Petitioners sought protection from interference in their live-in relationship by their legally wedded spouse. The High Court dismissed the writ petition, holding that protection cannot be granted while the legal marriage subsists.
No writ, order, or direction in the nature of mandamus was issued.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Neutral Citation No. - 2023:AHC:159267
Court No. - 50
Case :- WRIT - C No. - 7289 of 2023
Petitioner :- Chinki And Another Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ravi Pandey Counsel for Respondent :- C.S.C.
Hon'ble Ram Manohar Narayan Mishra,J.
As per office report notice has been served on respondent no. 4 through R.P.A.D. on 2.6.2023, as per postal track consignment, however, none appeared.
Heard learned counsel for the petitioner and learned Standing Counsel for the State-respondents.
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.
Learned counsel for the petitioners submitted that petitioner no. 1 was married to respondent no. 4 as far back about 12 years and no offspring born out of their wedlock. Respondent no. 4 is an alcoholic addict person, who tried to convince petitioner no. 1 to make physical relations with other person but she always refused her ill, immoral and illicit offer. She kept on bearing all sort of ill treatment and harassment meted out to her by her husband for a considerable period but she got to know that her husband was planning to kill her by administering poison in her food and for that reason, she broken all relations with him and in course of time she associated with petitioner no. 2 who is a major boy and his date of birth is mentioned as 12.6.1992 in his Adhar Card. Petitioners are cohabiting together for past four months which is in the nature of live-in relationship that is akin to marriage, however, their relationship is strongly opposed by respondent no. 4 who has become very much annoyed and is trying to lodge a false F.I.R. against petitioners. He is constantly interfering in their live-in relationship. He is hurling constant threats to them of dire consequences. Petitioners apprehend danger to their life and liberty from respondent no. 4. Date of birth of petitioner no. 1 is mentioned as 1.1.1996, thus both of them had attained the age of majority. Petitioner no. 1 also moved an application before S.P.,
Hathras on 20.2.2023 seeking protection for herself and her live-in partner. They have also filed joint affidavit in support of their averments in writ petition.
Per contra, learned Standing Counsel submitted that this is admitted fact that marriage of petitioner no. 1 with respondent no. 4 has not been dissolved by any competent court and in the eye of law, their relationship is subsisting and in these circumstances the petitioners do not deserve issuance of any writ, order or direction in the nature of mandamus to be issued by this Court.
A Division Bench of this Court in Writ-C No. 14443 of 2020, Smt. Aneeta vs. State of U.P. and others, decided on 29.7.2021 , has considered the similar matter where petitioner no. 1 Smt. Aneeta was in a relationship with petitioner no. 2 because of apathetic and torturing behaviour of respondent no. 4, her legally wedded husband who barged into the house of petitioner no. 2 and petitioners sought 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; life and personal libetty as guaranteed under Article 220 and 221 of the Constitution of India and ensure safety and protection of petitioners as well as to ensure no further hindrance is caused in their happy relationship, and the petitioner may not be harassed in any way by the local police or by the respondent no. 4 or his associates in any manner whatsoever. This Court observed in Writ- C No. 11295 of 2021 (Premwati and another Vs. State of U.P and others) that we are not against granting protection to people who want to live together irrespective of the fact as to which community, caste or sec they belong to. If the respondent no. 4 barged into the house of petitioner no. 2, it is in the realm of criminal dispute for which she can move the criminal machinery available in the country. But none law abiding citizen who is already married under the Hindu Marriage Act can seek protection of this Court for illicit relationship, which is not within the purview of social fabric of this country. The sanctity of marriage pre-supposes divorce. If she has any difference with her husband, she has first to move for getting separated from her spouse as per law applicable to the community if Hindu law does not apply to her. Liv-in relationship cannot be granted at the cost of social fabric of this country. Directing the police to gran protection to them may indirectly given our assent to such illicit relations.
A Division Bench of this Court in Writ-C No. 18743 of 2020 (Asha Devi and another Vs. State of U.P. and others), decided on 1.12.2020, has held that it is settled law that writ of mandamus
can be issued if the petitioner has legal right to performance of a legal duty by the party against whom mandamus is sought and such right must be subsisting on the date of petition. It is well settled law that writ of mandamus can not be issued contrary to law or to defeat a statutory provision including penal provision. The petitioners do not have legally protected and judicially enforceable subsisting right to ask for mandamus as it is stated in the petition that petitioner no. 1 is married with some other person and there is no averment in the writ petition that petitioner no. 1 has obtained decree of divroce from her husband. In alleged representation, it has been stated that petitioner nos. 1 and 2 are living as husband and wife. This Court answered the question no. 1 in negative which is reproduced as under:-
"(i) Whether the petitioners, who claim themselves to be living together as husband and wife; can be granted protection when the petitioner No.1 is legally wedded wife of someone else and has not taken divorce sofar?"
Considering rival submissions of learned counsel for the parties and judicial authorities of this Court cited as above, this Court is not inclined to issue any writ, order or direction in the nature of mandamus for protection to petitioners who are living in live-in relationship, as the petitioner no. 1 is legally wedded wife of respondent no. 4 and their marriage has not been dissolved by orders of any competent court, therefore, it would be deemed to be subsisting in the eye of law. In such situation, protection to petitioners who are claimed to have been living in live-in relationship, cannot be granted in exercise of powers conferred under Article 226 of the Constitution of India.
Accordingly, petition stands dismissed with above observations.
Order Date :- 8.8.2023 A.P. Pandey
Digitally signed by :- ANAND PRAKASH PANDEY High Court of Judicature at Allahabad
2 issues framed by the court
Whether protection under Article 226 against spousal harassment can be granted to a petitioner who has not dissolved her legal marriage to live with another person?
Whether a writ petition can be maintained when the petitioner is legally wedded to someone else without a decree of divorce?
Colour shows how this judgement treated each authority
Smt. Aneeta vs. State of U.P. and othersDistinguished¶12
Writ-C No. 14443 of 2020, Smt. Aneeta vs. State of U.P. and others
Premwati and another Vs. State of U.P and othersDistinguished¶12
Writ- C No. 11295 of 2021 (Premwati and another Vs. State of U.P and others)
Asha Devi and another Vs. State of U.P. and othersFollowed¶13
Writ-C No. 18743 of 2020 (Asha Devi and another Vs. State of U.P. and others)
Chinki
Unknown Person
State Of U.P.
Other Respondent 1
Other Respondent 2
Other Respondent 3
Ram Manohar Narayan Mishra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
