# Faujiya Bano & Anr v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 1378
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-12
- **Case number:** Writ -C No. 1969 of 2024
- **Bench:** Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/faujiya-bano-anr-v-state-of-u-p-ors-51809
- **Pages:** 6

## Headnote

A. Civil Law - Constitution of India,1950Article
226-Indian
Penal
Code,1860Sections 498 & 504-Petitioners sought
protection
from
Respondent
No.4,
claiming threats and intereference in
their
marriage-Petitioner
no.1

was
previously married to Respondent no.4
under muslim rites, with two children
born out of that union-Respondent no. 4
allegedly issued a triple talaq and ousted
her in 2019-In 2023, Petitioner no.1
remarried petitioner no.2, also under
muslim rites, without obtaining a legal
divorce from Respondent no. 4 and this
marriage was registered-Respondent no.
4 contested the validity of Petitioner
no.1's second marriage, arguing that no
formal decree of divorce was obtained-A
police
report
was
lodged
against
Petitioner no. 2 for enticing petitioner
no.1 and her child-Held, second marriage
entered into without obtaining a formal
decree of divorce from the first spouse is
invalid, even under muslim personal lawThe petitioner(a muslim woman) failed to
produce evidence of a valid divorce(triple
talaq or khula) from her first husbandHence, the petitioners first marriage had
not been legally dissolved,the second
marriage
could
not
be
granted
protection, as it violated sections 494 and
495 IPC-The court declined to issue a
writ
of
mandamus
to
protect
the
petitioner's relationship.(Para 1 to 16)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

1378 INDIAN LAW REPORTS ALLAHABAD SERIES
filed by the petitioner essentially arising
out of the same root cause are pending
before this Court sitting at Allahabad.

24. The learned Senior Advocate
appearing
for
the
petitioner
lastly
submitted that instead of dismissing the
writ petition and giving a liberty to the
petitioner to file a fresh petition at
Allahabad, this Court should transmit the
record of the present case to Allahabad for
being decided there since the pleadings
have been exchange by the parties. None
of
the
learned Counsel
raised
any
objection against this submission of the
learned Counsel for the petitioner.

25. Clause 14 of the Uttar Pradesh
High Courts Amalgamation Order, 1948
inter alia provides that the Chief Justice
may in his discretion order that any case or
class of cases arising in the said areas shall
be heard at Allahabad.

26. Accordingly, this request of the
learned Counsel for the petitioner is
accepted. Let the matter be placed before
the Hon'ble Chief Justice for passing
appropriate order for transfer of this Writ
Petition to this Court sitting at Allahabad in
terms of Clause 14 of the Amalgamation
Order.
----------
(2024) 4 ILRA 1378
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.03.2024

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Writ -C No. 1969 of 2024

Faujiya Bano & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioners:
Sri Dharmendra Kumar

Counsel for the Respondents:
C.S.C.

A. Civil Law - Constitution of India,1950Article
226-Indian
Penal
Code,1860Sections 498 & 504-Petitioners sought
protection
from
Respondent
No.4,
claiming threats and intereference in
their
marriage-Petitioner
no.1

was
previously married to Respondent no.4
under muslim rites, with two children
born out of that union-Respondent no. 4
allegedly issued a triple talaq and ousted
her in 2019-In 2023, Petitioner no.1
remarried petitioner no.2, also under
muslim rites, without obtaining a legal
divorce from Respondent no. 4 and this
marriage was registered-Respondent no.
4 contested the validity of Petitioner
no.1's second marriage, arguing that no
formal decree of divorce was obtained-A
police
report
was
lodged
against
Petitioner no. 2 for enticing petitioner
no.1 and her child-Held, second marriage
entered into without obtaining a formal
decree of divorce from the first spouse is
invalid, even under muslim personal lawThe petitioner(a muslim woman) failed to
produce evidence of a valid divorce(triple
talaq or khula) from her first husbandHence, the petitioners first marriage had
not been legally dissolved,the second
marriage
could
not
be
granted
protection, as it violated sections 494 and
495 IPC-The court declined to issue a
writ
of
mandamus
to
protect
the
petitioner's relationship.(Para 1 to 16)

The writ petition is dismissed. (E-6)

List of Cases cited:

1. D.Velusamy Vs D.Patchajammal (2010) 10
SCC 469

2. Asha Devi & anr. Vs St. of U.P. & ors. Writ C
No. 18743 of 2020

(Delivered by Hon'ble Mrs. Renu Agarwal, J.)
4 All. Faujiya Bano & Anr. Vs. State of U.P. & Ors.
1379

1. Instant writ petition under Article
226 of the Constitution has been filed by
the petitioners with prayer for issuing writ,
order or direction in the nature of
mandamus
commanding/directing
the
respondent nos. 2 and 3 to secure the
security of life and property of the
petitioners from the respondent No.4.

2. Heard learned counsel for the
petitioners, Mr. Ashwani Kumar Tripathi,
learned Additional Chief Standing Counsel
for State respondents and perused the
record.

3. It is submitted by the learned
counsel for the petitioners that both the
petitioners
are
major
and
are
of
marriageable age and profess the same
religion. It is further submitted that
petitioner No.1 is legally wedded wife of
respondent No.4 and she belong to Muslim
community. The date of birth of petitioner
No. 1 is 01.02.1997 and the date of birth of
petitioner no. 2 is 01.01.1995, in support
thereof the petitioner No.1 has brought on
record copy Birth Certificate and petitioner
No.2 has brought on record copy of Adhar
Card respectively which are annexed as
Annexure No. 2 to the affidavit filed in
support of the writ petition. It is submitted
that petitioner No. 1 solemnized marriage
with respondent No.4 according to Muslim
Rites and Rituals. Thereafter, one daughter
and one son was born out of wedlock of
petitioner No.1 and 4. It is further
submitted that respondent No.4 started
illegal demand of money which was not
fulfilled by parents of petitioner No.1,
thereafter, in April 2019, respondent No. 4
gave Triple Talaq to petitioner No.1 and
ousted the petitioner No.1 from his house.
After four years of the Khula Talaq to the
petitioner
No.1,
she
solemnized
her
marriage with petitioner No.2 according to
Muslim Rites and Rituals. It is contended
that after solemnization of their marriage,
petitioners applied for registration of their
marriage before the Marriage Registration
Officer, under the provision of the Marriage
Registration Rules, 2017 and their marriage
was registered on 10.011.2023 and copy of
the marriage registration certificate is
annexed as Annexure No.3 to the petition.
It
is
further
contended
that
after
solemnization of the marriage of the
petitioners,
respondent
No.4
started
threatening
and
interfering
in
the
matrimonial life of petitioner No.1. Being
aggrieved with the alleged threatening,
petitioner No. 1 moved an application
through registered post to the Inspector
Incharge
of
Police
Station-Ghoorpur,
District-Prayagraj, however, no protection
was provided to the petitioners, hence, it is
prayed to issue an order or direction in the
nature of mandamus directing respondents
not to interfere in the peaceful marriage life
of the petitioners and to secure the personal
life and liberty of the petitioners from
respondent No. 4. and his associates.

4. Learned Additional Chief
Standing Counsel appearing on behalf of
the State submitted that petitioner No.1 has
not obtained decree of divorce from her
previous husband and NCR No. 123/2023
under Section 498, 504 I.P.C., police
station-Ghoorpur, Prayagraj has also been
lodged
by
respondent
No.4
against
petitioner No.2 which is still pending,
hence, protection cannot be granted to the
petitioner and opposed the prayer of the
petitioners.

5. In view of the order proposed to
be passed, there is no need to issue notice
to private respondent. With the consent of
learned counsel appearing for the parties,
this writ petition is being disposed of
1380 INDIAN LAW REPORTS ALLAHABAD SERIES
finally at this stage in terms of the Rules of
the Court.

6. I have heard the rival
submissions advanced on behalf of the
parties and perused the entire materials
brought on record.

7. Perusal of the record reveals that
date of birth of petitioner No.1 is 01.02.1997
as per her Birth Certificate, and date of birth
of petitioner No.2 as per his Adhar Card is
01.01.1995 and both the petitioners are major.
Petitioners have solemnized their marriage on
12.10.2023 according to Muslim Rites and
Rituals and their marriage has been registered
by the marriage registration office concerned,
however, no decree of divorce of petitioner
No.1 and respondent No.4 is brought on
record,
apparently,
petitioner
No.1
solemnized marriage with petitioner No.2
without obtaining any decree of divorce from
the concerned Court.

8. In the case of D.Velusamy Vs.
D. Patchajammal reported in (2010) 10
SCC 469, Hon'ble Apex Court while
considering the definitions given under
Section 2 of the Domestic Violence Act
dealt with the definition of "domestic
relationship", as a relationship in the nature
of marriage. It laid down the following
requisite criteria in the relationship in
the nature of marriage:-

"(a)
The
couple
must
hold
themselves out to society as being akin to
spouses.
(b) They must be of legal age to
marry.
(c) They must be otherwise
qualified to enter into a legal marriage,
including being unmarried.
(d) They must have voluntarily
cohabited and held themselves out to the
world as being akin to spouses for a
significant period of time."

9. In the case of Asha Devi and
Another vs. State of U.P. and Others
passed in Writ (C) No.18743 of 2020, the
Hon'ble Division Bench of this Court
formulated two questions as under:-

"(i) Whether the petitioners, who
claim themselves to be living together as
husband
and
wife;
can
be
granted
protection when the petitioner No.1 is
legally wedded wife of someone else and
has not taken divorce sofar ?
(ii)
Whether
protection
to
petitioners as husband and wife or as livein-relationship can be granted in exercise of
powers conferred under Article 226 of the
Constitution of India, when their living
together may constitute offences under
Sections 494/495 I.P.C. ?"

10. In the judgment of Asha Devi
(Supra), Hon'ble Division Bench of this
Court has discussed the judgment of
Hon'ble Apex Court in the case of "D.
Velusamy Vs. D. Patchaiammal", in
which the Hon'ble Apex court held that:-

"32. In our opinion not all live in
relationships will amount to a relationship
in the nature of marriage to get the benefit
of the Act of 2005. To get such benefit the
conditions mentioned by us above must be
satisfied, and this has to be proved by
evidence.
If a man has a `keep' whom he
maintains financially and uses mainly for
sexual purpose and/or as a servant it would
not, in our opinion, be a relationship in the
nature of marriage'."
(Emphasis supplied)
10. In the judgment of Asha Devi
(Supra), the Division Bench of this Court
4 All. Faujiya Bano & Anr. Vs. State of U.P. & Ors.
1381
on the basis of various judgments of High
Court held that following relationship are
not recognized or approved as live-inrelationship:-
"(a) Concubine can not maintain
relationship in the nature of marriage
vide paras 57 & 59 of the judgment of
Hon'ble Supreme Court in Indra Sarma
Vs. V. K. V. Sarma.
(b)
Polygamy,
that
is
a
relationship or practice of having more
than one wife or husband at the same
time, or a relationship by way of a
bigamous marriage that is marrying
someone while already married to another
and/or
maintaining
an
adulterous
relationship that is having voluntary
sexual intercourse between a married
person who is not one's husband or wife,
cannot be said to be a relationship in the
nature of marriage vide para 58 of
judgment in Indra Sarma's Case (supra) &
A Subhash Babu Vs. state of A.P.4 (paras
17 to 21, 27, 28 & 29). Polygamy is also
a criminal offence under Section 494 &
495 I.P.C., vide Shayara Bano Vs. Union
of India 5 (paras 299.3).
(c) Till a decree of divorce is
passed the marriage subsist. Any other
marriage during the subsistence of the
first marriage would constitute an offence
under Section 494 I.P.C. read with
Section 17 of the Hindu Marriage Act,
1955...........
(d) If both the persons are
otherwise not qualified to enter into a
legal
marriage
including
being
unmarried, vide D Velusamy Vs. D
Patchaiammal (supra) (para 31)."

11. In the judgment of Asha Devi
(Supra), Hon'ble Division Bench of this
Court has also discussed the judgment of
Hon'ble Apex Court in the case of
"Director of Settlement, A.P. Vs. M.R.
Apparao, in which the Hon'ble Apex court
has considered the High Court's power for
issuance of mandamus and held as under:-

"17.
.................
One
of
the
conditions for exercising power under
Article 226 for issuance of a mandamus is
that the Court must come to the conclusion
that the aggrieved person has a legal right,
which entitles him to any of the rights and
that such right has been infringed. In other
words, existence of a legal right of a citizen
and performance of any corresponding
legal duty by the State or any public
authority, could be enforced by issuance of
a writ of mandamus. "Mandamus" means a
command. It differs from the writs of
prohibition or certiorari in its demand for
some activity on the part of the body or
person to whom it is addressed. Mandamus
is a command issued to direct any person,
corporation,
inferior
Courts
or
Government, requiring him or them to do
some particular thing therein specified
which appertains to his or their office and
is in the nature of a public duty. A
mandamus is available against any public
authority including administrative and
local bodies, and it would lie to any person
who is under a duty imposed by statute or
by the common law to do a particular act.
In order to obtain a writ or order in the
nature of mandamus, the applicant has to
satisfy that he has a legal right to the
performance of a legal duty by the party
against whom the mandamus is sought and
such right must be subsisting on the date of
the petition. .................."

12. In the relationship of marriage
or in the nature of live-in-relationship there
must be two consenting adults human
beings. The concept of Gotra, Caste and
Religion is left a way back. No one has
right to interfere in the personal liberty of
1382 INDIAN LAW REPORTS ALLAHABAD SERIES
two adults, not even the parents to two
adults can interfere in their relationship,
but, the Right to Freedom or Right to
Personal Liberty is not an absolute or
unfettered right, it is qualified by some
reasonable restrictions also. The freedom of
one person extincts where the statutory
right of another person starts. Spouse have
statutory right to enjoy the company of his
or her counterpart and he/she cannot be
deprived of that right for the sake of
personal liberty and no such protection can
be granted to infringe statutory right of
another spouse, hence, the freedom of one
person cannot encroach or overweigh the
legal right of another person. If the
petitioners are already married and had
their spouse alive, he/she cannot be
permitted to enter into live-in-relationship
with third person without seeking divorce
from the earlier spouse. He/she first has to
obtain the decree of divorce from the court
of
competent
jurisdiction
before
solemnizing marriage of entering into livein-relationship out of their legal marriage.

13. In the instant case, both the
parties are Muslims by faith and marriage
of petitioner No.1 was first solemnized
with respondent No.4 according to Muslim
Rites and Rituals and one son and one
daughter was also born out of the wedlock
of petitioner No.1 and respondent No.4. It
is alleged that respondent No. 4 used to
beat petitioner No.1 and after giving Triple
Talaq to petitioner No.1, ousted her from
his house along with their minor son.
Thereafter, she came to her paternal house
along with minor son. Petitioner No.1 gave
Khula Talaq to respondent No. 4 in the year
2019 and since then she was resident at her
paternal house. After four years of the
alleged divorce petitioner No.1 solemnized
marriage with petitioner No.2, despite
being legally wedded to respondent No.4.
Furthermore, an N.C.R. has also been
lodged by respondent No. 4 against
petitioner No.2 under Section 498, 504
I.P.C., police station-Ghoorpur, Prayagraj
alleging therein that on 09.10.2023 at about
10:30 AM, petitioner No.2 enticed away
petitioner No.1 along with his minor son of
three years on the pretext of marriage.

14. The pleadings of the petition
does not disclose the date of divorce either
by Triple Talaq or by way of Khula Talaq.
Petitioner No.1 did not disclose the date on
which she returned to her paternal house
with her minor son. It is relevant to quote
hereinbelow
the
Section
2
of
The
Dissolution Of Muslim Marriages Act,
1939, which deals with the grounds for
decree for dissolution of marriage:-

" 2. Grounds for decree for
dissolution of marriage.?A woman married
under Muslim law shall be entitle to obtain
a decree for the dissolution of her marriage
on any one or more of the following
grounds, namely: ??
(i) that the whereabouts of the
husband have not been known for a period
of four years;
(ii) that the husband has neglected
or
has
failed
to
provide
for
her
maintenance for a period of two years;
(iii) that the husband has been
sentenced to imprisonment for a period of
seven years or upwards;
(iv) that the husband has failed to
perform, without reasonable cause, his
marital obligations for a period of three
years;
(v) that the husband was impotent
at the time of the marriage and continues to
be so;
(vi) that the husband has been
insane for a period of two years or is
suffering from a virulent venereal disease;
4 All. Hem Kant Vs. State of U.P. & Ors.
1383
(vii) that she, having been given in
marriage by her father or other guardian
before she attained the age of fifteen years,
repudiated the marriage before attaining
the age of eighteen years
: Provided that the marriage has
not been consummated;
(viii) that the husband treats her
with cruelty, that is to say, ?
(a) habitually assaults her or
makes her life miserable by cruelty of
conduct even if such conduct does not
amount to physical ill-treat
(b) associates with women of evil
repute or leads an infamous life, or
(c) attempts to force her to lead an
immoral life, or
(d) disposes of her property of
prevents her exercising her legal rights
over it, or
(e) obstructs her in the observance
of her religious profession or practice, or
(f) if he has more wives than one,
does not treat her equitably in accordance
with the injunctions of the Qoran;
(ix) on any other ground which is
recognized as valid for the dissolution of
marriages under muslim law :
Provided that ?
(a) no decree shall be passed on
ground (iii) until the sentence has become
final;
(b) a decree passed on ground (i)
shall not take effect for a period of six
months from the date of such decree, and
if the husband appears either in person
or through an authorized agent within
that period and satisfies the Court that he
is prepared to perform his conjugal
duties, the Court shall set aside the said
decree;
and
(c) before passing a decree on
ground (v) the Court shall, on application
by the husband, make an order requiring
the husband to satisfy the Court within a
period of one year from the date of such
order that he has ceased to be impotent,
and if the husband so satisfies the Court
within such period, no decree shall be
passed on the said ground"

15. While applying the principles
laid down in various pronouncements by
Hon'ble
the
Apex
Court,
it
gives
guidelines to the fact that couple must be
of legal age to marry and qualified to enter
into
legal
marriage
including
being
unmarried and they must be akin to spouse
for significant period of time. Petitioner
No.1 could have applied for dissolution of
her previous marriage on the ground
mentioned in the Dissolution Of Muslim
Marriages Act, 1939, however, she chose
to solemnize another marriage from
another person. Petitioner No.1 is still
legally wedded wife of respondent No.4
and she has not obtained any decree of
divorce.

16. In view of the discussions as
above, it is not considered desirable that
relationship of the petitioners be protected
in contravention of the statutory provisions
of law passed by legislature, hence, petition
has no force and is liable to be dismissed
and is dismissed accordingly.
----------
(2024) 4 ILRA 1383
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.03.2024

BEFORE

THE HON'BLE ALOK MATHUR, J.

Writ -C No. 2214 of 2024

Hem Kant ...Petitioner
Versus
State of U.P. & Ors. ...Respondents