# Gajala & Anr v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 1442
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-05
- **Case number:** Writ -C No. 6350 of 2024
- **Bench:** Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gajala-anr-v-state-of-u-p-ors-51711
- **Pages:** 6

## Headnote

A. Civil Law - Constitution of India,1950Article
226-Indian
Penal
Code,1860Sections
498,504-Petitioners
sought
protection from family members, claiming
threats
and
intereference
in
their
marriage-Petitioner no.1 was previously
married and had not obtained a divorcePetitioner
no.
2
began
a
live-in
relationship with petitioner no. 1 after
they met in Noida 2022 -The court that
petitioner
1
had
no
legal
right
to
protection while living in an adulterous
relationship without obtaining a divorcethe
court
emphasized
that
such
relationships in contravention of Islamic
law and the Indian Penal Code(sections
494,495) cannot be considered a live-in
relationship akin to marriage-The writ
petition was dismissed as the court found
no enforceable legal right in favor of the
petitioners for protection.(Para 1to 15)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

1442 INDIAN LAW REPORTS ALLAHABAD SERIES
amount of Rs.5,35,454/- was passed on
September
19,
2013.
However,
the
authority concerned refunded this amount
only on December 5, 2023. The stand taken
by the respondent authorities is that there is
no provision in the Indian Stamp Act,
1899 for payment of interest on refund of
excess stamp duty that has been collected
by the revenue. In light of the same,
counsel for the respondent submitted that
no interest is payable even if there is
lackadaisical approach by the authorities
in returning of the refund.

5. The stand of the revenue is
rejected outrightly as the State has no
power to hold on the money that it has
taken without any authority of law.
Article 265 of the Constitution of India
clearly provides that no tax can be
collected without authority of law and
any amount that has been collected is
dehors the law and is required to be
returned to the person concerned. As a
natural corollary, the time for which the
amount was illegally detained by the
Government,
is
required
to
be
compensated for by the Government by
way of payment of interest thereon. There
is
no
requirement
of
any
specific
provision for the payment of interest in
such circumstances. In light of the same,
I am of the view that the authority
concerned is required to pay interest for
the delay in refund.

6. Accordingly, the authority
concerned is directed to pay interest at
the rate of 5 per cent from October 19,
2013 (one month after passing of the
order directing the refund) till December
5, 2023 (when the refund was made). The
said amount should be paid by the
authority concerned within six weeks from
date.
7. With the above observations, the
writ petition is disposed of.
----------
(2024) 4 ILRA 1442
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.03.2024

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Writ -C No. 6350 of 2024

Gajala & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Umesh Chandra Prajapati

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 family members, claiming
threats
and
intereference
in
their
marriage-Petitioner no.1 was previously
married and had not obtained a divorcePetitioner
no.
2
began
a
live-in
relationship with petitioner no. 1 after
they met in Noida 2022 -The court that
petitioner
1
had
no
legal
right
to
protection while living in an adulterous
relationship without obtaining a divorcethe
court
emphasized
that
such
relationships in contravention of Islamic
law and the Indian Penal Code(sections
494,495) cannot be considered a live-in
relationship akin to marriage-The writ
petition was dismissed as the court found
no enforceable legal right in favor of the
petitioners for protection.(Para 1to 15)

The writ petition is dismissed. (E-6)

List of Cases cited:

1. Lata Singh Vs St. of U.P. & anr.. (2006) 5 SCC
475
4 All. Gajala & Anr. Vs. State of U.P. & Ors.
1443
2. Shafin Jahan Vs Asokan K.M. & ors. (2018)
16 SCC 368

3. Nandkumar & anr. Vs St. of Ker.(2018) 16
SCC 620

4. Kamini Devi Vs St. of U.P. Writ. C No. 11108
of 2020

5. Razia & anr. Vs St. of U.P. Writ C No. 27338
of 2023

6. Kiran Rawat & anr.. Vs St. of U.P.

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

8. Indra Sarma Vs V.K.V. Sharma (2013) 15 SCC
755

9. Asha Devi & anr. Vs State of U.P. & ors Writ
© No. 18743 of 2020

10. A Subhash Babu Vs St. of A.P.

11. Shayara Bano Vs U.O.I.

12. Lily Thomas & anr. Vs U.O.I. & ors.

13. Dir. of Settlement, A.P. Vs M.R. Apparao

14. Kalyan Singh Vs St.of U.P. (1962) AIR SC
1183

(Delivered by Hon'ble Mrs. Renu Agarwal, J.)

1. Heard learned counsel for the
petitioners, learned Standing Counsel for
the State and perused the record.

2. 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 the respondents not to
interfere in the peaceful married life of the
petitioners as husband and wife.

3. It is submitted by the learned
counsel for the petitioners that as per
aadhar card the date of birth of petitioner
No.1 is 03.01.1993 and she is aged about
31 years and the date of birth of the
petitioner No.2 as per his aadhar card is
07.09.2002 and he is aged about more than
21 years. It is submitted that petitioner no.1
was earlier married with one Shahrukh on
04.03.2014 and since the petitioner No. 1
was not able to conceive, she was thrown
out from her matrimonial house. Thereafter,
in the year 2022 when the petitioners No.1
was working in NOIDA, she met petitioner
No. 2 and since then they are living in
relationship. It is further submitted that the
parents of petitioner no.1 and her other
family members are interfering in their
peaceful
live-in-relationship.
The
petitioners apprehend danger to the life and
liberty from respondent No.4 and other
family members, therefore, petitioner no.1
moved an application, therefore present
petition moved by the petitioners for
issuance of mandamus.

4. On the other hand, learned
Standing Counsel submitted that petitioner
no.1 is already married to one Shahrukh,
she has not obtained any decree of divorce,
as prescribed under the personal law, from
her earlier husband and started living with
petitioner no.2 in adultery, therefore, their
relationship can not be protected by law.
Learned Standing Counsel has relied upon
the judgment of Apex Court in the case of
Kiran Rawat and Another Vs. State of
U.P. and judgment of the Division Bench of
this Court passed in the case of Asha Devi
and Another Vs. State of U.P. and 3
Others, and opposed the petition. It is also
submitted by the learned Standing Counsel
that no cause of action arose as no
application for protection has been moved
to the authorities in the instant matter.
Lastly it is submitted that mandamus
cannot be issued against private person,
1444 INDIAN LAW REPORTS ALLAHABAD SERIES
hence the prayer made in the writ petition
is opposed.

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

6. From the perusal of record it
transpires that both the petitioners are
major and as per aadhar card the date of
birth of petitioner No.1 is 03.01.1993 and
she is aged about 31 years and the date of
birth of the petitioner No.2 as per his
aadhar card is 07.09.2002 and he is aged
about more than 21 years. It is also
apparent from the record that petitioner
no.1 was earlier married to one Shahrukh
and leaving her earlier husband without
obtaining divorce, as prescribed under law,
she started living with petitioner no.2. In
the case of Kiran Rawat(Supra), the
Hon'ble Apex Court observed that:-

"21. However, in Muslim law no
recognition can be given to sex outside
marriage. "Zina" which has been defined
as any sexual intercourse except that
between husband and wife includes both
extramarital sex and premarital sex and is
often translated as fornication in English.
Such premarital sex is not permissible in
Islam.
In
fact
any
sexual,
lustful,
affectionate acts such as kissing, touching,
staring etc. are "Haram" in Islam before
marriage because these are considered
parts of "Zina" which may lead to actual
"Zina" itself. The punishment for such
offence according to Quran (chapter 24) is
hundred lashes for the unmarried male and
female who commit fornication together
with the punishment prescribed by the
"Sunnah" for the married male and female
that is stoning to death." It is observed that
in Muslim Law living-in-relationship is not
permitted."
7. In the case of Asha Devi(Supra),
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. ?"

8. 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)

9. In the judgment of Asha Devi
(Supra), the Division Bench of this Court
on the basis of various judgments of High
Court held that following relationship are
not recognized or approved as live-inrelationship:-
4 All. Gajala & Anr. Vs. State of U.P. & Ors.
1445
"(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 and the
person, inspite of his conversion to some
other religion would be liable to be
prosecuted for the offence of bigamy, vide
Lily Thomas and another Vs. Union of
India and others6 (Para 35). In para 38 of
the aforesaid judgment, Hon'ble Supreme
Court observed as under:-
"38. Religion is a matter of faith
stemming from the depth of the heart and
mind. Religion is a belief which binds the
spiritual nature of man to a super-natural
being; it is an object of conscientious
devotion, faith and pietism. Devotion in its
fullest sense is a consecration and denotes
an act of worship. Faith in the strict sense
constitutes firm reliance on the truth of
religious doctrines in every system of
religion. Religion, faith or devotion are not
easily interchangeable. If the person feigns
to have adopted another religion just for
some worldly gain or benefit, it would be
religious bigotry. Looked at from this angle,
a person who mockingly adopts another
religion where plurality of marriage is
permitted so as to renounce the previous
marriage and desert the wife, he cannot be
permitted
to
take
advantage of his
exploitation as religion is not a commodity
to be exploited. The institution of marriage
under every personal law is a sacred
institution. Under Hindu Law, Marriage is
a sacrament. Both have to be preserved."
(Emphasis supplied)
(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)."

10. 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
1446 INDIAN LAW REPORTS ALLAHABAD SERIES
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. .................."

11. From the factual matrix of the
case it is apparent that petitioner no.1 is
legally wedded wife of Shahrukh. She has
not obtained any decree of divorce as
prescribed in law. She is living with
petitioner no.2 in contravention of the
provisions
of
Islamic
Law(Shariat),
wherein legally wedded wife can not go out
side marriage and this act of Muslim
women is defined as Zina which is Haram
(prohibited) . If we go to the criminality of
the act of petitioner no.1 she may be
prosecuted for the offence under section
494 and 495 IPC, as such relationship is not
covered within the phrase of live-inrelationship or relationship in the nature of
marriage.

12. Present writ petition has been
filed by the petitioners for protection from
interference by respondent no.4, who is
father of petitioner no.1 and others in their
peaceful living as husband and wife. If
such a protection is granted, it may amount
to
grant
the
protection
against
the
commission of offence under section 494
and 495 IPC.

13. It is settled law that writ of
mandamus can be issued only if the
petitioners
has
legal
right
to
the
performance of legal duty by the party
against whom the mandamus is sought. The
Hon'ble Apex Court in the case of "Kalyan
Singh Vs. State of U.P., AIR 1962 SC
1183 held as under:-

"Applying
the
principles
of
issuance of writ of mandamus on the facts
of the present case, we find that the
petitioners
have
no
legal
right
for
protection on the facts of the present case
inasmuch as such the protection as being
asked, may amount to protection against
commission of offence under Section
494/495 I.P.C. 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."

14. In the present case petitioner
no.1 is Muslim by religion and she has not
moved any application to the authority
concerned for conversion of her religion
under sections 8 and 9 of the Conversion
Act. Hence petitioner no.1 is living in
relationship with petitioner no.2 without
obtaining divorce from her husband, that
constitute an offence under sections 494
and 495 IPC and also without complying
the provisions of sections 8 & 9 of the
Conversion Act. Hence such type of
criminal act cannot be supported and
protected by the Court. Therefore, the
petition has no substance and is liable to be
dismissed
4 All. Executive Committee Maulana Mohd. Ali Jauhar Trust Vs. State of U.P. & Ors.
1447
15. Accordingly, the petition is
dismissed.
----------
(2024) 4 ILRA 1447
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.03.2024

BEFORE

THE HON'BLE MANOJ KUMAR GUPTA, J.
THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-C No. 7022 of 2023

Executive Committee Maulana Mohd. Ali
Jauhar Trust ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Imran Ullah, Sri Mohd. Khalid, Sri Vineet
Vikram, Sri Kunal Shah, Sri Amit Saxena (Sr.
Adv.)

Counsel for the Respondents:
C.S.C.

A. Civil Law - Constitution of India,1950Article 226-The land and building for the
institute were leased to the Trust in 2015
for 33 years at nominal rates, with the
purpose
of
promoting
educational
development for minority communities-The
Trust later established the Rampur Public
school
on
the
premises-The
lease
arrangement resulted from misuse of power
by Mohamammad Azam Khan, the then
Cabinet Minister and the trust's chairman,
causing significant financial loss to the
state-The institute was allegedly used for
private benefits rather than the intended
public purpose-The High Court analyzed the
legality of the lease, procedural lapses, and
whether
the
revocation
of
the
lease
followed due process-The court ruled that
alleged violations of natural justice must be
weighed against the facts of the case, such
violations may not render government
actions invalid-Such transactions are void ab
initio as they violate public trust- allocation
of public property through non-transparent
processes, without competitive bidding,
adherence to financial norms, is void.(Para 1
to 112)

The writ petition is dismissed. (E-6)

List of Cases cited:

1. A.K. Kraipak Vs U.O.I.(1969) 2 SCC 262

2. Board of Control for Cricket in India Vs
Cricket Assn of Bih.(2015) 2 SCC 251

3. R.Sai Bharathi Vs. J. Jayalalitha & ors.(2004)
2 SCC 9

4. Ori. Olympic Assn thru Gen.Secy. Vs St. of
Ori. & anr.(2017) 14 SCC 22

5. A.C. Muthiah Vs Board of Control for Cricket
in India & ors.(2011) 6 SCC 617

6. Ridge Vs Baldwin (1964) AC 40

7. S.L.Kapoor Vs Jagmohan(1980) 4 SCC 379

8. Malloch Vs Aberdeen Corp. (1971) 2 WLR
1578

9. Glynn Vs Keele Univ. (1971) 1 WLR 487

10.
Cinnamond
Vs
British
Airports
Authority(1980) 1 WLR 582

11. Straughton, L.J., in R. Vs Ealing Magistrates
court ex P Fannaran (1996) 8 Admn LR
351(358)

12. Dharampal Satyapal Ltd. Vs Deputy Commr
of Central Excise Gauhati & ors.(2015) 8 SCC
519

13. Bishambhar Prasad vs Arfat Petrochemicals
Pvt. Ltd & ors.

14. Mohinder Singh Gill Vs The Chief Election
Officer

15. S.L. Kapoor Vs Jgmohan

16. K. Balasubramanian (Ex. Capt.) Vs St. of
TN(1991) 2 SCC 708