# Smt. Asha Devi & Anr v. State of U.P. & Ors

- **Citation:** (2021) 8 ILRA 911
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-01
- **Case number:** Writ C No. 18743 of 2020
- **Bench:** Surya Prakash Kesarwani, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-asha-devi-anr-v-state-of-u-p-ors-46172
- **Pages:** 10

## Headnote

A. Constitution of India - Art. 226 - Writ of
Mandamus - Bigamy - Petitioner guilty of
bigamy cannot be granted protection by
court under Article 226 from interference
by others in their living as husband and
wife - writ of mandamus cannot be issued
contrary to law or to defeat a statutory
provision including penal provision (Para
18)
B. Criminal Law - Indian Penal Code,1860
- Section 494 - Marrying again during
lifetime of husband or wife - Hindu
Marriage
Act,1955
-
Section.
17
-
Punishment of bigamy - Till a decree of
divorce is passed 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 (Para 21)
C. Marriage - relationship in the nature of
marriage - de facto relationship, marriage-
912 INDIAN LAW REPORTS ALLAHABAD SERIES
like
relationship,
cohabitation,
couple
relationship,
meretricious
relationship
(now
known
as
committed
intimate
relationship - Live-in-relationship - live-in
relationship
between
two
consenting
adults of heterosexual sex does not
amount to any offence even though it may
be perceived as immoral - Relationship
which
are
not
live-in-relationship
or
relationship in the nature of marriage -
Concubine, Polygamy, Bigamy
Writ petition filed by petitioners for protection
from interference by others in their living as
husband and wife - Held - Once the petitioner
No.1 is a married woman being wife of one
Mahesh
Chandra,
the
act
of
petitioners
particularly the petitioner No.2, may constitute
an offence under Sections 494/495 I.P.C. - Such
a relationship does not fall within the phrase
"live-in-relationship" or "relationship in the
nature of marriage" - If the protection as prayed
is granted, it may amount to grant protection
against commission of offences under Sections
494/495 I.P.C (Para 21)
Dismissed. (E-4)
List of Cases cited :

## Text

8 All. Smt. Asha Devi & Anr. Vs. State of U.P. & Ors.
911
aside a judgment of acquittal in a case
where two views are possible, though the
view of the appellate court may be the more
probable one. While dealing with a
judgment of acquittal, the appellate court
has to consider the entire evidence on
record, so as to arrive at a finding as to
whether the views of the trial court were
perverse or otherwise unsustainable. The
appellate court is entitled to consider
whether in arriving at a finding of fact, the
trial court had failed to take into
consideration admissible evidence and/or
had taken into consideration the evidence
brought on record contrary to law".

14. In Dilawar Singh v. State of
Haryana, (2015) 1 SCC 737, the Supreme
Court reiterated the same in paragraph no.
36 as under :

"36. The court of appeal would
not ordinarily interfere with the order of
acquittal unless the approach is vitiated by
manifest illegality. In an appeal against
acquittal, this Court will not interfere with
an order of acquittal merely because on the
evaluation of the evidence, a different
plausible view may arise and views taken
by the courts below is not correct. In other
words, this Court must come to the
conclusion that the views taken by the
learned courts below, while acquitting,
cannot be the views of a reasonable person
on the material on record.

15. Considering the above legal
position and factual aspects of the case, this
Court is of the view that findings of
acquittal given by the trial court is justified
and the appeal is liable to be dismissed.

16. Accordingly, this criminal appeal
is hereby dismissed.
----------
(2021)08ILR A911
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.12.2020

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ C No. 18743 of 2020

Smt. Asha Devi & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sheetala Prasad Pandey

Counsel for the Respondents:
C.S.C.

A. Constitution of India - Art. 226 - Writ of
Mandamus - Bigamy - Petitioner guilty of
bigamy cannot be granted protection by
court under Article 226 from interference
by others in their living as husband and
wife - writ of mandamus cannot be issued
contrary to law or to defeat a statutory
provision including penal provision (Para
18)
B. Criminal Law - Indian Penal Code,1860
- Section 494 - Marrying again during
lifetime of husband or wife - Hindu
Marriage
Act,1955
-
Section.
17
-
Punishment of bigamy - Till a decree of
divorce is passed 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 (Para 21)
C. Marriage - relationship in the nature of
marriage - de facto relationship, marriage-
912 INDIAN LAW REPORTS ALLAHABAD SERIES
like
relationship,
cohabitation,
couple
relationship,
meretricious
relationship
(now
known
as
committed
intimate
relationship - Live-in-relationship - live-in
relationship
between
two
consenting
adults of heterosexual sex does not
amount to any offence even though it may
be perceived as immoral - Relationship
which
are
not
live-in-relationship
or
relationship in the nature of marriage -
Concubine, Polygamy, Bigamy
Writ petition filed by petitioners for protection
from interference by others in their living as
husband and wife - Held - Once the petitioner
No.1 is a married woman being wife of one
Mahesh
Chandra,
the
act
of
petitioners
particularly the petitioner No.2, may constitute
an offence under Sections 494/495 I.P.C. - Such
a relationship does not fall within the phrase
"live-in-relationship" or "relationship in the
nature of marriage" - If the protection as prayed
is granted, it may amount to grant protection
against commission of offences under Sections
494/495 I.P.C (Para 21)
Dismissed. (E-4)
List of Cases cited :
1. Lata Singh Vs St.of U.P. (2006)5 SCC 475

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

3. D. Velusamy Vs D Patchaiammal (2010) 10
SCC 469

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

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

6. Lily Thomas & anr. U.O.I. & ors. (2000)6 SCC
224

7. S. Khushboo Vs Kanniammal (2010)5 SCC
600

8. Proprietary Articles Trade Association Vs
Attorney General for Canada AIR 1931 PC 94

9. Thomas Dana Vs St. of Pun. AIR 1959 SC 375
10. Jawala Ram & ors. Vs The State of Pepsu
(now Punjab) & ors. AIR 1962 SC 1246

11. Standard Chartered Bank & ors. Vs
Directorate of Enforcement & ors. AIR 2006 SC
1301

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

13. Kalyan Singh Vs St. of U.P. AIR 1962 SC
1183

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Dr. Yogendra Kumar Srivastava, J.)

1. This writ petition has been filed
praying for the following reliefs:-

(i) Issue a writ, order or direction
in the nature of mandamus commanding
and directing the respondents not to harass
or take any coercive action against the
petitioners.

(ii) Issue any other writ, order or
direction which this Hon'ble Court may
deem fit and proper under the facts and
circumstances of the case.

(iii) Award cost of the petition to
the petitioners.

Submissions

2. Learned counsel for the petitioners
submits that the petitioners are living as
husband and wife and both are major and
therefore protection may be granted to
them so that the respondent no. 4, the father
of the petitioner no. 1, may not harass the
petitioners.
He
submits
that
a
representation
dated
17.09.2020
was
submitted by the petitioner no. 1 before the
respondent no.2 but no action has been
taken so far.
8 All. Smt. Asha Devi & Anr. Vs. State of U.P. & Ors.
913

3. Learned Standing Counsel submits
that the petitioner no. 2 has taken away the
petitioner no. 1 who appears to be duly
married wife of one Sri Mahesh Chandra
and thus the petitioner no. 2 is an offender
and therefore no protection can be granted
to the petitioner.

4. We have carefully considered the
submissions of learned counsel for the
parties.

Facts

5. In paragraph nos. 4, 5 and 6 of the
writ petition, it has been stated as under :-

4. That the petitioner no. 2 is also
major aged about 23 years old and his date
of birth is 01.01.1997 according to Aadhar
Card, the petitioner no. 1 is educated only
Class 5th she has no any age proof except
Aadhar Card.

5. That the petitioner no. 1 was
married earlier with one Mahesh Chandra
but who is habitual drinker and assaulted
her maliciously therefore she left his home
and came at her parental house.

6. That at present the petitioner
no. 1 is living in relation with petitioner
no.2 from 24.8.2020 but the father of the
petitioner no. 1 (respondent no. 4) is very
much annoyed and given threat to kill her.

6. It has been stated in paragraph no.
8 of the writ petition that the petitioner no.
1
has
filed
a
representation
dated
17.09.2020 before the respondent no. 2
which is reproduced below :-

Lksok esa]

Jheku iqfyl v/kh{kd egksn;]

gkFkjlA

egksn;]

fouez fuosnu gS fd izkfFkZuh vk'kk iq=h jke
ckcw fu0 fctyh?kj lluh] Fkkuk lkluh ftyk
gkFkjl]tks fd vjfoUn iq= lwjtkHkkuk fuoklh
u;k fctyh?kj fctkgjh Fkkuk lkluh ftyk
gkFkjl ds lkFk ifr iRuh ds :i esa jg jgh gS
izkfFkZuh ckfyx gS rFkk viuk Hkyk cqjk lkspus esa
iwjh rjg ls l{ke gS ysfdu gekjs firk th ge
yksxksa ds bl fj'rs ls cgqr gh ukjkt gS rFkk ges
tkus ls ekjus dh /kedh ns jgs gS fnukad 24-82020 dks gekjs firk th rFkk Fkkuk lkluh ds
dqN iqfyl okys vjfoUn ds ?kj ij vk;s vkSj
cksys vxj yMdh gekjs gokys ugha fd;k rks cgqr
cqjk gksxk vkSj /kedh fn;s fd rqe yksxksa dks QthZ
eqdnesa esa QWlk nsxs gekjs firk us iqfyl ds lkeus
gh /kedh fn;k fd rqe nksuks dks tku ls [kRe
djs nsxsA ge nksuks dh tku [krjs esa gS rFkk ge
nksuks cgqr Mjs gq, gSaA

vr% Jheku th ls fuosnu gS fd gekjs
izkFkZuk i= ij lgkuwHkwfriwoZd fopkj djrs gq, ge
yksxksa dks lqj{kk iznku djus dh d`ik djsA

lnk vkHkkjh jgsxhA

izkfFkZuh

fnukad& 17@09@2020 vk'kk iq=h
jke ckcw

 fu0 fctyh?kj lluh

Fkkuk lkluh] ftyk gkFkjl]

7. From perusal of the writ petition,
we find that none of the pages of the writ
petition bear signature of either of the writ
petitioners. The writ petition is neither
accompanied by an affidavit of the
petitioners nor it is accompanied with
declaration
of
the
counsel
for
the
petitioners.

8. It has been stated in paragraph 5 of
the writ petition that the petitioner no. 1 is
married with one Sri Mahesh Chandra.
There is no averment in the writ petition
that the petitioner no. 1 has obtained a
decree of divorce from her husband
Mahesh
Chandra.
In
the
alleged
representation, it has been stated that the
914 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner nos. 1 and 2 are living as
husband and wife. The fact of the case as
briefly noted above shows that the
petitioner no. 1 is legally wedded wife of
Mahesh Chandra who has not been even
impleaded as respondent.

Questions:-

9. From the facts and submissions of
learned counsels for the parties as briefly
noted above, the following questions are
framed with the consent of learned
counsels for the parties for final disposal of
the present writ petition :-

(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
live-in-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. ?

Discussion & Findings

10. Since both the questions as
framed above are interlinked, therefore,
both are being considered and decided
together.

What is live-in-relationship

11.

Live-in-relationship
is
a
relationship which has not been socially
accepted in India, unlike many other
countries. In Lata Singh v. State of U.P.1
and in Indra Sarma Vs. V. K.V. Sarma2
(paras 40, 42, 43 & 53) Hon'ble Supreme
Court observed that live-in relationship
between
two
consenting
adults
of
heterosexual sex does not amount to any
offence even though it may be perceived as
immoral.
In
D.
Velusamy
Vs.
D
Patchaiammal3 (paras 31 & 32) Hon'ble
Supreme Court explained the phrase
"relationship in the nature of marriage" as
under :-

"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 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.

(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
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
8 All. Smt. Asha Devi & Anr. Vs. State of U.P. & Ors.
915
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 by us)

12. The expression "relationship in
the nature of marriage" is also described as
de
facto
relationship,
marriage-like
relationship,
cohabitation,
couple
relationship, meretricious relationship (now
known as committed intimate relationship
etc.).

Relationship which are not live-inrelationship

or relationship in the nature of
marriage

13. Perusal of various judgments of
Hon'ble Supreme Court reveals that the
following relationship have not being
recognised
or
approved
as
live-inrelationship or relationship in the nature
of marriage. This list is not exhaustive but
merely illustrative :-

(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's Case
(supra).

(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 India5 (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 by us)

(d) If both the persons are
otherwise not qualified to enter into a legal
916 INDIAN LAW REPORTS ALLAHABAD SERIES
marriage including being unmarried, vide
D Velusamy Vs. D Patchaiammal (supra)
(para 31).

What is Criminal Offence

14. "Offence" means "an act or
instance of offending"; "commit an illegal
act" and "illegal" means, "contrary to or
forbidden by law". "Offence" has to be read
and understood in the context as it has been
prescribed under the provisions of Sections
40, 41 and 42 IPC which cover the offences
punishable under I.P.C. or under special or
local law or as defined under Section 2(n)
Cr.P.C. or Section 3(38) of the General
Clauses Act, 1897 (vide S. Khushboo Vs.
Kanniammal7, Proprietary Articles Trade
Association Vs. Attorney General for
Canada8; Thomas Dana Vs. State of
Punjab9; Jawala Ram & Ors. Vs. The State
of Pepsu (now Punjab) & Ors.10; and
Standard Chartered Bank & Ors. Vs.
Directorate of Enforcement & Ors.11).

Whether Writ of Mandamus can be
issued

15. In Director of Settlement, A.P.
Vs. M.R. Apparao12, (para 17) Hon'ble
Supreme Court considered the High Court's
power for issuance of mandamus and
held as under :-

"17. Coming to the third question,
which is more important from the point of
consideration of High Court's power for
issuance of mandamus, it appears that the
constitution empowers the High Court to
issue writs, directions or orders in the
nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari
for the enforcement of any of the rights
conferred by Part III and for any other
purpose
under
Article
226
of
the
Constitution of India. It is, therefore
essentially, a power upon the High Court
for issuance of high prerogative writs for
enforcement of fundamental rights as well
as non-fundamental or ordinary legal
rights, which may come within the
expression 'for any other purpose'. The
powers of the High Courts under Article
226 though are discretionary and no limits
can be placed upon their discretion, they
must be exercised along recognised lines
and
subject
to
certain
self-imposed
limitations. The expression 'for any other
purpose'
in Article
226,
makes
the
jurisdiction of the High Courts more
extensive but yet the Court must exercise
the same with certain restraints and within
some parameters. 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
8 All. Smt. Asha Devi & Anr. Vs. State of U.P. & Ors.
917
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.{Kalyan Singh
vs. State of U.P., AIR 1962 SC 1183}. The
duty that may be enjoined by mandamus
may be one imposed by the Constitution, a
statute, common law or by rules or orders
having the force of law. When the aforesaid
principle are applied to the case in hand,
the so-called right of the respondents,
depending upon the conclusion that the
amendment Act is constitutionally invalid
and, therefore, the right to get interim
payment will continue till the final decision
of the Board of Revenue cannot be
sustained when the Supreme Court itself
has upheld the constitutional validity of the
amendment Act in Venkatagiri's case
(2002) 4 SCC 660 on 6.2.1986 in Civil
Appeal Nos. 398 & 1385 of 1972 and
further declared in the said appeal that
interim
payments
are
payable
till
determination is made by the Director
under Section 39(1). The High Court in
exercise of power of issuance of mandamus
could not have said anything contrary to
that on the ground that the earlier
judgment in favour of the respondents
became final, not being challenged. The
impugned mandamus issued by the Division
Bench of the Andhra Pradesh High Court
in the teeth of the declaration made by the
Supreme Court as to the constitutionality of
the amendment Act would be an exercise of
power
and
jurisdiction
when
the
respondents did not have the subsisting
legally enforceable right under the very Act
itself. In the aforesaid circumstances, we
have no hesitation to come to the
conclusion that the High Court committed
serious error in issuing the mandamus in
question for enforcement of the so-called
right which never subsisted on the date, the
Court issued the mandamus in view of the
decision of this Court in Venkatagiri's case.
In our view, therefore, the said conclusion
of the High Court must be held to be
erroneous."
(Emphasis supplied by us)

16. According to own case of the
petitioners, the petitioner no.1 is still a
legally wedded wife of one Mahesh
Chandra. As per own alleged application
dated 17.09.2020 (as reproduced in para 6
above), the petitioners are living as
husband and wife and they have sought
protection from interference in their living
together as husband and wife. Once the
petitioner No.1 is a married woman
being wife of one Mahesh Chandra, the
act
of
petitioners
particularly
the
petitioner
No.2,
may
constitute
an
offence under Sections 494/495 I.P.C.
Such a relationship does not fall within
the
phrase
"live-in-relationship"
or
"relationship in the nature of marriage".
The writ petition has been filed by the
petitioners for protection from interference
by others in their living as husband and
wife. If the protection as prayed is granted,
it may amount to grant protection against
commission of offences under Sections
494/495 I.P.C.

17. Article 226 of the Constitution of
India empowers High Court to issue
directions, orders or writs in the nature of
habeas corpus, mandamus, prohibiton, quo
warranto and certiorari or any of them.
Such directions, orders or writs may be
issued for the enforcement of fundamental
rights or for any other purpose. The
jurisdiction under Article 226 is equitable
and discretionary.

18. It is settled law that writ of
mandamus can be issued if the petitioner
has a legal right to the performance of a
918 INDIAN LAW REPORTS ALLAHABAD SERIES
legal duty by the party against whom the
mandamus is sought and such right must be
subsisting on the date of the petition.
Similar view has also been taken by
Hon'ble Supreme Court in Kalyan Singh
vs. State of U.P.13. 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.

Judgments relied by the Petitioners :

19. Lastly, learned counsel for the
petitioners has relied upon a Division
Bench judgment of this Court dated
11.11.2020
in
Criminal
Misc. Writ
Petition No.11367 of 2020 (Salamat
Ansari & 3 Others Vs. State of U.P. & 3
others). We find that the aforesaid
judgment has no relevance on the facts of
the present case. In the case of Salamat
Ansari and others (supra) the F.I.R.
Under Sections 363, 366, 352, 506 I.P.C.
and Section 7/8 POSCO Act was quashed
by the Court primarily on the ground that
no offence has been made out as the two
grown up individuals were living together
for over a year of their own free will and
choice. In the case of Salamat Ansari and
others (supra) (paras 13,14,15,17) this
Court considered the judgment of learned
single Judge, dated 16.12.2014 in Writ C
No.57068 of 2014 (Smt. Noor Jahan
Begum @ Anjali Misra and another Vs.
State of U.P. and others) and, without
interfering with the principles of law in
Smt. Noor Jahan's (supra) case on
"conversion of religion and void marriage";
observed that no doubt the ladies in
question could not authenticate their
alleged conversion and once the alleged
conversion
was
under
cloud;
the
constitutional
Court
was
obliged
to
ascertain the wish and desire of the girls as
they were above the age of 18 years and
were
living
together
which
can
be
classified as a relationship in the nature of
marriage as distinct from the relationship
arising out of marriage in view of the
provisions of Protection of Women from
Domestic Violence Act, 2005. In paragraph
17 of the judgment in Salamat Ansari and
others (supra) the Court observed that "we
clarify that while deciding this petition, we
have not commented upon the validity of
alleged
marriage/conversion".
In
the
aforesaid judgment in Salamat Ansari and
others (supra) this Court had no occasion
to consider what is "live-in-relationship" or
"relationship in the nature of marriage" or
when a writ of mandamus can be issued or
whether protection can be granted to such
petitioners whose act prima facie constitute
offences under Sections 494/495 I.P.C.

20. Another judgment relied by
learned counsel for the petitioner being
judgment dated 2.11.2020 in Writ - C No. -
17394 of 2020 (Sultana Mirza And
Another Vs. State of U.P. and 5 others) is
also distinguishable on facts of the present
case. Therefore, it is of no help to the
petitioners.

Conclusions:

21. The discussion and findings as
recorded in foregoing paragraphs are
briefly summarized as under:-
8 All. Smt. Asha Devi & Anr. Vs. State of U.P. & Ors.
919

(i) 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 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.

(ii) 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'.

(iii) Following relationship have
not being recognised or approved as livein-relationship or relationship in the
nature of marriage. This list is not
exhaustive but merely illustrative :-

(a) Concubine can not maintain
relationship in the nature of marriage.

(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.
Polygamy is also a criminal offence under
Sections 494 & 495 I.P.C.

(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

(d) If both the persons are
otherwise not qualified to enter into a legal
marriage including being unmarried.

(iv) Once the petitioner No.1 is
a married woman being wife of one
Mahesh Chandra, the act of petitioners
particularly the petitioner No.2, may
constitute an offence under Sections
494/495 I.P.C. Such a relationship does
not fall within the phrase "live-inrelationship" or "relationship in the
nature of marriage". The writ petition has
been filed by the petitioners for protection
from interference by others in their living
as husband and wife. If the protection as
prayed is granted, it may amount to grant
protection against commission of offences
under Sections 494/495 I.P.C.

(v) It is settled law that writ of
mandamus can be issued if the petitioner
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.
Similar view has also been taken by
Hon'ble Supreme Court in Kalyan Singh
vs. State of U.P. (supra) and in Director
of Settlement A.P. (supra). 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
920 INDIAN LAW REPORTS ALLAHABAD SERIES
statutory
provision
including
penal
provision. The petitioners do not have
legally protected and judicially enforceable
subsisting right to ask for mandamus.

Answer to Questions

22. We answer question Nos.(i) and
(ii) in negative i.e. no protection can be
granted to petitioners by this Court in
exercise of powers conferred under Article
226 of the Constitution of India.

23. For all the reasons aforestated, we
are
not
inclined
to
exercise
our
discretionary jurisdiction. Consequently,
the writ petition fails and is hereby
dismissed.
----------
(2021)08ILR A920
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.07.2021

BEFORE

THE HON'BLE NAHEED ARA MOONIS, J.
THE HON'BLE SAUMITRA DAYAL SINGH, J.

Writ C No. 2737 of 2021

Kisan Seva Sansthan & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ved Prakash Shukla

Counsel for the Respondents:
C.S.C.

Civil Law - Maintenance and Welfare of
Parents and Senior Citizens Act, 2007 -
The
Uttar
Pradesh
Maintenance
and
Welfare of Parents and Senior Citizens
Rules, 2014 (hereinafter referred to as
''the Rules') have been framed and
enforced by the State Government of Uttar
Pradesh - s. 21. Duties and Powers of the
District Magistrate- Rule 21 (2) (iii) of
Rules District Magistrate of each district
alone has been vested with the authority
to ensure that the old age home complies
with the laws - Director, Social Welfare
has no jurisdiction to cancel the earlier
approval granted to the petitioner to run
an old age home (Para 8)
Earlier approval granted to the petitioner to run
an old age home cancelled on a bald assertion
that the facility is not being run as per the
norms - Held - Neither the violation of norms
has
been
specified
in
the
impugned
communication nor the petitioner has been
given any notice or opportunity to cure or
explain the same - Communication set aside.
(Para 28)
Allowed.(E-4)
List of Cases cited :
1. Commissioner of Police Vs Gordhandas
Bhanji, AIR 1952 SC 16
2. Ashwani Kumar Vs U.O.I., (2019) 2 SCC 636
3. Nawabkhan Abbaskhan Vs St. of Guj., (1974)
2 SCC 121
(Delivered by Hon'ble Naheed Ara
Moonis, J.
&
Hon'ble Saumitra Dayal Singh, J.)

1. Heard Shri Ved Prakash Shukla,
learned counsel for the petitioners and Shri
Mata Prasad, learned Standing Counsel for
the State.

2. Present petition has been filed to
challenge
the
communication
dated
30.09.2020 issued by respondent no.4 - the
District Social Welfare Officer, Sant Kabir
Nagar. Thereby, the earlier approval
granted to the petitioner no.1 to run an old
age home has been cancelled and its
existing inmates-forty seven in number,