# Prateeksha & Anr v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2024) 3 ILRA 2074
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-02-22
- **Case number:** Writ-C No. 41207 of 2023
- **Bench:** Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prateeksha-anr-v-state-of-u-p-ors-opp-parties-51628
- **Pages:** 7

## Headnote

Live-in Relationship - Hindu Marriage Act,
1955 - Sections 5, 12 - Protection of
Women from Domestic Violence Act, 2005
- Constitution Of India,1950 - Article 226-

Eligibility for Live-in Relationship - Marriageable
Age - Protection of Relationship

The petitioners, aged 19 (petitioner No. 1,
female, born 29.05.2004) and 19 (petitioner No.
2, male, born 09.03.2004), sought a writ of
mandamus to prevent interference in their livein relationship by respondent No. 5 (father of
petitioner No. 1) and for police protection. They
claimed to be living together since August 2022
but were not married. The petitioner No. 2,
though a major, was below the marriageable
age of 21 under Section 5(iii) of the Hindu
Marriage Act, 1955. Held: A live-in relationship
must satisfy conditions akin to a common law
marriage, including both parties being of legal
age to marry, as per D. Velusamy Vs D.
Patchaiammal (2010) 10 SCC 469. Since
petitioner No. 2 was not of marriageable age
(21 years), their relationship did not qualify as a
"relationship in the nature of marriage" under
the 2005 Act. No evidence was provided to
show the relationship's permanence, such as
joint property or bank accounts, nor was there
any intent to marry. The judgments in Deepika
Vs St. of U.P. (2013) ADJ 534 and Nandkumar
Vs St. of Kerala (Criminal Appeal No. 597 of
2018) were inapplicable, as they did not address
the requirement of marriageable age for live-in
relationships. The Division Bench ruling in Asha
Devi Vs St. of U.P. (Writ C No. 18743 of 2020)
clarified
that
relationships
not
meeting
marriage-like criteria, including legal age, are
not protected. The court, under Article 226,
cannot issue a mandamus to protect a
relationship lacking legal basis, as per Director
of Settlement, A.P. Vs M.R. Apparao.

Writ petition was dismissed.

Case Law Cited:

## Text

2074 INDIAN LAW REPORTS ALLAHABAD SERIES
the
Enforcement
Directorate
for
compliance.
----------
(2024) 3 ILRA 2074
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.02.2024

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Writ-C No. 41207 of 2023

Prateeksha & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Petitioners:
Sri Rahul Kumar Jadaun, Sri Shobhit Pratap
Singh

Counsel for the Opp. Parties:
C.S.C.

Live-in Relationship - Hindu Marriage Act,
1955 - Sections 5, 12 - Protection of
Women from Domestic Violence Act, 2005
- Constitution Of India,1950 - Article 226-

Eligibility for Live-in Relationship - Marriageable
Age - Protection of Relationship

The petitioners, aged 19 (petitioner No. 1,
female, born 29.05.2004) and 19 (petitioner No.
2, male, born 09.03.2004), sought a writ of
mandamus to prevent interference in their livein relationship by respondent No. 5 (father of
petitioner No. 1) and for police protection. They
claimed to be living together since August 2022
but were not married. The petitioner No. 2,
though a major, was below the marriageable
age of 21 under Section 5(iii) of the Hindu
Marriage Act, 1955. Held: A live-in relationship
must satisfy conditions akin to a common law
marriage, including both parties being of legal
age to marry, as per D. Velusamy Vs D.
Patchaiammal (2010) 10 SCC 469. Since
petitioner No. 2 was not of marriageable age
(21 years), their relationship did not qualify as a
"relationship in the nature of marriage" under
the 2005 Act. No evidence was provided to
show the relationship's permanence, such as
joint property or bank accounts, nor was there
any intent to marry. The judgments in Deepika
Vs St. of U.P. (2013) ADJ 534 and Nandkumar
Vs St. of Kerala (Criminal Appeal No. 597 of
2018) were inapplicable, as they did not address
the requirement of marriageable age for live-in
relationships. The Division Bench ruling in Asha
Devi Vs St. of U.P. (Writ C No. 18743 of 2020)
clarified
that
relationships
not
meeting
marriage-like criteria, including legal age, are
not protected. The court, under Article 226,
cannot issue a mandamus to protect a
relationship lacking legal basis, as per Director
of Settlement, A.P. Vs M.R. Apparao.

Writ petition was dismissed.

Case Law Cited:

1. Deepika Vs St. of U.P., (2013) ADJ 534

2. Nandkumar Vs St. of Kerala, Criminal Appeal
No. 597 of 2018

3. Smt. Saloni Yadav Vs St. of U.P., Criminal
Misc. Writ Petition No. 7996 of 2023

4. D. Velusamy Vs D. Patchaiammal, (2010) 10
SCC 469

5. Lata Singh Vs St. of U.P., (2006) 5 SCC 475

6. Asha Devi Vs St. of U.P., Writ C No. 18743 of
2020

7. Indra Sarma Vs VSK.VS Sarma, (2013) 15
SCC 755

8. Subhash Babu Vs St. of A.P., (2011) 7 SCC
616

9. Shayara Bano Vs U.O.I., (2017) 9 SCC 1

10. Lily Thomas Vs U.O.I., (2000) 6 SCC 224

11. Director of Settlement, A.P. Vs M.R.
Apparao, (2002) 4 SCC 638

(Delivered by Hon'ble Mrs. Renu Agarwal,
J.)
3 All. Prateeksha & Anr. Vs. State of U.P. & Ors.
2075

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 directing the respondents not to
interfere in the peaceful married life of the
petitioners as husband and wife and to
direct the respondents No. 2 and 3 to
provide protection and security to the
petitioners.

2. It is submitted that the petitioner
No.1 is major aged about 19 years. As per
her high school certificate the date of birth
of the petitioner No. 1 is 29.05.2004. It is
also submitted that the petitioner No. 1 is
unmarried and she fell in love with
petitioner No. 2 who is aged about 19
years. It is also submitted that as per high
school certificate the date of birth of
petitioner No. 2 is 09.03.2004. It is also
submitted that the petitioners are living in
relationship since August, 2022. It is also
submitted that the respondent No. 5 who is
the father of the petitioner No. 1 is not
happy with the choice of the petitioner No.
1 and has been constantly harassing and
threatening the petitioner to their lives. It is
also submitted that the petitioners moved
an application to the Commissioner of
Police, Kanpur Nagar seeking protection to
their lives from respondent No. 5, however,
no protection has been provided to the
petitioners.

3. In support of the contention,
learned counsel for the petitioners has
relied upon the judgment of Supreme Court
passed in the case of Deepika and another
Vs. State of U.P. and others (2013) ADJ
534 wherein it was held that "Where a boy
and girl are major and they are living with
their free will then nobody including their
parents have any right to interfere with
living together." Reliance is also placed on
the judgment of Supreme Court in
Nandkumar and another Vs. State of
Kerala and others Criminal Appeal No.
597 of 2018 wherein it was held that
"insofar as the marriage of appellant No. 1
who was less than 21 years of age on the
date of marriage was not of marriageable
age with girl is concerned, it cannot be said
that merely because the appellant No. 1
was less than 21 years of age, marriage
between the parties is null and void."
Reliance is also placed on the judgment of
this Court in the case of Smt. Saloni Yadav
and another Vs. State of U.P. and other
Criminal Misc. Writ Petition No. 7996 of
2023 .

4. Learned Standing Counsel on the
other hand submitted that the petitioner No.
1 has produced her high school certificate
wherein her date of birth is mentioned as
29.05.2004 and the date of birth of
petitioner No. 2 as per his high school
certificate
is
09.03.2004.
It
is
also
submitted that the petitioner No.2 is a
major for all purposes other than marriage
as prescribed by the Hindu Law. It is also
submitted that as per their avernment made
in the writ petition, the petitioners are
living in relationship since August, 2022. It
is also submitted that the petitioner No. 2
does not satisfy the eligibility criteria
prescribed for a person to be in a live in
relationship. Learned Standing Counsel has
relied upon a judgment of a Division Bench
of this Court passed in the case of Asha
Devi and another Vs. State of U.P. Writ C
No. 18743 of 2020 to contend that the
terms of live in relationship are the same as
of marriage, hence, the prayer made in the
writ petition is opposed.

5. I have heard the rival submissions
advanced at the Bar and perused the record.
2076 INDIAN LAW REPORTS ALLAHABAD SERIES

6. From the perusal of record it
transpires that both the petitioners were
major aged about 18 years in August, 2022
when they decided to live in relationship.
Till date though the petitioner No. 2 is a
major but not of marriageable age.

7. Learned counsel for the petitioners
relied upon the judgment of Supreme Court
in the case of Deepika and another Vs.
State of U.P. and others (2013) ADJ 534
wherein it was held that "Where a boy and
girl are major and they are living with their
free will then nobody including their
parents have any right to interfere with
living together" The case relied upon by
the learned counsel for the petitioners is not
applicable to the facts of this case as as in
Deepika (supra) the question whether the
boy and girl should be of marriageable age
or not was not discussed. Learned counsel
for the petitioners relied upon the judgment
of
Supreme
Court
in
the
case
of
Nandkumar and another Vs. State of
Kerala and others Criminal Appeal No.
597 of 2018. In the above mentioned case,
the girls was of 19 years and therefore was
fount competent to enter into wedlock.
Father of the girls filed habeas corpus
petition being Writ Petition Criminal No.
149 of 2017 in the High Court of Kerala
that ever since 10.04.2017 his daughter was
missing and is in illegal custody of
appellant No.1. The girl was produced in
court on 28.04.2017. Supreme Court held
that as the girls is 19 years of age and
competent to marry as the marriageable age
of female is 18 years, hence, she cannot be
given custody of her father or anyone else
and the Court set her free of her on will.
The Supreme Court held that insofar as the
marriage of appellant No. 1 who was less
than 21 years of age on the date of marriage
was not of marriageable age with girls is
concerned, it cannot be said that merely
because the appellant No. 1 was less than
21 years of age, marriage between the
parties is null and void. ....... marriage is
not void marriage under the Hindu
Marriage Act, 1955 and as per the
provisions of Section 12 which can be
attracted in this case at the most the
marriage would be voidable marriage.
Sections 5 and 12 of the Hindu Marriage
Act, 1955 is reproduced below for ready
reference;

"5.Conditions
for
a
Hindu
marriage- A Marriage may be solemnized
between an two Hindus, if the following
conditions are fulfilled, namely-

xxxx

(iii)
the
bridegroom
has
completed the age of twenty one years and
the bride, the age of eighteen years at the
time of the marriage:

12. Voidable marriages.- (1) Any
marriage solemnized, whether before or
after the commencement of this Act, shall
be voidable and may be annulled by a
decree of nullity on any of the following
grounds namely;-

1(a) that the marriage has not
been consummated owing to the impotence
of the respondent; or

(b) that the marriage is in
contravention of the condition specified in
clause (ii) of section 5 ; or

(c) that the consent of the
petitioner, or where the consent of the
guardian in marriage of the petitioner was
required under section 5 as it stood
immediately before the commencement of
the Child Marriage Restraint (Amendment)
Act, that 1978 (2 of 1978), the consent of
such guardian was obtained by force or by
fraud as to the nature of the ceremony or as
to any material fact or circumstances
concerning the respondent; or
3 All. Prateeksha & Anr. Vs. State of U.P. & Ors.
2077

(d) that the respondent was at the
time of the marriage pregnant by some
person other than the petitioner."

8. Supreme Court decided the custody
of the girl and set aside the order of High
Court. Supreme Court also held the rights
of parties living together and also the fact
that the marriage is a voidable marriage if
any of the parties is not of marriageable
age.
The
matter
of
protection
of
relationship was not in issue before the
Supreme Court in the instant case, hence,
no benefit of this case law shall be given to
this case.

9. Learned counsel for the petitioners
has also relied upon the judgment of this
Court in the case of Smt. Saloni Yadav and
another Vs. State of U.P. and other
Criminal Misc. Writ Petition No. 7996 of
2023, the case relied upon is not applicable
to the facts of the present case as the
petitioners moved to the High Court with
the prayer to quash the FIR lodged on
30.04.2023 and the Division Bench of this
Court refused to indulge in the case on the
ground that the petitioners are live in
relationship and one of the party is minor.

10. Supreme Court in the case of
D.Velusamy Vs. D. Patchaimmal 2010
(10) SCC 469 rejected the claim of the
respondent for maintenance under Section
125 Cr.P.C as the wife after holding that
she
had
not married
the
appellant,
therefore, it cannot be said that she is a
divorced wife. The Apex Court considered
the live in relationship from the point of
view of Protection of Women from
Domestic
Violence Act,
2005
while
considering the contention of aggrieved
person as provided under Section 2 (a),
Section 2 (f) and other relevant provisions
in view of the term used in Section 2(f) " or
through a relationship in the nature of
marriage" it was observed that certain
conditions are to be fulfilled and one of the
said conditions was that they must be of
legal age to marry.

"31. In our opinion a relationship
in the nature of marriage' is akin to a
common law marriage. Common law
marriages require that although not being
formally married:-

(a)
The
couple
must
hold
themselves out to society as being aking 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.

(see 'Common Law Marriage' in
Wikipedia on Google) In our opinion a
'relationship in the nature of marriage'
under the 2005 Act must also fulfill the
above requirements, and in addition the
parties must have lived together in a
'shared household' as defined in Section
2(s) of the Act. Merely spending weekends
together or a one night stand would not
make it a ' domestic relationship'

32. In our opinion not all live in
relationship will amount to a relationship
in the nature of marriage to get the benefit
of 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 used mainly for
sexual purpose and / or as a servant it
would not, in our opinion be a relationship
in the nature of marriage.
2078 INDIAN LAW REPORTS ALLAHABAD SERIES

33. No doubt the view we are
taking would exclude many women who
have had a live in relationshio from the
benefit of 2005 Act, but then it is not for
this Court to legislate or amend the law.
Parliament
has
used
the
expression
'relationship in the nature of marriage' and
not ' live in relationship'. The Court in the
grab of interpretation cannot change the
language of the statute."

11. The abovequoted paragraph
clearly reflects that Hon'ble Supreme Court
is of the opinion that while live in
relationship, the relationship should be in
the nature of marriage.

12. In Lata Singh Vs. State of U.P
and another 2006 (5) SCC 475, Supreme
Court held that a live in relationship
between
two
consenting
adults
of
heterogenic sex does not amount to any
offence in the case at hand the boy has not
completed the age of 21 years, therefore,
not being of marriageable age, one cannot
be permitted to be in such relationship.

13. 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. ?"

14. 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:-

"(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
3 All. Prateeksha & Anr. Vs. State of U.P. & Ors.
2079
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)."

15. 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. .................."

16. In the guidelines provided by the
Supreme Court in various case laws,
relationship should be of such nature which
is akin to marriage. Section 5 of the Hindu
Marriage Act provides that girl should be of
18 years of age and the boy should be of 21
years of age at the time of marriage to
solemnize marriage under the Hindu
Marriage Act.

17. In the instant case the petitioner
No. 2 is not of marriageable age. The
petitioners have not brought on record any
documents to show that their relationship is
in the nature of marriage; no statement of
joint
property
is
disclosed
in
their
2080 INDIAN LAW REPORTS ALLAHABAD SERIES
application, no joint holding of any bank
account is disclosed though they claim to
be living in relationship since August,
2022. The petitioners does not even desire
to get married in future as no application
for marriage is moved by the petitioners
before the authorities concerned so far.
Petitioners have not produced any evidence
to show that their relationship is of a
permanent nature.

18. Petitioner No. 2 is still a student
of final year of polytechnic court as
disclosed in paragraph-7 of the writ
petition.

19. Hence, in view of the foregoing
discussions, the court is not inclined to
exercise its extraordinary power under
Article 226 of the Constitution and to
command to the authorities to provide
protection to the relationship of the
petitioners.

20. The petition lacks merits and is
accordingly dismissed.
----------
(2024) 3 ILRA 2080
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.03.2024

BEFORE

THE HON'BLE JASPREET SINGH, J.

Writ-C No. 1001289 of 2014
alongwith other connected cases

Pradeep Kumar ...Applicant
Versus
The Co Operative Tribunal U.P. & Ors.
 ...Opp. Parties

Counsel for the Applicant:
Anupras Singh, Akshay Agarwal, Anupras Singh
Counsel for the Opp. Parties:
C.S.C., Ausaf Ahmad Khan, Aushaq Ahmad
Khan,
Ganga
Singh,
Pushkar
Baghel,
Raghvendra Singh, Somesh Tripathi

Civil Law - U.P. Co-operative Societies Act,
1965 - Sections 28, 29, 35 & 70 -
Constitution Of India,1950 - Article 226 -
Cancellation of Allotment and Membership -
Cooperative
Tribunal
-
Writ
Petitions
-
Cancellation of allotments and memberships of
original allottees by Jivan Bima Rashtriya
Sahkari Avas Samiti Ltd. for default in payment
of escalated flat costs upheld. Society issued
multiple demand notices and reminders (dated
05.04.2004,
24.06.2004,
19.07.2004,
06.08.2004) to original allottees, who failed to
comply, leading to cancellation by Administrator
and
subsequent
ratification
by
elected
Committee of Management on 15.05.2005.
Dahiya Committee report on cost escalation,
approved by Assistant Housing Commissioner,
binding as 100 out of 120 members complied.
Administrator's authority to cancel allotments for
default, a day-to-day administrative function,
valid
under
Section
29(6);
subsequent
ratification by elected Committee cured any
irregularity.
Original
allottees'
failure
to
challenge
membership
termination
or
subsequent allottees' membership, coupled with
acceptance of refunded share money, bars their
claim. Tribunal's findings of inadequate notice
and non-binding Dahiya Committee report
perverse, ignoring evidence of repeated notices
and majority compliance. Impugned orders
dated 27.01.2014 by Cooperative Tribunal and
arbitral awards set aside for misappreciation of
facts and material. (Paras 34-49, 50-93, 94-104)

Writ Petitions Allowed.

Case Law Cited:

1. Maharashtra St. Mining Corporation Vs Sunil
(2006) 5 SCC 96 (Paras 90-91)

2. Jithendernath Vs Jubilee Hills Coop. House
Building Society (2006) 10 SCC 96 (Para 103)

3. Mayurdhwaj Cooperative Group Housing
Society
Ltd.
Vs
Presiding
Officer,
Delhi
Cooperative Tribunal (1998) 6 SCC 39 (Para 46)