Smt. Fatima Nisha and Another vs State of U.P. and 5 Others

By means of the present writ petition, the petitioners have prayed for a writ in the nature of mandamus directing the respondents not to interfere in their peaceful marital life and also for a direction to provide protection.

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The petitioners claim that they are major and have performed their marriage (nikah) and living together out of their own free will. It is stated that for the said reason, the private respondents and their family members have got annoyed and the petitioners are being threatened with dire consequences. Accordingly, an application was moved by the petitioner no.2 to the Senior Superintendent of Police, Moradabad on 24.08.2025, wherein she stated that she is a major girl and she has solemnized her marriage with petitioner no.2, which has been got registered on 14.08.2025 and the married couple be protected from respondent no.6 and his four brothers.

¶14

In support of their age, petitioner no. 1 has placed on record her Certificate-Cum-Marks Sheet of the High School Examination, 2019, which shows her date of birth as 01.01.2006. Similarly, petitioner No. 2 has placed on record his Certificate-Cum-Marks Sheet of the High School Examination, 1986, showing his date of birth as 30.11.1969. It is further stated that their nikah has taken place on 06.07.2025 in the presence of the relatives/ witnesses and Kazi at Moradabad. It is also stated in paragraph 6 of the writ petition that this is the second marriage of the petitioner no.2 and he has taken due consent from his first wife, who has been impleaded as respondent

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no.7 in array of the parties. The second marriage of petitioner no.2 was solemnized with the consent of first wife. The copy of marriage registration certificate dated 14.08.2025 has also been brought on record and appended at annexure-3 to the writ petition. The petitioners had prayed that respondent nos.2, 3 and 4 i.e. police authorities be directed not to interfere in the peaceful living of the petitioners.

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Learned Additional Chief Standing Counsel argued, on the basis of instructions received by him, that a false affidavit was given by the petitioners that second marriage of petitioner no.2 was performed with the consent of his first wife. The police during inquiry recorded the statement of respondent no.7/ first wife of petitioner no.2, wherein she stated that her nikah was performed with the petitioner no.2 40 years ago and two children were born, who are aged about 35 years and 31 years, respectively, and they are living with her. She further stated that the petitioner no.2 without obtaining divorce or consent from her, solemnized second marriage with petitioner no.1 4 months ago. She specifically stated that she had not given any consent to the petitioner no.2 to perform the second marriage. Similar statements were given by both sons of the petitioner no.2.

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It is further submitted by learned Additional Chief Standing Counsel that false averments have been made by the petitioners in paragraph-6 of the affidavit filed in support of the writ petition that consent was obtained by the petitioner no.2 from his first wife to perform the second marriage/nikah and the petition is liable to be dismissed with cost.

¶20

It is also pointed out by the learned Additional Chief Standing Counsel that petitioner no. 1 had moved an application dated 24.08.2025 wherein she prayed for protection of her life and limb from her brother, Furkan, and others. However, in the present petition, no such relief has been sought by the petitioners. In the prayer clause, it is prayed that respondents no. 2, 3, and 4, being police authorities, may be directed not to interfere with the peaceful living of the petitioners, as well as not to visit or knock at the door of the petitioners.

¶21

Learned Additional Chief Standing Counsel has also stated, on the basis of report dated 15.09.2025, submitted by Sub-Inspector Deepak Kumar of Police Station Katghar, District Moradabad that petitioners are residing as a husband and wife but the private respondent nos.5 and 6 are not causing any

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kind of harassment and no information in this respect has been given by the petitioners. It is also mentioned in paragraph-16 of the police inquiry report dated 15.09.2025 that the respondent nos.2, 3 and 4 are also not causing any kind of harassment to the petitioners.

¶25

In rebuttal, learned counsel for the petitioners placed reliance on the judgment and order dated 08.05.2025 passed by a co-ordinate Bench of this Court in Application U/S 528 BNSS No.14448 of 2025 (Furkan and 2 others Vs. State of U.P. and another) , wherein in paragraphs 21 and 29, it is held that second marriage during the lifetime of a living spouse is permissible in Mohammedan Law, but with certain condition. If a Muslim man contracts a second marriage, during the lifetime of the living spouse then, his second marriage will be a valid marriage subject to the condition that the first marriage was also contracted as per the Muslim Law and a Muslim male has to give equal treatment to all wives.

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In view of judgement Furkan and 2 others (supra) , the learned counsel for the petitioners stated that petitioner no.2 has not committed any illegality or immorality in performing his second marriage. The relevant paragraphs 21 and 29 of the said judgment are reproduced herein under:-

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"21. From the above discussion, it is clear that second marriage during the lifetime of a living spouse is permissible in Mohammedan Law, but with certain condition. Therefore, if a Muslim man contracts a second marriage as per Muslim Law, during the lifetime of the living spouse then, his second marriage will be a valid marriage subject to the condition that the first marriage was also contracted as per the Muslim Law. The second marriage still can be declared as Batil (void marriage) under the Mohammedan Law but unless such a declaration is made, a second marriage of two Muslims (male and female) would be valid.

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29. It is also clear from the above analysis that as per the Mohammedan law, a Muslim male has no unfettered right to get second marriage unless he has the capacity to give equal treatment to all wives. Therefore, in view of the above analysis, as well as discussion, this Court holds :-

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(i) If a Muslim male peforms his first marriage as per Mohammedan law then second, third or fourth marriage will not be void, therefore, ingredients of Section 494 I.P.C. will not be attracted for the second marriage except in those cases where the second marriage was itself declared Batil (void marriage) as per Shariat by the Family Court u/s 7 of the Family Court Act or by any competent court.

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(ii) If the first marriage by a person is performed under Special Marriage Act, 1954, Foreign Marriage Act, 1969, Christian Marriage Act, 1872, Parsi Marriage and Divorce Act, 1936 and Hindu Marriage Act, 1955, and he performs second marriage as per the Mohammedan law, after conversion to Islam then his second marriage will be void, and offence u/s 494 I.P.C. would be attracted for such marriage.

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(iii) The Family Court has also jurisdiction u/s 7 of the Family Court Act to decide validity of a Muslim marriage performed in accordance with the Muslim Personal Law."

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I have heard rival submissions of learned counsel for the parties and perused the record.

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In Lata Singh vs. State of UP 2006 Cr.L.J. 3309 , while dealing with a case of harassment by the parents of the boy and girl, who had entered into inter-caste marriage, Hon'ble Supreme Court has issued directions to the Administration/Police authorities throughout the country in the following terms:-

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"This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such intercaste or inter- religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law."

¶37

In Bhagwan Dass v. State (NCT of Delhi), (2011) 6 SCC 396 Hon'ble Supreme Court held in paragraph 28 and 29 as under:-

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"28. ..... Often young couples who fall in love have to seek shelter in the police lines or protection homes, to avoid the wrath of kangaroo courts. We have held in Lata Singh case that there is nothing "honourable" in "honour" killings, and they are nothing but barbaric and brutal murders by bigoted persons with feudal minds. In our opinion honour killings, for

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whatever reason, come within the category of the rarest of rare cases deserving death punishment. It is time to stamp out these barbaric, feudal practices which are a slur on our nation. This is necessary as a deterrent for such outrageous, uncivilised behavior. All persons who are planning to perpetrate "honour" killings should know that the gallows await them.

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29. Let a copy of this judgment be sent to the Registrars General/ Registrars of all the High Courts who shall circulate the same to all the Judges of the Courts. The Registrars General/ Registrars of the High Courts will also circulate copies of the same to all the Sessions Judges/ Additional Sessions Judges in the States/Union Territories. Copies of the judgment shall also be sent to all the Chief Secretaries/ Home Secretaries/ Directors General of Police of all States/ Union Territories in the country. The Home Secretaries and Directors General of Police will circulate the same to all SSPs/SPs in the States/Union Territories for information."

¶43

It is an admitted fact that the petitioners have performed their nikah, and that this is the second nikah of petitioner no. 2. After performing the nikah, they have been living together as husband and wife. However, the matter in dispute is whether the consent of the first wife was obtained by petitioner no. 2 or not. The wife of petitioner no.2 has given her statement to the police that no such consent has been obtained by the petitioner no.2 for performing second nikah.

¶44

During the course of arguments, learned counsel for the petitioners did not dispute the fact that no threat of any kind was given by the private respondents after filing of the present writ petition on 27.08.2025. No such application has been brought on record.

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Be that as it may, it has been brought to my notice that the petitioners herein are living together as husband and wife and are not facing any threat from their family members. Hence, police protection at this stage is no longer required in the present case.

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However, considering the facts and circumstances of the case, but without prejudice to the merits of the case, the writ petition is finally disposed of with the direction that, if any disturbance is caused in future in the peaceful living of the petitioners, they shall approach the Senior Superintendent of Police, Moradabad, along with a copy of this order, who shall examine the matter and take necessary steps in accordance with law to

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protect the life and liberty of the petitioners.

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It is made clear that this Court has not adjudicated the validity of the marriage and/or genuineness of their marriage certificate claimed by the petitioners or the correct age of the petitioners. It is further clarified, this order has not been passed to protect the petitioners against any action or proceedings instituted in accordance with law.

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However, this order would not come in way of investigation, if any pending before the police authorities.

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The writ petition is disposed of accordingly with above observations.

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(Vivek Kumar Singh,J.)

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December 16, 2025 Radhika

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Digitally signed by :- RADHIKA VISHWAKARMA High Court of Judicature at Allahabad

Smt. Fatima Nisha and Another v. State of U.P. and 5 Others

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Smt. Fatima Nisha and Another v. State of U.P. and 5 Others

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