Dismissed

Shaista and Another v. State of U.P. and 3 Others

Allahabad HC9 Aug 2023WRIC/7044/2023

Case brief

AI extract

What is this about?

Court examined a writ petition seeking protection from a father-in-law. The court dismissed the plea due to lack of valid proof regarding the divorce from the petitioner's first husband, noting that instantaneous talaq is illegal under the Muslim Women (Protection of Rights on Marriage) Act, 2019.

What did the court decide?

Petition dismissed; petitioners directed to approach police or competent court for redressal against respondent No.4 if criminal acts occur.

Shaista and Another Vs State of U.P. and 3 Others — Matrimonial and Divorce | Allahabad HC (2023)

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Court No. - 50

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Case :- WRIT - C No. - 7044 of 2023

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Petitioner :- Shaista And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Avinash Pandey Counsel for Respondent :- C.S.C.

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Hon'ble Ram Manohar Narayan Mishra,J.

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Notice issued to respondent Nos.4 and 5 through R.P.A.D. has been served as per the postal track report whereas the notice issued to them through C.J.M. Muzaffarnagar and Shamli has not been received back till now.

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Heard learned counsel for the petitioners, learned Additional Chief Standing Counsel for the State-respondents and perused the material placed on record.

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The petitioners have preferred this writ petition for a direction upon the respondents not to interfere in their married life and also for protection of their lives and liberty.

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Learned counsel for the petitioners submitted that the petitioners process Muslim religion and they solemnize their marriage out of their free will and choice on 17.2.2023 at Chand Masjid, Kairana, Shamli according to Muslim custom. They also applied online for registration of their marriage. The petitioner No.1 was previously married with respondent No.5 Shahnavaj. However, on 11.8.2022 Shahnavaj gave divorce to petitioner No.1 according to the Muslim custom and after divorce, petitioner No.1 was living in her parental house. The relationship of petitioner No.1 and her previous husband terminated after divorce and he is not concerned with petitioner No.1 in any manner whatsoever. To the best of knowledge of the petitioners, no first information report has been lodged against the petitioners at the instance of any person. The respondent No.5 failed to appear before this Court, even after service of notice through registered post. The petitioners are apprehending danger to their life and liberty from respondent No.4, who is father of petitioner No.1. He used to threaten and harass the petitioners. The petitioner No.1 also moved an application before S.P., Shamli seeking protection for herself and petitioner No.2 but no action was taken by him in the matter. Petitioner have also filed joint affidavit in support of their averments made in present writ petition.

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Per contra, learned Additional Chief Standing Counsel submitted that the petitioners have not filed any documents in support of the averment regarding the divorce granted by respondent No.5 to petitioner No.1, who is her previous husband.

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In Muslim Women (Protection of Rights on Divorce) Act, 1986, the word “divorced woman” is defined under Section 2 (a) of the Act as "divorced woman" means a Muslim woman who was married according to Muslim law, and has been divorced by, or has obtained divorce from, her husband in accordance with Muslim law.

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The Muslim Women (Protection of Rights on Marriage) Act, 2019, legal ban on triple talaq has been imposed. It is stipulated in the Act that the instant triple talaq in any form spoken, written or by electronic means such as Email, SMS is illegal and void and punishable with up to three years in jail for the husband. Prior to commencement of this legislation in year 2017, Hon'ble Apex Court in Sayra Bano vs. Union of India and others, (2017) 9 SCC 1 declared the practice of triple talak or instant "talaq" or 'talaq-e-biddat' to be unconstitutional.

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In present case, the petitioners have stated in paragraph No.7 of the writ petition that the petitioners solemnized their marriage according to Muslim customs on 17.2.2023 against the wishes of respondent No.4, who is father of petitioner No.1. It is also stated in said Nikahnama that this is second marriage of petitioner No.1. In paragraph No.6 of the writ petition, it is stated that on 11.8.2022, Sahnavaz, husband of petitioner No.1, gave divorce to petitioner No.1 according to Muslim custom and after divorce, she was living in her parental house. However, in present writ petition, the petitioners have not disclosed as to how and in what manner the respondent No.5 gave divorce to petitioner No.1 whereas in accordance with judgement of Hon'ble Apex Court in Sayra Bano vs. Union of India and others (supra) as well as in statutory provisions contained in the Muslim Women (Protection of Rights on Marriages) Act, 2019, the pronouncement of instantaneous talak has been declared illegal.

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A Division Bench of this Court in Writ C No.14443 of 2021 (Smt. Aneeta and Another Vs. State of U.P. and 3 Others) , dismissed the petition filed by a runway couple for issuance of a writ, order or direction in the nature of mandamus commanding the respondent no.2 to protect and enforce the fundamental right of the petitioners to life and personal liberty as guaranteed under Article 21 and 22 of the Constitution of India and ensure the safety and

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protection of the petitioners as well to ensure no further hindrance is caused in their happy marital life, and the petitioners may not be harassed in any way by the local police or by the respondent no.4 or his associates in any manner whatsoever. It was submitted on behalf of the petitioners that the respondent No.4 is husband of the petitioner no.1. Petitioner no.1 Smt. Aneeta is not married to petitioner no.2 but she is having relationship with him because of apathetic and torturing behaviour of respondent no.4, her husband, who was trying to endanger the peaceful lives of the petitioners. The Division Bench further held that this Court has already disapproved such act in Writ-C No. 11295 of 2021, Smt. Premwati and another Vs. State of U.P. and others. The Division Bench final concluded that "We do not permit the parties to such illegality as tomorrow petitioners may convey that we have sanctified their illicit relations. Live-in-relationship cannot be at the cost of social fabric of this Country. Directing the police to grant protection to them may indirectly give our assent to such illicit relations. Hence, the petition is dismissed with cost." Similar opinion was given by this Court in Writ-C No. 2723 of 2023, Suneeta and another Vs. State of U.P. and 3 Others, which was decided on 25.4.2023 where one of the petitioners was previously married and their married was not dissolved by orders of competent Court.

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In view of foregoing discussions and in absence of any valid proof of divorce between the petitioner No.1 and her previous husband, I find no sufficient ground to grant the prayer made in present writ petition. The protection sought in present petition cannot be granted for want of proof of divorce between petitioner No.1 and respondent No.5.

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Accordingly, present writ petition stands dismissed .

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The petitioners may file fresh petition, if they are possessed of any proof of valid divorce between petitioner No.1 and respondent No.5.

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It is also clarified that the petitioners may approach the police authorities or competent court for redressal of their grievance against respondent No.4, the father of petitioner No.1, in case of any criminal act attributed on his part.

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Order Date :- 9.8.2023 Kamarjahan

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Digitally signed by :- KAMARJAHAN ANSARI High Court of Judicature at Allahabad

Shaista and Another v. State of U.P. and 3 Others

Case brief

What is this about?

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Shaista and Another v. State of U.P. and 3 Others

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