opposite parties to fortify their argument that talaqnama was issued on 20.12.2014 wherein it has been categorically depicted that:
"Mr. Md. Sabir Ahemad confessed in a statement that „I was married to Reshmi Raushan Nigar on 12th day of December, 2008, but she did not have conjugal relation and did not sleep with me in the same bed. Moreover she every now and then picked us quarrel with. This made my life miserable. Today I would like to make you all and the shaher quazi clear that I had given one Falaqu-e-Bayin W.P.(C) No.19271 of 2016 Page 15 of 65 (one divorce) to Reshmi Raushan Nigar on 1st day of September, 2009. I had already submitted the Talaque Nama to Reshmi Raushan Nigar with signatures of mine and two witnesses. She had not brought any dowry. So only the amount of dower (Meher) Rs.50,000/- (Rupees Fifty thousand only) and the Rs.3,500/- (Rupees Three thousand thousand and Five hundred only) towards her maintenance is due with me will be paid to her as soon as possible. From the day I divorced her she is no longer my wife and I am no longer her husband."
vi. Upon permission being granted by the authorities concerned being satisfied on conducting inquiry that the talaqnama was genuine, nikah took place between the opposite party No.4 and Sahista Parwin and a Certificate of Marriage was issued under the provisions of the Special Marriage Act, 1954, on 16.08.2013 acknowledging marriage between the opposite party No.4 (Md. Sabir Ahemad) and Sahista Parwin. Necessary documents, like Life Membership Card and Dependent Identity Card, were issued in favour of said Sahista Parwin, reflecting her as ―wife‖ of the opposite party No.4 by the Indian Air Force Authorities.
5.1. With the aforesaid background facts, when this Court examines the relationship of the petitioner with the opposite party No.4, it could be ascertained from the W.P.(C) No.19271 of 2016 Page 16 of 65 Judgment of the learned Additional District and Sessions Judge (FTC-I), Bhadrak that, "Having gone through the material on record, I find that the respondent (petitioner herein) has established in the instant case that she had a relationship with appellant No.1 (opposite party No.4 herein) in nature of marriage which is akin to a common law marriage."
5.2. The finding of fact of the Court is unequivocal to show that the marriage between the opposite party No.4 and the petitioner is ―akin‖ to marriage and in the nature of marriage, but there is no finding that there was ―marriage‖ between them. Nonetheless, against the said Judgment and Order of the learned Additional District and Sessions Judge (FTC-I), Bhadrak, in the criminal revision of the opposite party No.4 being Crl. Rev. No.835 of 2012, vide Order dated 24.06.2024 it has been observed as follows:
8. As provided under the PWDV Act, the aggrieved person/wife can approach the Magistrate under Section 12 of the PWDV Act seeking one or more reliefs. 'Domestic relationship' as defined in Section 2(f) of the PWDV Act means that a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.W.P.(C) No.19271 of 2016 Page 17 of 65
9. It would be appropriate to re-produce paragraph-33 of the judgment of the Apex Court in the case of D. Velusamy Vrs. D. Patchaiammal, 2011 CRI.L.J. 320 = (2010) 10 SCC 469 here below:
„33. 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.
10. The opposite party-wife in her evidence has stated that she had relationship with the petitioner no.1 since 07.11.2005. On 25.06.2006 she and the petitioner No.1 stayed in Hotel „Blue Vine, Bhadrak‟ and in that evening the friends of the petitioner No.1- husband called a Kaji and Nikahanama was performed as per Muslim rituals. On her request to take her to his parental house, the petitioner No.1 stated that his parents would not accept her and they would demand dowry of Rs.5 lacs. On 26.06.2006 they stayed in her uncle's house and on the next day when they went to the matrimonial home, the mother of the petitioner no.1 demanded dowry of Rs.5 lacs to accept her as their daughter-
W.P.(C) No.19271 of 2016 Page 18 of 65in-law and she was assaulted and driven out from their house.
11. The opposite party-wife had further stated that on 12.12.2008 police arrested the petitioner No.1 and his father in connection with the case initiated by her and being called by police, her parents, the Secretary of the short-stay home and others went to Kendrapara Police Station and their marriage was performed in presence of the Kaji. An agreement was executed before the Notary, Bhadrak and after marriage she stayed in her in-law‟s house peacefully for a period of six months and thereafter she was tortured. The petitioner no.1-husband insisted her to obey his mother. She also stated that the petitioner No.1-husband attempted to kill her and when she telephonically informed the matter to her parents, they came and rescued her from the clutches of her husband. P.W.2 stated that on 26.06.2006 the petitioner No.1 and the opposite party had came to their house and stayed in that night. P.W.3, the father of the opposite party also stated about the marriage in the Police Station and about the parties staying together in different hotels. P.W.5, the proprietor of the Hotel stated that the couple had stayed in his hotel "Blue Vine" on different occasions. P.W.6 testified that he had attended the Nikah of the couple and further added that they remained as husband and wife in the house of the petitioner No.1. The petitioners have not adduced any evidence in support of their pleadings.
12. Evidence adduced on behalf of the opposite party-
wife goes to show that she had love affairs with the W.P.(C) No.19271 of 2016 Page 19 of 65 petitioner No.1 since 2006 and that on 12.12.2008 the opposite party had married to the petitioner no.1 in Kendrapara Police Station in presence of the relations and they remained as husband and wife in the house of the petitioner No.1. It further emerges that after she was rescued from the house of her in- laws she remained in Asiyana short-stay home. It is the case of the petitioners that the marriage dated 12.12.2008 in Kendrapara Police Station was a forced marriage and the petitioner No.1 was not a willing party to the same. If in fact the petitioner no.1 had married the opposite party-wife under compulsion of police, he could have made allegations before higher police authorities. Equally, he could have initiated cases before proper Court for declaring the marriage as null and void on the ground of police pressure or compulsion, but things are not so. No explanation has been adduced by the petitioners in this context. Rather, the petitioners had pleaded that the petitioner No.1 had given Talaq to the opposite party-wife. The so-called Talaq was just an afterthought to get rid of the rigidity and legal effect of the marriage.
13. As per Section 2(a) of the PWDV Act, „aggrieved person‟ means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent. „Domestic violence‟ has been defined under Section 3 of the PWDV Act which is very exhaustive. The conduct of the petitioners as stated by the opposite party wife in her evidence goes to show that she was subjected to domestic violence and she was an aggrieved person within the purview of PWDV Act. That apart, W.P.(C) No.19271 of 2016 Page 20 of 65 even if it is assumed that the petitioner No.1 had divorced the opposite party-wife, by giving Talaq, still then being an estranged wife she has right to stay in her husband‟s house and she is also entitled to receive maintenance from him. Both the Courts below after elaborately discussing the evidence have rightly allowed the claim of the opposite party: wife for separate residence and maintenance. So far quantum of maintenance and rent, the same appears to be in consonance with the income of the petitioner No.1-husband who is admittedly working in Indian Army. There is no apparent perversity in the findings of both the Courts below and for that the impugned orders of both the Courts below need no interference by this Court in this revision petition.
14. Hence, this revision petition being devoid of any merit stands dismissed. L.C.R. be sent back forthwith along with a copy of this order."
5.3. It emanates from the above orders that the petitioner has been in relationship with the opposite party No.4 akin to marital relationship, but not relationship on account of ―marriage‖. It is also pertinent to notice that the observation of this Court in the criminal revision was on the basis that the petitioners therein (the opposite party No.4 herein) did not adduce any evidence in support of pleadings. In the present petition, the opposite party No.4 in his counter affidavit has placed on record the material evincing that talaqnama was issued on 20.12.2014 with recording of fact that talaq was effected qua the petitioner by the opposite party W.P.(C) No.19271 of 2016 Page 21 of 65 No.4 on 01.09.2009. After the said document being verified as genuine, the authorities have permitted the opposite party No.4 to marry Sahista Parwin, who was issued with Cards by the Indian Air Force recognizing her status as ―wife‖ of Md. Sabir Ahemad. Furthermore, a Marriage Certificate has also been granted recording the name of Sahista Parwin as wife of the opposite party No.4 under the provisions of the Special Marriage Act.
5.4. Sri Amiya Kumar Mishra, learned counsel appearing for the opposite party No.4 forcefully contended that so long as the talaqnama is subsisting and not challenged before the competent Court of law, it would not be justified on the part of the petitioner to assert that the name of the petitioner should find place in the service book of the opposite party No.4.
5.5. Dr. Binoda Kumar Mishra, learned counsel for the petitioner laid emphasis on the marriage agreement executed on 12.12.2008 between the petitioner and the opposite party No.4 before the Notary Public has sanctity and such document should have been respected by the Indian Air Force Authorities to record the name of the petitioner in the service book of the opposite party No.4. As against such argument, Sri Amiya Kumar Mishra, learned Advocate urged that such marriage is not recognized in the law.
W.P.(C) No.19271 of 2016 Page 22 of 655.6. This Court would wish to examine the status of execution of marriage by Notaries.
5.7. In the Office Memorandum bearing F.No. N-
15011/211/2024-NC, issued by the Government of India in the Ministry of Law and Justice, Department of Legal Affairs (Notary Cell), dated 10.10.2024 it has been stated as follows:
"The Notaries Act, 1952 and the Notaries Rules, 1956 regulate the profession of Notaries. In pursuance of Section 3 of the Notaries Act, 1952, the Central Government, for the whole or any part of India and any State Government, for the whole or any part of the State, may appoint as Notaries any legal practitioners or other persons who possess such qualifications as may be prescribed. The functions and duties of Notaries are enumerated in Section 8 of the Notaries Act, 19521. The transaction 1 Section 8 of the Notaries Act, 1952, reads as under:
―8. Functions of notaries.--
(1) A notary may do all or any of the following acts by virtue of his office, namely:
(a) verify, authenticate, certify or attest the execution of any instrument;
(b) present any promissory note, hundi or bill of exchange for acceptance or payment or demand better security;
(c) note or protest the dishonour by non-acceptance or non-payment of any promissory note, hundi or bill of exchange or protest for better security or prepare acts of honour under the Negotiable Instruments Act, 1881 (XXVI of 1881), or serve notice of such note or protest;
(d) note and draw up ship‟s protest, boat‟s protest or protest relating to demurrage and other commercial matters;
(e) administer oath to, or take affidavit from, any person;
(f) prepare bottomry and respondentia bonds, charter parties and other mercantile documents;
(g) prepare, attest or authenticate any instrument intended to take effect in any country or place outside India in such form and language as may conform to the law of the place where such deed is intended to operate;W.P.(C) No.19271 of 2016 Page 23 of 65
of business by a Notary is regulated by Rule 11 of the Notaries Rules, 1956.
2. It is clear from the plain reading of Section 8 of the Notaries Act, 1952 and sub-rule (8) of Rule 11 of the Notaries Rules, 1956 that execution of marriage or divorce affidavit is not the function of the Notary. The functions of Notaries as envisaged in Section 8 of the Notaries Act, 1952 and sub-rule (8) of Rule 11 of Notaries Rules, 1956 do not authorise any Notary to notarise an affidavit of marriage or divorce. Neither the Notary is authorized to certify the marriage nor competent to execute the divorce deed under the Notaries Act, 1952 and the Notaries Rules, 1956. A Notary has not been appointed as a Marriage Officer.
3. Despite the above legal position, it has come to notice that some Notaries are executing documents regarding marriage, divorce, etc. Further, some Notaries are also issuing Marriage Certificates and allowing the execution of declarations of marriage between the parties, which has far-reaching consequences.
4. Hon‟ble High Court of Orissa and Hon‟ble High Court of M.P. have also clearly held that Notaries are not appointed as Marriage Officers and they are not authorised to execute marriage or divorce
(h) translate, and verify the translation of, any documents from one language into another;
(h-a) acts as a Commissioner to record evidence in any civil or criminal trial if so directed by any Court or authority; (h-b) act as an arbitrator, mediator or conciliator, if so required;
(i) any other act which may be prescribed. (2) No act specified in sub-section (1) shall be deemed to be a notarial act except when it is done by a notary under his signature and official seal."
W.P.(C) No.19271 of 2016 Page 24 of 65deeds. References may be made to the following decisions in this regard:
(1) Partha Sarathi Das Vrs. State of Orissa and Others; 2023 SCC OnLine Ori 5657 of Hon'ble High Court of Orissa (Date of judgment:
14.09.2023)
(ii) Mukesh S/o Mr. Lakshman @ Lakshminaryan Vrs. The State of M.P., M. Cr. C. No. 44184 of 2020 of Hon'ble High Court of M.P. (Date of judgment: 31.12.2020)
(iii) Bundel Singh Lodhi Vrs State of M.P., M. Cr. C. No. 15168 of 2021 of Hon'ble High Court of M.P. (Date of judgment: 30.04.2021).
5. An act or omission on the part of any Notary in respect of any provision of the Notaries Act, 1952 or the Notaries Rules, 1956 will be seen as professional misconduct and the Notary concerned will render himself/herself liable to be dealt with in accordance with the provisions contained in Rule 13 of the Notaries Rules, 1956 and action may also be taken against him/her by the appropriate Government under sub-rule (12) (b) of Rule 13 of the Notaries Rules, 1956 and sub-section
(d) of Section 10 of the Notaries Act, 1952. Names of such Notaries who have been found to be guilty of professional or other misconduct rendering them unfit to practise as Notaries may also be removed from the Register of Notaries by an order of the appropriate Government in pursuance of the provision contained in sub-section (d) of Section 10 of the Notaries Act, 1952.
W.P.(C) No.19271 of 2016 Page 25 of 65The Hon‟ble Supreme Court of India in the matter of Bhagwan Singh Vrs. State of U.P. & Ors. in Diary No. 18885 of 2024 [(2024) 9 SCR 774] has observed as under in judgment/order dated 20.09.2024:
„37. Similarly, the Notaries Act 1952 regulates the profession of Notaries. The functions and duties of Notaries are enumerated in Section 8 thereof. The transaction of business by a Notary is contained in Rule 11 of the Notaries Rules 1956. Any acts or omissions thereof, on the part of the Notary would tantamount to misconduct, and the person complained against would be unfit to be a Notary.‟
6. In view of the above, it is brought to the notice of all concerned that Notaries appointed under the Notaries Act, 1952 should desist themselves from executing marriage or divorce deeds as they are not appointed as Marriage Officers. Such actions on their part are against the extant law. Any omission or commission of the Notaries Act, 1952 or the Notaries Rules, 1956 in this regard on the part of any Notary will tantamount to misconduct and action will accordingly be taken against such Notary in accordance with the provisions contained in Notaries Act, 1952 and Notaries Rules, 1956."
5.8. A Division Bench of this Court in Partha Sarathi Das Vrs.
State of Odisha, 2023 SCC OnLine Ori 5657 held as follows:
"5. *** Time and again Courts across the country have echoed it in identical voice that Notaries are W.P.(C) No.19271 of 2016 Page 26 of 65 neither authorized to issue certificates of marriage nor they are legally entitled to notarize any signed declaration of marriage, which is apparently beyond the scope of their functions prescribed under Section 8 of the Notaries Act, 1952 (Act No. 53 of 1952).
6. Noticing such illegal practice by the Notaries, a Division Bench of this Court in the case of Rohit Kumar Behera Vrs. State of Orissa, 2012 (II) ILR-Cut 395 had held as follows:
„6. As some Notaries had adopted a self-
innovated format by issuing authenticated certificate of Marriage purported to be in pursuance of Rules 11(1) and 16 of the Rules, 1956, the Law Department on 18.03.2009 had issued a letter vide Letter No. III-1-7/07 3921/L directing all the Notaries across the State not to issue Marriage Certificate which is not a function of the Notary under Section 8(1) of the Act, 1952.
***
17. The functions and transactions of business by Notary as envisaged in Section 8 of the Act, 1952 and Rules, 1956 respectively cannot be done in a routine manner without application of mind; otherwise the very purpose of enacting Section 8 of the Act, 1952 and Rule 11(8) of the Rules, 1956 would be frustrated because sanctity is attached to the certificate of the Notary. Thus, Section 8 of the Act, 1952 and Rule 11(8) of the Rules, 1956 cast an obligation W.P.(C) No.19271 of 2016 Page 27 of 65 on Notary to apply his mind while discharging his notarial functions and transactions of business.
18. Notaries are appointed for authentication of certificates/documents. Documents duly notarized by the Notaries are accepted to be genuine documents in absence of any other material. Certificates duly authenticated by the Notaries are presented before different authorities for various purposes. It is very much necessary that before authenticating any document by putting his signature and Notarial seal, the Notary should ensure that the document is a genuine one. Sometimes, it is found that power given to a Notary is misused. Therefore, it is necessary to regulate the work of the Notaries.‟
7. In the case of Ramakanta Nayak Vrs. Itishree Mohapatra, 2017 SCC OnLine Ori 219, while this Court was adjudicating a revision petition filed against the order of maintenance by Family Court, the marriage certificate issued by a Notary was placed before it and therein, this Court had again reminded the position of law declared by Rohit Kumar Behera (supra) and denied to accept such certificate issued by the Notary.
8. More recently, the Madhya Pradesh High Court in the case of Mukesh Vrs. The State of M.P., M.Cr.C. No. 44184 of 2020, decided on 31.12.2020, after being made cognizant of the aforesaid illegal practice by the Notaries, has directed the Principal Secretary, Department of Law, Government of Madhya Pradesh to issue necessary directions to W.P.(C) No.19271 of 2016 Page 28 of 65 restrain the Notaries from issuing marriage certificates. The Court, while taking serious note of such unlawful practice, has held as follows:
„The job of the Notary is defined under the Notary Act. He is not supposed to perform the marriage by executing documents. Had he properly guided and refused to execute the marriage agreement to the complainant, then the present offence would not have been committed. This Court is repeatedly receiving the cases of forged marriage performed by the Notary, therefore, the Law Department of the State is required to look into these matters as to how the Notaries and Oath Commissioners are involving themselves in executing the document in respect of the marriage, divorce, etc., which are not permissible under the law. Neither the Notary is authorised to perform the marriage nor competent to execute the divorce deed. Therefore, strict guidelines are required to be issued to the Notaries and oath commissioners for not executing such type of deed, failing which their licence would be terminated. Let a copy of this order be sent to the Principal Secretary, Law Department of State of M.P. For taking action in the matter.‟
9. Despite such authoritative pronouncements, this Court is vexed to observe that the Notaries are not abstaining themselves from issuing marriage certificates which have absolutely no value in the eyes of law and without any valid proof of marriage, they are allowing execution of declaration of marriage between the parties which have far- reaching consequences. Due to such extra-legal W.P.(C) No.19271 of 2016 Page 29 of 65 and subterfuge arrangements by the Notaries, parties are made to believe that they are legally married when in fact their marriage do not have even the slightest of legal sanctity."
5.9. Madhya Pradesh High Court observed in Lakhan Ahirwar Vrs. State of M.P., 2023 SCC OnLine MP 4227 as:
"16. Undisputedly, marriage by executing a marriage agreement is not a valid form of marriage. In Hindu law, marriage is not a contract and it has to be performed by observing Saptpadi or by any other recognized mode of marriage either under the Anand Marriage Act, Special Marriage Act, Arya Marriage Validation Act etc.
17. This Court in the case of Bundel Singh Lodhi Vrs.
State of M.P. decided on 30.04.2021 in M.Cr.C. No. 15168 of 2021 (Gwalior Bench) 2 and Mukesh S/o. Mr. Lakshman @ Lakshminarayan Vrs. The State of M.P. decided on 31.12.2020 in M.Cr.C. No. 44184/2020 (Indore Bench) has held that it is not the duty of Notary to execute a marriage agreement and even directions were given to Law Department to take action against such Notaries who were involved in executing marriage agreements.
18. This Court in the case of Bundel Singh Lodhi (supra), has held as under:
2 Reported at 2021 SCC OnLine MP 2231 = (2021) 2 MP LJ 323 = (2021) 222 AIC 304, Paragraph 11 whereof read as under: "11. From the plain reading of section 8 of Notaries Act, it is clear that execution of Marriage Affidavit and Divorce Affidavit is not the function of a Notary. Thus, it is clear that without any authority of law, marriage affidavits and divorce affidavits are being executed by Notaries, thereby, assisting the unscrupulous boys for committing rape as defined under Section 375 of India Penal Code."W.P.(C) No.19271 of 2016 Page 30 of 65
„In Hindu Law, marriage is not a contract. The marriages cannot be performed by execution of a marriage affidavit. Either, the marriage is to be performed by performing Saptpadi, or in accordance with custom. Marriage can also be performed as per the provisions of Special Marriage Act or as per the provisions of other Statutes like Anand Marriage Act, 1909 etc. However, the Counsel for the applicant, could not point out any provision, under which, a marriage can be performed by execution of an Affidavit. Similarly, he could not point out any provision of law, by which a marriage can be dissolved by execution of an Affidavit.
Notaries have never been appointed as Marriage Officers. They cannot notarize an affidavit of marriage or divorce. Furthermore, Divorce can be granted only by a decree of a Court of competent jurisdiction or as per custom."
5.10. As is urged by Dr. Binoda Kumar Mishra, learned Advocate, by stemming on the contents of paragraph 4 of the writ petition that in the ―marriage agreement it has been clearly mentioned that on 12.12.2008 the Government qazi has performed their marriage in the premises of Kendrapara Police Station‖, Sri Amiya Kumar Mishra, learned Advocate replied by advancing argument based on paragraph 8 of counter affidavit that forcible marriage with the help of the police and the NGO on 12.12.2008 cannot be held to be valid.
W.P.(C) No.19271 of 2016 Page 31 of 655.11. A Division Bench of Madras High Court in Ilavarasan Vrs. Superintendent of Police, 2023 SCC OnLine Mad 2852 observed as follows:
"8. We are wondered as to how the Advocates are authorised to perform special marriages in their office or Trade Union. When a similar matter came up for consideration in S. Balakrishnan Pandiyan Vrs. Superintendent of Police, Kanchipuram District, reported in (2014) 6 CTC 129 = 2014 SCC OnLine Mad 8815 3 , this Court has categorically held as follows:
„39. Our declaration of law that, marriages performed in secrecy in the Office of Advocates and Bar Association Rooms cannot amount to solemnisation within the meaning of Sections 7 and 7-A of the Hindu Marriage Act, cannot be used as a sword by the males for cutting the nuptial knot in matrimonial proceedings, but can be used only by the fair sex to get liberated from sham marriages of this nature. We also 3 In the ultimate, at paragraph 41, the Madras High Court held as follows:
"41. To sum up:
(a) Marriages performed in secrecy in the chambers of Advocates and Bar Association Rooms, will not amount to solemnisation and only women, who are victims of such marriage can question the same in matrimonial proceedings before the appropriate Court as a question of fact.
(b) No registration of marriage can be done under the Tamil Nadu Registration of Marriages Act, 2009 without the physical presence of the parties to the marriage before the Registrar, except under special circumstances after recording the reasons.
(c) If a Complaint is made by a party to the marriage to the Bar Council of Tamil Nadu and Puducherry against a Priest-cum-
Advocate, the Bar Council shall take appropriate action in accordance with law.
(d) On Complaints lodged by the Registering Authorities seeking protection, the Police are directed to afford sufficient protection immediately."
W.P.(C) No.19271 of 2016 Page 32 of 65hold that the Certificate of Solemnisation issued by Advocates will not be per se proof of Solemnisation of Marriage in a matrimonial dispute.
40. Coming to the propriety of Advocates going to the Registration Office and presenting the Memorandum of Registration of Marriages, Mr. R.C. Paul Kanagaraj submitted that, there is no bar for the Advocates to present the papers for Registration and he drew parallels by citing the practice of Advocates presenting documents like sale deed etc. for registration before the Registration Officials. We are unable to agree with this submission of the learned counsel for the following reasons:
[a] Under the Tamil Nadu Document Writers Licence Rules, 1982, all non-testamentary documents should have to be prepared only by a Document Writer licensed in this behalf and it shall be duly attested by him with his full name and licence number. The Rules define „Document Writer‟ as a person engaged in the profession of preparing documents. Preparation of document requires legal acumen and therefore, this falls within the province of the professional duties of an Advocate. The Registrar is required to go through the recitals in the document and also check the valuation etc. At that time, when there is a doubt in law, he will have to clarify it from the person who had drafted the document. Therefore, the W.P.(C) No.19271 of 2016 Page 33 of 65 presence of Advocate for Registration of documents becomes essential.
[b] An Advocate before registering a marriage, issues a Solemnisation Certificate in his capacity as Priest, as defined by Section 2(e) of the Act. Neither the Act nor the Rules insist upon the presence of the Priest during Registration. The scope of Registration is to check the identity of the parties and the witnesses and the enquiry is only factual. There is no question of law or legal question involved in such an enquiry for the Advocate to be present and give clarification to the Registrar of Marriages. The Registrar of Marriages is performing a public duty and the Act itself provides that he should give reasons for refusing to register a marriage and the order passed by him is an appealable one. We find there is no scope for the presence of the Lawyer-cum-Priest for effecting registration of a marriage. When the Registrar entertains any doubt with regard to the performance of the marriage, he may call upon the parties to produce further information to satisfy himself and only at that juncture, the necessity of the Priest to appear before the Registrar may arise and not otherwise. Therefore, we do not approve of Advocates appearing before the Registrar and presenting the Memorandum of Registration, for that W.P.(C) No.19271 of 2016 Page 34 of 65 would definitely lower the dignity of the Bar in the eyes of the public. The Preamble of the Bar Council Rules extracted above clearly states that, what may be lawful and moral for a person who is not a member of the Bar, or for a member of the Bar in his non-professional capacity may still be improper for an advocate.‟
9. A perusal of the above decision makes it clear that the marriage performed by the Advocates in their office is not a valid marriage, unless the marriage is registered under the Tamil Nadu Registration of Marriages Act, 2009 and the physical appearance of the parties to the marriage before the Registrar is essential.
However, the petitioner claims that their marriage was performed in the presence of the office bearers. It is not a valid one. Further, the earlier marriage performed by the parents of the detenue was not questioned either by the detenue or her parents. Hence, the earlier marriage performed by the parents of the detenue is perfectly valid and the subsequent marriage performed in the presence of the advocates and officer bearers of the Trade Union is invalid. After the above decision of the Division Bench, marriages performed by the Advocates are not valid and disciplinary action is to be initiated against those Advocates."
5.12. In view of the enunciation of law as discussed above, it is unequivocal that the marriage stated to have been effected between the petitioner and the opposite party W.P.(C) No.19271 of 2016 Page 35 of 65 No.4 in a police station on issue of nikahnama by qazi and consequent thereupon, agreement was entered into on the very date, i.e., 12.12.2008, before the Notary Public cannot possibly be held enforceable; rather, such aspect being disputed questions of fact requiring it to be proved before a competent court of law for declaration of marital status. Dr. Binoda Kumar Mishra, learned Advocate laid emphasis by way of written note of submission on the disputed question of fact that ―the talaqnama, the opposite party Nos.1 and 2 have taken into consideration, is of the year 2014 issued on 20.12.2014 and has been issued by a qazi who did not have either geographical jurisdiction to grant talaq in the marriage of the petitioner and the opposite party No.4 who belong to different districts. Secondly, the qazi is not legally empowered to certify a unilateral divorce‖. On the contrary, the opposite party No.4 has adduced evidence to demonstrate that the fact of talaq given to the petitioner on 01.09.2009 has been recorded in the talaqnama vide Register-B (Book-II) [Annexure-B/4]. Subsequently, the same being found to be genuine on verification by the Air Force Authorities, the opposite party No.4 was accorded permission to marry. Accordingly, marriage between Sahista Parwin and the opposite party No.4 was solemnized and out of their wedlock a child is born on 20.09.2016, evidence of which is available at Annexure-D/4: Birth Certificate. Air W.P.(C) No.19271 of 2016 Page 36 of 65 Force Wives Welfare Association issued Life Membership Card in favour of Sahista Parwin recognizing her as ―wife‖. A Dependent Identity Card has also been issued in her favour by the Indian Air Force, wherein she is shown as ―wife‖ of Md. Sabir Ahemad.
5.13. Basing on averment that the marriage agreement before the Notary Public contained that the opposite party No.4 would never give talaq or threaten the petitioner for talaq, Sri Binoda Kumar Mishra, learned Advocate urged that the subsequent marriage with Sahista Parwin in view of agreed covenant is illogical and illegal. Sri Amiya Kumar Mishra, learned Advocate submitted that such a contention of the petitioner is liable to be repelled as it is trite that under Section 27 to determine whether agreement is void one has to see reasonableness of restraint and onus being upon covenanter to show it to be unreasonable. It is in Superintendence Company of India (P) Ltd Vrs. Shri Krishan Murgai AIR 1980 SC 1717 = (1981) 2 SCC 246 = (1980) 3 SCR 1278 held that negative covenant not to serve anywhere else or enter into competitive business in similar lines is considered restraint of trade and therefore illegal and unenforceable under Section 27 of the Contract Act. It is, therefore, submitted relying on unobjected portion of the counter affidavit of the opposite party Nos.1 to 3 that ―In the meantime Rashmi Roshan Nigar had withdrawn the case W.P.(C) No.19271 of 2016 Page 37 of 65 CRP No.71 of 2008 that she filed before Hon'ble Court of Judge Family Court, Cuttack which she filed for grant of maintenance. ... In his reply dated 03.07.2012 to the said SCN he submitted that he had given talaq to Rashmi Roshan Nigar on 01.09.2009 as per Hanif Muslim Law and submitted copy of the talaqnama which he served to Rashmi Roshan Nigar through the Family Court‖. Restricting to avail legal remedies by way of agreement is, thus, objected to by the counsel for the opposite party No.4 is arbitrary and inoperative.
5.14. Thus, there are serious disputed questions of fact involved in the present writ petition which does not warrant this Court to exercise extraordinary power under Article 226 of the Constitution of India.
6. Sri Amiya Kumar Mishra, learned Advocate along with Sri Anoop Mishra, learned counsel for the opposite party No.4 opposing strongly against the consideration of the first prayer of the petitioner would submit that provisions of Section 91 of the Air Force Act, 1950 does not attract in the present set of fact-situation.
6.1. Section 91 of the Air Force Act, 1950, reads as follows:
"Chapter VIII Penal Deductions "91. Deductions from pay and allowances of officers.--W.P.(C) No.19271 of 2016 Page 38 of 65
The following penal deductions may be made from the pay and allowances of an officer, that is to say,--
(a) all pay and allowances due to an officer for every day he absents himself without leave, unless a satisfactory explanation has been given to his commanding officer and has been approved by the Central Government;
(b) all pay and allowances for everyday while he is in custody or under suspension from duty on a charge for an offence of which he is afterwards convicted by a criminal court or a court-martial or by an officer exercising authority under Section 86;
(c) any sum required to make good the pay of any person subject to this Act which he has unlawfully retained or unlawfully refused to pay;
(d) any sum required to make good such compensation for any expenses, loss, damage or destruction occasioned by the commission of an offence as may be determined by the court-
martial by whom he is convicted of such offence, or by an officer exercising authority under Section 86;
(e) all pay and allowances ordered by a court-
martial or an officer exercising authority under Section 86 to be forfeited or stopped;
(f) any sum required to pay a fine awarded by a criminal court or a court-martial exercising jurisdiction under section 71;
W.P.(C) No.19271 of 2016 Page 39 of 65(g) any sum required to make good any loss, damage or destruction of public or service property which, after due investigation, appears to the Central Government to have been occasioned by the wrongful act or negligence on the part of the officer;
(h) all pay and allowances forfeited by order of the Central Government if the officer is found by a court of inquiry constituted by the Chief of the Air Staff in this behalf, to have deserted to the enemy, or while in enemy hands, to have served with, or under the orders of, the enemy or in any manner to have aided the enemy, or to have allowed himself to be taken prisoner by the enemy through want of due precaution or through disobedience of orders or wilful neglect of duty, or having been taken prisoner by the enemy to have failed to rejoin his service when it was possible to do so;
(i) any sum required by order of the Central Government to be paid for the maintenance of his wife or his legitimate or illegitimate child or towards the costs of any relief given by the said Government to the said wife or child."
6.2. While referring to the above provision, Sri Amiya Kumar Mishra, learned Advocate contended that the present case involves payment to be made to the petitioner by the opposite party No.4 on account of maintenance and towards house rent as directed by the learned Judicial Magistrate First Class whose judgment was upheld not only by the Appellate Court, but also this Court in W.P.(C) No.19271 of 2016 Page 40 of 65 Criminal Revision. This Court finds force in such submission of the learned counsel for the opposite party No.4 that recovery of such amount of maintenance and house rent awarded in favour of the petitioner does not fall within the scope and ambit of Section 91(i) of the Air Force Act inasmuch as any sum required by Order of the Central Government to be paid for the maintenance of wife or towards the costs of any relief given by the said Government to the said wife would be comprehended in said provision. The learned counsel for the petitioner having not been able show any statutory provision with respect to the nature of prayer made in the writ petition, writ in the nature of mandamus cannot be issued to the opposite party Nos.1 to 3 ―to deduct amount from salary of the opposite party No.4 for payment of maintenance to wife-petitioner‖.
7. Next plank of argument advanced by both the contesting counsel for the respective parties is with respect to prayer made in the writ petition as to direct the opposite party Nos.1 to 3 to record the name of the petitioner as ―wife‖ in the service record of the opposite party No.4 and to ensure that the opposite party No.4 would maintain marital status with the petitioner.
7.1. Strenuous argument is advanced by Dr. Binoda Kumar Mishra, learned Advocate that in order to render justice this Court is required to show indulgence by acceding to W.P.(C) No.19271 of 2016 Page 41 of 65 the prayer of the petitioner. To such contention of the petitioner, Sri Amiya Kumar Mishra, learned Advocate rejuvenated his argument by urging that conceding to such a prayer of the petitioner would be to adjudicate disputed questions of fact qua marital status which is not the domain of writ Court while in seisin of the matter under writ jurisdiction.
7.2. Advancing suave submission he proceeded to amplify that if such a prayer is allowed, then the marital status of Sahista Parwin would be disturbed and such negation of marital status thereby would, in effect, nullify not only the talaq dated 01.09.2009 vide talaqnama issued on 20.12.2014 which got recorded in Register-B, Book-II. Such document was found to be genuine by the Air Force Authorities on inquiry. The veracity of such talaqnama being not questioned before any competent Court of law and the observations of this Court in the Criminal Revision cannot be held to be binding inasmuch as this Court proceeded to uphold the maintenance and house rent as awarded by the learned Judicial Magistrate First Class as affirmed in the Appellate Court on the basis that the opposite party No.4 (petitioner in the Criminal Revision) did not adduce evidence of talaq with the petitioner and nikah with Sahista Parwin.
W.P.(C) No.19271 of 2016 Page 42 of 657.3. Having perused the record it could be discerned that such documents being not impeached and the Certificate of Marriage issued under the Special Marriage Act showing marriage of the opposite party No.4 with Sahista Parwin (who is not impleaded as party to the present proceeding) being not questioned before the competent Court of law, any Order directing the opposite party Nos.1 to 3 to record the name of the petitioner describing marital status as ―wife‖ of the opposite party No.4 in his service book would tantamount to declare the marital status of the petitioner by striking off the name of Sahista Parwin. Such power of declaration is not within the purview of writ Court invoking provisions of Articles 226 and 227 of the Constitution of India.
7.4. Noteworthy here to have regard to a Division Bench decision of this Court rendered in the case of Sandhyarani Sahoo @ Mohanty Vrs. Anusaya Mohanty, MATA 4 of 2024, vide Judgment dated 02.04.2025, wherein in answering the question, "Whether the Respondent‟s prayer for declaration of her marital status is maintainable before the learned Judge, Family Court under Section 7 of the Family Courts Act, or whether she was required to approach the Civil Court under Section 34 of the Specific Relief Act?"
it is held, W.P.(C) No.19271 of 2016 Page 43 of 65
"8. This Court, after carefully considering the rival submissions and examining the statutory provisions, finds that Section 7(1)(b) of the Family Courts Act, 1984, is broad enough to encompass the relief sought by the Respondent. The provisions reads as follows:
„7. Jurisdiction.--
(1) Subject to the other provisions of this Act, a Family Court shall--
(a) have and exercise all the jurisdiction exercisable by any district Court or any subordinate civil Court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the Explanation; and
(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district Court or, as the case may be, such subordinate civil Court for the area to which the jurisdiction of the Family Court extends.
EXPLANATION.--
The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of W.P.(C) No.19271 of 2016 Page 44 of 65 conjugal rights or judicial separation or dissolution of marriage;
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person;
Additionally, Section 8 of the Family Courts Act reinforces the exclusivity of the Family Court‟s jurisdiction by expressly barring the jurisdiction of Civil Courts in matters covered under Section 7. The provision reads as:
„8. Exclusion of jurisdiction and pending proceedings.--
Where a Family Court has been established for any area,--
(a) no district Court or any subordinate civil Court referred to in sub-section (1) of Section 7 shall, in relation to such area, have or exercise any jurisdiction in respect of any suit or proceeding of the nature referred to in the Explanation to that sub-section;
(b) no magistrate shall, in relation to such area, have or exercise any jurisdiction or powers under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974);
(c) every suit or proceeding of the nature referred to in the Explanation to sub-
section (1) of Section 7 and every proceeding under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974),--
W.P.(C) No.19271 of 2016 Page 45 of 65(i) which is pending immediately before the establishment of such Family Court before any district Court or subordinate Court referred to in that sub section or, as the case may be, before any magistrate under the said Code; and
(ii) which would have been required to be instituted or taken before such Family Court if, before the date on which such suit or proceeding was instituted or taken, this Act had come into force and such Family Court had been established, shall stand transferred to such Family Court on the date on which it is established.‟ Finally, Section 20 of the Family Courts Act provides that the Act has an overriding effect over any other law that may be inconsistent with it:
„20. Act to have overriding effect.--
The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act.
9. The Hon‟ble Supreme Court, in Balram Yadav Vrs.
Fulmaniya Yadav reported in AIR 2016 SC 2161, has categorically held the following:
„Under Section 7(1) Explanation (b), a Suit or a proceeding for a declaration as to the validity W.P.(C) No.19271 of 2016 Page 46 of 65 of both marriage and matrimonial status of a person is within the exclusive jurisdiction of the Family Court, since under Section 8, all those jurisdictions covered under Section 7 are excluded from the purview of the jurisdiction of the Civil Courts. In case, there is a dispute on the matrimonial status of any person, a declaration in that regard has to be sought only before the Family Court. It makes no difference as to whether it is an affirmative relief or a negative relief. What is important is the declaration regarding the matrimonial status. Section 20 also endorses the view which we have taken, since the Family Courts Act, 1984, has an overriding effect on other laws.‟
10. The language of the above-mentioned provisions leaves no room for ambiguity. A suit seeking a declaration of marital status whether it affirms or denies the existence of a valid marriage squarely falls within the ambit of the Family Court's jurisdiction. Once the Family Court jurisdiction is established over a matter, any attempt to bypass it would undermine the very purpose of establishing Family Courts, which is to provide a specialised forum for resolving family disputes efficiently. In the present case, the core of the matter is a declaration of marital status, which aligns squarely with Section 7(1)(b) of the Family Courts Act. The Family Court had the proper jurisdiction under Section 7(1)(b) of the Act to entertain the Respondent's prayer for a declaration of her marital status. The provision clearly vests the Family Court with the authority to W.P.(C) No.19271 of 2016 Page 47 of 65 decide matters relating to the validity of a marriage and the matrimonial status of any person.
11. The Appellant‟s argument that the Respondent ought to have approached the Civil Court under Section 34 of the Specific Relief Act is misplaced, as the Family Courts Act is a special law enacted to deal with disputes of a matrimonial nature, including the determination of marital status. The principle of lex specialis derogat legi generali i.e. meaning special law prevails over general law applies in this context, giving precedence to the Family Courts Act over the general provisions of the Specific Relief Act. Furthermore, the Family Court‟s jurisdiction is not merely concurrent but exclusive for matters enumerated under Section 7, thereby precluding the jurisdiction of Civil Courts in such cases. Moreover, the fact that the Respondent initially approached the Civil Court and the plaint was returned under Order VII Rule 10 CPC further reinforces the conclusion that the Family Court was the correct forum. The Appellant‟s failure to challenge the jurisdiction in the earlier proceedings further weakens her case, as jurisdictional objections must be raised at the earliest stage of litigation.
12. Therefore, this Court finds no merit in the Appellant‟s contention regarding lack of jurisdiction. The Family Court validly exercised its jurisdiction under Section 7(1)(b) of the Family Courts Act, and the Appellant‟s objection regarding maintainability is, accordingly, untenable and stands rejected."
7.5. The nature of prayer that to maintain marital status of the opposite party No.4 with the petitioner being W.P.(C) No.19271 of 2016 Page 48 of 65 disputed question of fact to be adjudicated upon by competent Court having jurisdiction, this Court desists from issuing writ of mandamus in this regard.
8. The aforesaid discussion and analysis of various aspects now lands this Court to consider the scope of judicial review under Article 226/227 of the Constitution of India.
8.1. In Kerala State Electricity Board Vrs. Kurien E. Kalathil, (2000) 6 SCC 293 it was held as under:
"10. We find that there is a merit in the first contention of Mr. Raval, Learned counsel has rightly questioned the maintainability of the writ petition. The interpretation and implementation of a clause in a contract cannot be the subject-matter of a writ petition. Whether the contract envisages actual payment or not is a question of construction of contract. If a term of a contract is violated, ordinarily the remedy is not the writ petition under Article 226. We are also unable to agree with the observations of the High Court that the contractor was seeking enforcement of a statutory contract. A contract would not become statutory simply because it is for construction of a public utility and it has been awarded by a statutory body. We are also unable to agree with the observation of the High Court that since the obligations imposed by the contract on the contracting parties come within the purview of the Contract Act, that would not make the contract statutory. Clearly, the High Court fell W.P.(C) No.19271 of 2016 Page 49 of 65 into an error in coming to the conclusion that the contract in question was statutory in nature.
11. A statute may expressly or impliedly confer power on a statutory body to enter into contracts in order to enable it to discharge its functions. Dispute arising out of the terms of such contracts or alleged breaches have to be settled by the ordinary principles of law of contract. The fact that one of the parties to the agreement is a statutory or public body will not by itself affect the principles to be applied. The disputes about the meaning of a covenant in a contract or its enforceability have to be determined according to the usual principles of the Contract Act. Every act of a statutory body need not necessarily involve an exercise of statutory power. Statutory bodies, like private parties, have power to contract or deal with property. Such activities may not raise any issue of public law. In the present case, it has not been shown how the contract is statutory. The contract between the parties is in the realm of private law. It is not a statutory contract. The disputes relating to interpretation of the terms and conditions of such a contract could not have been agitated in a petition under Article 226 of the Constitution of India. That is a matter for adjudication by a civil court or in arbitration if provided for in the contract. Whether any amount is due and if so, how much and refusal of the appellant to pay it is justified or not, are not the matters which could have been agitated and decided in a writ petition. The contractor should have relegated to other remedies."W.P.(C) No.19271 of 2016 Page 50 of 65
8.2. In Magadh Sugar & Energy Ltd. Vrs. State of Bihar, (2022) 16 SCC 428 it has been elaborated as follows with respect to maintainability of writ petition when disputed questions of fact arise:
"20. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternative remedy is available, the existence of an alternative remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallised by this Court in Whirlpool Corpn. Vrs. Registrar of Trade Marks, (1998) 8 SCC 1 and Harbanslal Sahnia Vrs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107. Recently, in Radha Krishan Industries Vrs. State of H.P., (2021) 6 SCC 771 a two-Judge Bench of this Court of which one of us was a part of (D.Y. Chandrachud, J.) has summarised the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternative remedy. This Court has observed:
(Radha Krishan Industries Vrs. State of H.P., (2021) 6 SCC 771, SCC p. 795, para 27) „27. The principles of law which emerge are that:
27.1. The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well.
27.2. The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where W.P.(C) No.19271 of 2016 Page 51 of 65 an effective alternative remedy is available to the aggrieved person.
27.3. Exceptions to the rule of alternative remedy arise where:
(a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution;
(b) there has been a violation of the principles of natural justice;
(c) the order or proceedings are wholly without jurisdiction; or
(d) the vires of a legislation is challenged.
27.4. An alternative remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternative remedy is provided by law.
27.5. When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.
27.6. In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the W.P.(C) No.19271 of 2016 Page 52 of 65 High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.‟
21. The principle of alternate remedies and its exceptions was also reiterated recently in the decision in Commr. of State Tax Vrs. Commercial Steel Ltd., (2022) 16 SCC 447. In State of H.P. Vrs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499 this Court has held that a writ petition is maintainable before the High Court if the Taxing Authorities have acted beyond the scope of their jurisdiction. This Court observed: (State of H.P. Vrs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499), SCC pp. 517-18, para 23) „23. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the Taxing Authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. It was noted by this Court in L. Hirday Narain Vrs. CIT, (1970) 2 SCC 355 that if the High Court had entertained a petition despite availability of alternative remedy and heard the parties on merits it W.P.(C) No.19271 of 2016 Page 53 of 65 would be ordinarily unjustifiable for the High Court to dismiss the same on the ground of non-exhaustion of statutory remedies; unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition.‟
22. The above principle was reiterated by a three-Judge Bench of this Court in Southern Electricity Supply Co. of Orissa Ltd. Vrs. Sri Seetaram Rice Mill, (2012) 2 SCC 108. In that case, a show-cause notice/ provisional assessment order was issued to the assessee on the ground of an unauthorised use of electricity under Section 126(1) of the Electricity Act, 2003 and a demand for payment of electricity charges was raised. The assessee contended that Section 126 was not applicable to it and challenged the jurisdiction of the Taxing Authorities to issue such a notice, before the High Court in its writ jurisdiction. The High Court entertained the writ petition. When the judgment [Sri Seetarama Rice Mill Vrs. Jeypore Electrical Division, 2010 SCC OnLine Ori 467 of the High Court was appealed before this Court, it held that the High Court did not commit any error in exercising its jurisdiction in respect of the challenge raised on the jurisdiction of the Revenue Authorities. This Court made the following observations: (Southern Electricity Supply Co. of Orissa Ltd. Vrs. Sri Seetaram Rice Mill, (2012) 2 SCC 108, SCC p. 140, paras 81 & 82) „81. Should the courts determine on merits of the case or should they preferably answer the preliminary issue or jurisdictional issue arising in the facts of the case and remit the matter for W.P.(C) No.19271 of 2016 Page 54 of 65 consideration on merits by the competent authority? Again, it is somewhat difficult to state with absolute clarity any principle governing such exercise of jurisdiction. It always will depend upon the facts of a given case. We are of the considered view that interest of administration of justice shall be better subserved if the cases of the present kind are heard by the courts only where they involve primary questions of jurisdiction or the matters which go to the very root of jurisdiction and where the authorities have acted beyond the provisions of the Act. ...
82. It is argued and to some extent correctly that the High Court should not decline to exercise its jurisdiction merely for the reason that there is a statutory alternative remedy available even when the case falls in the above stated class of cases. It is a settled principle that the courts/ tribunal will not exercise jurisdiction in futility. The law will not itself attempt to do an act which would be vain, lex nil frustra facit, nor to enforce one which would be frivolous-- lex neminem cogit ad vana seu inutilia-- the law will not force anyone to do a thing vain and fruitless. In other words, if exercise of jurisdiction by the tribunal ex facie appears to be an exercise of jurisdiction in futility for any of the stated reasons, then it will be permissible for the High Court to interfere in exercise of its jurisdiction. This issue is no longer res integra and has been settled by a catena of judgments of this Court, which we find entirely unnecessary to refer to in detail.‟ W.P.(C) No.19271 of 2016 Page 55 of 65
23. In Union of India Vrs. State of Haryana, (2000) 10 SCC 482 the assessing authorities imposed sales tax on the rentals charged for supply of telephones. Writ petitions were filed in the High Court challenging the levy. The writ petitions were dismissed on the ground that an alternative remedy of a statutory appeal was available. An appeal against these orders was filed before this Court. The appeal was allowed and the matter was remanded back to the High Court for determination since it involved a question of law on whether the supply of telephones amounted to sale."
8.3. In State of U.P. Vrs. Ehsan, (2023) 13 SCR 905 it has been succinctly held that, "We are conscious of the law that existence of an alternative remedy is not an absolute bar on exercise of writ jurisdiction. More so, when a writ petition has been entertained, parties have exchanged their pleadings/ affidavits and the matter has remained pending for long. In such a situation there must be a sincere effort to decide the matter on merits and not relegate the writ petitioner to the alternative remedy, unless there are compelling reasons for doing so. One such compelling reason may arise where there is a serious dispute between the parties on a question of fact and materials/ evidence(s) available on record are insufficient/ inconclusive to enable the Court to come to a definite conclusion."
8.4. In the present case though pleadings are completed, it is felt apposite not to adjudicate the disputed questions about ―marital status‖ of the parties, particularly when W.P.(C) No.19271 of 2016 Page 56 of 65 Sahista Parwin is not impleaded as party to the present proceeding. Doing so would imperil the marital status of Sahista Parwin, whose name has already been entered in the service records of the opposite party No.4 and the status of the child born out of wedlock of the opposite party No.4 and Sahista Parwin would also be questioned. Material made available by the parties suggests that though there was claim of marriage between the petitioner and the opposite party No.4 was subsisted since 2006, the same has been stated to have been performed again in 2008 as evidenced from newspaper publications. As per the petitioner such marriage was taken place in a police station with the help of NGO on 12.12.2008, which fact is asserted to be recorded in nikahnama (assumed to be in Urdu language and English translated copy of such document is not available in record) and thereafter a marriage agreement was executed before the Notary Public on 12.12.2008. Nevertheless, such marriage is claimed to have been terminated by issue of talaqnama vide Register-B, Book- II (Divorce Certificate). On inquiry being conducted by the Air Force Authorities regarding genuineness of such talaqnama, and permitted by such competent Authorities in EAC-1041/189/Disc, dated 03.03.2015, the petitioner got married to one Sahista Parwin, who is described in the service book of the opposite party No.4 as ―wife‖. A copy of Marriage Certificate issued under the W.P.(C) No.19271 of 2016 Page 57 of 65 provisions of the Special Marriage Act is enclosed to the counter affidavit depicting marriage between the petitioner and the opposite party No.4 and evidence is also laid by the opposite party No.4 to show that out of wedlock, a child was born on 20.09.2016 (as is apparent from the copy of Certificate of Birth). The factum of marriage between the opposite party No.4 and Sahista Parwin is questioned basing on the finding recorded by this Court in the revision, being Criminal Revision No.835 of 2012, vide Order dated 24.06.2016. Careful reading of said Order indicates that had forcible marriage was performed between the petitioner and the opposite party No.4, the latter would have proceeded to institute appropriate proceeding before competent Court for declaration of marriage as null and void. No explanation in this regard being offered, talaq as claimed to have been given by the opposite party No.4 is construed to be ―an afterthought to get rid of the rigidity and legal effect of the marriage‖. It is not out of place to mention that this Court while rendering such finding for the purpose of deciding lis between the parties with respect to grant of maintenance under the Protection of Women from Domestic Violence Act, 2005, observed that the opposite party No.4 did not adduce evidence in support of his pleadings. Manifestly such a finding is recorded by taking note of definition of the term ―domestic relationship‖ contained in Section 2(f) of the W.P.(C) No.19271 of 2016 Page 58 of 65 Protection of Women from Domestic Violence Act, 20054 and decision rendered by the Hon'ble Supreme Court of India in the case of D. Velusamy Vrs. D. Patchaiammal, 2011 CRI.L.J. 320 = (2010) 10 SCC 469. In the said reported decision it has been opined that ―a relationship in the nature of marriage is akin to a common law marriage‖ which falls within the scope of proceeding under the said Act of 2005.
8.5. The perception of the term ―akin‖ has illuminatingly been discussed by the Hon'ble Supreme Court of India in Gastrade International Vrs. Commissioner of Customs, 2025 INSC 411, which deserves to be mentioned:
"By way of illustration, we may explain the position. If an importer classifies the imported goods as "X", which is disputed by the Customs authority and classifies the same as "Y", the test would be whether the goods imported are "most akin" to "X" or "Y" in terms of Rule 4 of the aforesaid Rules. The importer may also claim if he so wishes, that the goods are most akin to "Z", though it may be akin to "Y" also, if such claim is more beneficial to him. Thus, it has to be shown by the Customs Authority that the imported goods bear the most affinity or resemblance or similarity to be "most akin" to the specified goods and not mere similarity or akinness. In other words, the test will be whether the imported goods 4 Section 2(f) defines the term ―domestic relationship‖ as:
"(f) "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;"W.P.(C) No.19271 of 2016 Page 59 of 65
bear the closest resemblance or similarity with the specified good so that these can be considered to be "most akin" to the specified good. Certainly, the principle of preponderance of probability may fall short of the more heightened test of "most akin" for proper classification. The imported goods may bear resemblance to more than one specified goods, in which event, unless the high degree in the test of preponderance of probability is applied, there may be difficulties in the proper classification. However, the said difficulty may be overcome if the test of "most akin" is applied. If the attributes of the imported goods show that the goods are "most akin" to the specified goods amongst an array of other specified goods, these imported goods have to be classified as the specified goods with which these goods bear the most resemblance or most akinness. Thus, in our view, application of the principle of preponderance of probability does not provide an accurate test. The more accurate and precise test will be whether the goods in question are "most akin" or most similar to the specified goods, as provided under Rule 4 referred to above."
8.6. Taking cue from the meaning of ―akin‖ from above illustration, it can safely be said that for determination of entitlement for maintenance a relationship akin to common law marriage is enough, but to establish marital status that the petitioner is ―wife‖ of the opposite party No.4 and such marriage is subsisting, would be disputed questions of fact which do require proof by leading exhaustive evidence, oral and/or documentary, before the competent Court of law.
W.P.(C) No.19271 of 2016 Page 60 of 658.7. When there emanates apparent factual dispute between the private parties, the Hon'ble Supreme Court of India in Roshina T Vrs. Abdul Azeez K.T., (2018) 14 SCR 974 laid down that:
"14. These questions, in our view, were pure questions of fact and could be answered one way or the other only by the Civil Court in a properly constituted civil suit and on the basis of the evidence adduced by the parties but not in a writ petition filed under Article 226 of the Constitution by the High Court.
15. It has been consistently held by this Court that a regular suit is the appropriate remedy for settlement of the disputes relating to property rights between the private persons. The remedy under Article 226 of the Constitution shall not be available except where violation of some statutory duty on the part of statutory authority is alleged. In such cases, the Court has jurisdiction to issue appropriate directions to the authority concerned. It is held that the High Court cannot allow its constitutional jurisdiction to be used for deciding disputes, for which remedies under the general law, civil or criminal are available. This Court has held that it is not intended to replace the ordinary remedies by way of a civil suit or application available to an aggrieved person. The jurisdiction under Article 226 of the Constitution being special and extraordinary, it should not be exercised casually or lightly on mere asking by the litigant. (See Mohan Pande Vrs. Usha Rani, 1992 (4) SCC 61 and Dwarka W.P.(C) No.19271 of 2016 Page 61 of 65 Prasad Agrawal Vrs. BD Agrawal, (2003) 6 SCC
230).
16. In our view, the writ petition to claim such relief was not, therefore, legally permissible. It, therefore, deserved dismissal in limine on the ground of availability of an alternative remedy of filing a civil suit by respondent No. 1 (writ petitioner) in the Civil Court.
17. We cannot, therefore, concur with the reasoning and the conclusion arrived at by the High Court when it unnecessarily went into all the questions of fact arising in the case on the basis of factual pleadings in detail (43 pages) and recorded a factual finding that it was the respondent No. 1 (writ petitioner) who was in possession of the flat and, therefore, he be restored with his possession of the flat by the appellant.
18. In our opinion, the High Court, therefore, while so directing exceeded its extraordinary jurisdiction conferred under Article 226 of the Constitution. Indeed, the High Court in granting such relief, had virtually converted the writ petition into a civil suit and itself to a Civil Court. In our view, it was not permissible."
Conclusion:
9. On analysis of material available on record vis-à-vis afore-discussed factual matrix, it is untrammeled that there exists dispute between private parties with respect to matrimonial issues including marital status. Whether talaq was validly effected between the petitioner and the W.P.(C) No.19271 of 2016 Page 62 of 65 opposite party No.4 and consequent upon such talaq the marriage between the opposite party No.4 and Sahista Parwin is valid and many more such disputed questions of fact do arise in the present matter which are required to be established before the competent Court of law.
9.1. With respect to the first prayer that the petitioner is entitled for a direction to the opposite party Nos.1 to 3 for deduction of amounts awarded towards maintenance and house rent as per order of the learned Judicial Magistrate First Class does not fall within the ken of Section 91(i) of the Indian Air Force Act, 1950. When the petitioner has failed to show that the opposite party Nos.1 to 3 are statutorily bound in terms of Section 91 of the Air Force Act, 1950, to deduct amounts awarded by ―Court‖ (contrast with Central Government or or any prescribed officer) towards maintenance and house rent to be paid by the opposite party No.4 to the petitioner, no writ of mandamus is liable to be issued; however, the petitioner is not remediless to enforce the payment of such amounts as directed by the learned Judicial Magistrate First Class, which got confirmed by the Appellate Court and affirmed by this Court in revision by properly instituted proceeding.
9.2. With respect to prayer of the petitioner for a direction to record her name as ―wife‖ in the service book of the opposite party No.4, the same deserves to be adjudicated W.P.(C) No.19271 of 2016 Page 63 of 65 by competent Court of law as name of ―Sahista Parwin‖ appears to have been recorded in the service records of the opposite party No.4 by the opposite parties-Air Force Authorities. Such a prayer cannot be granted in view of elaborate discussions made in the foregoing paragraphs as factual adjudication by competent Court of law is required. As the disputed questions of fact are required to be answered by a competent Court of law on the basis of evidence being led by parties, this Court refrains from exercising power under Article 226/227 of the Constitution of India.
9.3. In the presence of documents on record to show that a Certificate of Marriage between the opposite party No.4 and Sahista Parwin (who is not even impleaded as a party to the present proceeding) was issued under the Special Marriage Act by competent empowered authority after recording talaq in the talaqnama in Register-B, Book-II, which was found to be genuine by the Air Force Authorities on verification, the nature of prayer made by the petitioner does not fall within the parameters laid down by the Hon'ble Supreme Court for invocation of writ jurisdiction.
10. In view of aforesaid facts, circumstances and bearing in mind the view expressed by the Courts in the afore-
mentioned judgments coupled with reasons ascribed to W.P.(C) No.19271 of 2016 Page 64 of 65 by this Court supra, the prayers made in the writ petition do not call for any indulgence.
11. In consequence of aforesaid discussions and observations, the writ petition stands dismissed, being devoid of merit.
12. As a result of dismissal of the writ petition, the interim order passed stands vacated and all pending interlocutory applications, if any, shall stand dismissed.
(MURAHARI SRI RAMAN) JUDGE Signature Not Verified Digitally Signed Signed by: LAXMIKANT MOHAPATRA High Court of Orissa, Cuttack Designation: Junior Stenographer The 09th April, 2025//Laxmikant/Suchitra Reason: Authentication Location: High Court of Orissa, Cuttack Date: 09-Apr-2025 16:51:14 W.P.(C) No.19271 of 2016 Page 65 of 65