# Smt. Mamta & Anr v. State of U.P. & Ors

- **Citation:** (2024) 4 ILRA 1553
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-14
- **Case number:** Writ -C No. 40168 of 2023
- **Bench:** Mrs. Renu Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-mamta-anr-v-state-of-u-p-ors-51746
- **Pages:** 11

## Headnote

Civil Law - Constitution of India,1950Article 226-The petitioners who were in
an interfaith live-in relationship, sought
protection against interference in their
personal lives, particularly from the
father of petitioner no.1 who allegedly
threatened
them-claimed
protection
under judgments like Lata Singh's case
and
Shafin
Jahan's
case
which
emphasized the rights of adults to
choose their partners-Held, the court
ruled
that
the
petitioners
lacked
evidence of a long-term relationship
akin to marriage(e.g. joint or financial
arrangements)-petitioners
had
not
followed
the
legal
procedures
for
conversion
or
marriage
under
the
Special Marriage Act-More so, personal
law of petitioner no.2 did not support
live-in relationship.(Para 1 to 29)

The writ petition is dismissed. (E-6)

List of Cases cited:

## Text

4 All. Smt. Mamta & Anr. Vs. State of U.P. & Ors.
1553
(iv) Excel Crop Care Ltd. Vs
Competition Commission of India and
others, 2017 (8) SCC 47
(v) Isher Das vs. State of Punjab,
AIR 1972 SC 1295
(vi) Assistant Commissioner vs
Velliappa Textiles, (2003) 132 Taxman 165
(vii)
Krishi
Utpadan
Mandi
Samiti and others vs Pilibhit Pantnagar
Beej Ltd. and another, AIR 2003 SCW
6696.

21. Having considered the entire
material placed before this Court and the
submissions advanced, this Court is of
the view that the petitioner is entitled to
get the benefit of Government Order
dated 24.12.2012 and his case is covered
by the principle of law laid down by this
Court in the case of Ramvir Singh
(supra).

22. Consequently, the writ petition
succeeds and is allowed.

23. The order impugned dated
15.11.2018 passed by the Additional
District Magistrate (Finance & Revenue),
Bulandshahr (respondent No. 2) is hereby
quashed.

24. No order as to costs.
----------
(2024) 4 ILRA 1553
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2024

BEFORE

THE HON'BLE MRS. RENU AGARWAL, J.

Writ -C No. 40168 of 2023

Smt. Mamta & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioners:
Sri Umair Alam, Sri Sanjay Srivastava

Counsel for the Respondents:
C.S.C.

Civil Law - Constitution of India,1950Article 226-The petitioners who were in
an interfaith live-in relationship, sought
protection against interference in their
personal lives, particularly from the
father of petitioner no.1 who allegedly
threatened
them-claimed
protection
under judgments like Lata Singh's case
and
Shafin
Jahan's
case
which
emphasized the rights of adults to
choose their partners-Held, the court
ruled
that
the
petitioners
lacked
evidence of a long-term relationship
akin to marriage(e.g. joint or financial
arrangements)-petitioners
had
not
followed
the
legal
procedures
for
conversion
or
marriage
under
the
Special Marriage Act-More so, personal
law of petitioner no.2 did not support
live-in relationship.(Para 1 to 29)

The writ petition is dismissed. (E-6)

List of Cases cited:

1. Lata Singh Vs St. of U.P. & anr.. (2006) 5 SCC
475

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
1554 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Asha Devi & anr. Vs State of U.P. & ors. Writ
C 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. 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.

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

3. It is submitted that the
petitioners are major and they have fallen
in love with each other. They wanted to live
with each other. Parents of the petitioner
No. 1 (respondent No. 4) settled the
marriage of petitioner No. 1 with a
handicap person against her wishes which
was refused by petitioner No.1. The
respondent No. 4 started atrocities upon the
petitioner No.1 and threatened to kill her
therefore she left her house on 20.10.2023
and eloped with petitioner No. 2 with her
own sweet will and they are living under
the same roof since 20.10.2023. The
petitioners No. 1 and 2 belongs to different
castes and religion. It is submitted that the
petitioners have right to take decision of
their life, therefore they started living in
relationship.
4. It is further submitted that the
respondent No. 4 is interfering in the
peaceful living of the petitioners. The
petitioner No. 1 made an application before
the Senior Superintendent of Police,
Gautam Buddh Nagar dated 25.10.2023
stating that she is living in relationship with
petitioner No. 2 but respondent No. 4
without any authority of law is trying to
interfere in the peaceful living of the
petitioners with the help of antisocial
elements. The aforesaid application is on
record as annexure No. 3, however, no
protection has been provided by the police
authorities therefore, the present petition is
filed.

5. Learned counsel for the
petitioners has relied upon the judgment of
Supreme Court in the cases of Lata Singh
Vs. State of Uttar Pradesh and another
(2006) 5 SCC 475; Shafin Jahan Vs.
Asokan K.M. and Ors. reported in (2018)
16 SCC 368 to contend that when the
petitioners are major they are at liberty to
choose partners of their choice irrespective
of caste or faith and their choice cannot be
interfered with even by their parents. No
one including the parents of petitioners
have any right to create disturbance in
peaceful living of the petitioners.

6. Learned counsel for the
petitioners has also relied upon the
judgment of Supreme Court in the case of
Nandkumar and another Vs. State of
Kerala reported at (2018) 16 SCC 620 to
contend that the live in relationship is now
recognized by the legislature itself and it
has found its place under the provisions of
Protection of Women from Domestic
Violence Act.

7. Learned counsel for the
petitioners has also relied upon the
4 All. Smt. Mamta & Anr. Vs. State of U.P. & Ors.
1555
judgment of Division Bench of this Court
in the case of Kamini Devi Vs. State of U.P
Writ C No. 11108 of 2020 and Writ C
No.27338 of 2023 Razia and another Vs.
State of U.P. to contend that the live in
relationship is no offence and if the
petitioners are major, they are entitled for
living in relationship.

8. Learned Standing Counsel on the
other hand submitted that petitioners are
interfaith couples and have not complied with
the provisions of Sections 8 and 9 of the U.P.
Prevention of Unlawful Conversion of
Religion Act. No application for conversion
has been moved, though the Act came into
force on 04.03.2021. It is also submitted that
the case laws relied upon by the learned
counsel for the petitioners i.e., Lata Singh
(supra), Shafin Jahan (supra) will not come
to the aid of the petitioners since these
pronouncements by the Hon'ble Apex Court
are prior in time to the promulgation of the
U.P. Prohibition of Unlawful Conversion of
Religion Act, 2021.

9. Learned Standing Counsel has
relied upon the judgment of Apex Court in
the case of Kiran Rawat and Another Vs.
State of U.P. to contend that a muslim cannot
live in relationship even as per their personal
laws 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.

10. I have heard Shri Umair Alam,
learned counsel assisted by Shri Sanjay
Srivastava,
learned
counsel
for
the
petitioners, Shri Ashwini Kumar Tripathi,
learned Additional Chief Standing Counsel
for the State and perused the record.

11. It is submitted that the
petitioners are major and are living in
relationship. The petitioners have brought
on record the high school marks sheet of
petitioner No. 1 wherein her date of birth is
recorded as 17.08.2001. The petitioner No.
2 has brought on record his Driving
License wherein his date of birth is
mentioned as 01.01.2001. The petitioners
also belongs to different religion. Both the
petitioners fell in love with each other and
are living in relationship. Respondent No.4
is interfering in the living in relationship of
the petitioners. Petitioner No. 1 has moved
an application to the Senior Superintendent
of Police, Gautam Buddh Nagar for
protection of herself as well as petitioner
No. 2 from the respondent No. 4 but no
action has been taken by the police
authorities in the matter hence, the present
writ petition has been filed.

12. Learned counsel for the
petitioners has relied upon the law laid
down by Supreme Court in the case of Lata
Singh Vs. State of Uttar Pradesh and
another (2006) 5 SCC 475 to contend that
once a person has attained majority, he/she
can live with whomsoever it like and their
choice cannot be interfered with by anyone.
It would be apposite to reproduce the
relevant part of the judgment of Supreme
Court in the case of Lata Singh (supra ) for
convenience and ready reference:

"17. The caste system is a curse on
the nation and the sooner it is destroyed the
better. In fact, it is dividing the nation at a
time when we have to be united to face the
challenges before the nation unitedly.
Hence, inter-caste marriages are in fact in
the national interest as they will result in
destroying the caste system. However,
disturbing news are coming from several
parts of the country that young men and
women who undergo inter-caste marriage,
are threatened with violence, or violence is
1556 INDIAN LAW REPORTS ALLAHABAD SERIES
actually committed on them. In our
opinion, such acts of violence or threats or
harassment are wholly illegal and those
who commit them must be severely
punished. This is a free and democratic
country, and once a person becomes a
major he or she can marry whosoever
he/she likes. If the parents of the boy or girl
do not approve of such inter-caste or interreligious marriage the maximum they can
do is that they can cut off social relations
with the son or the daughter, but they
cannot give threats or commit or instigate
acts of violence and cannot harass the
person who undergoes such inter-caste or
inter- religious marriage. We, therefore,
direct
that
the
administration/police
authorities throughout the country will see
to it that if any boy or girl who is a major
undergoes inter-caste or inter-religious
marriage with a woman or man who is a
major, the couple are not harassed by any
one nor subjected to threats or acts of
violence, and any one who gives such
threats or harasses or commits acts of
violence either himself or at his instigation,
is taken to task by instituting criminal
proceedings by the police against such
persons and further stern action is taken
against such persons as provided by law.
We sometimes hear of `honour' killings of
such persons who undergo inter-caste or
inter-religious marriage of their own free
will. There is nothing honourable in such
killings, and in fact they are nothing but
barbaric and shameful acts of murder
committed
by
brutal,
feudal
minded
persons who deserve harsh punishment.
Only in this way can we stamp out such
acts of barbarism."

13. To contend the freedom of an
individual who has attained majority to live
with anyone whom he/she like reliance is
also placed by learned counsel for the
petitioners on the judgment of Supreme
Court in the case of Shafin Jahan Vs.
Asokan K.M. and Ors. reported in (2018)
16 SCC 368, wherein the Supreme Court
emphasized due importance to the right of
choice of an adult person, which the
Constitution accords to an adult person.
The relevant part of the judgment of the
Supreme Court in the case of Shafin Jahan
(Supra) is reproduced below:-

"52. It is obligatory to state here that
expression of choice in accord with law is
acceptance of individual identity. Curtailment
of that expression and the ultimate action
emanating therefrom on the conceptual
structuralism of obeisance to the societal will
destroy the individualistic entity of a person.
The social values and morals have their
space
but
they
are
not
above
the
constitutionally guaranteed freedom. The
said freedom is both a constitutional and a
human right. Deprivation of that freedom
which is ingrained in choice on the plea of
faith is impermissible. Faith of a person in
intrinsic to his/he meaningful existence. To
have the freedom of faith is essential to
his/her autonomy; and it strengthens the core
norms of the Constitution. Choosing a faith is
the substratum of individuality and sans it,
the right of choice becomes a shadow. It has
to be remembered that the realisation of a
right is more important than the conferment
of the right. Such actualisation indeed
ostracises any kind of societal notoriety and
keeps at bay the patriarchal supremacy. It is
so because the individualistic faith and
expression of choice are fundamental for the
fructification of the right. Thus, we would like
to
call
it
indispensable
preliminary
condition"

14. Learned counsel for the
petitioner has also placed reliance on the
judgment of Supreme Court in the case of
4 All. Smt. Mamta & Anr. Vs. State of U.P. & Ors.
1557
Nandkumar and another Vs. State of
Kerala reported at (2018) 16 SCC 620 to
contend that the live in relationship is now
recognized by the legislature itself and it
has found its place under the provisions of
Protection of Women from Domestic
Violence Act.

15. Reliance is also placed by the
learned counsel for the petitioner on the
decision of Division Bench of this Court in
the case of Kamini Devi Vs. State of U.P
Writ C No. 11108 of 2020 and Writ C
No.27338 of 2023 Razia and another Vs.
State of U.P. decided on 05.09.2023 to
contend that the live in relationship is no
offence and the petitioners if they are major
are entitled for their living in relationship.

16. Learned Standing Counsel on
the has relied upon the decision of Supreme
Court in the case of Kiran Rawat(Supra),
to contend that a muslim cannot live in
relationship as per their personal law there
is no place for living in relationship, the
relevant part of judgment of Supreme Court
in the case of Kiran Rawat (supra) is
reproduced below:

"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."

17. The judgments of Supreme
Court relied upon by the learned counsel
for the petitioners in the case of Lata
Singh (supra) and Shafin Jahan (supra)
though guarantee the fundamental right of
choice of an adult person while marrying
with inter-faith persons, however, will not
come to the aid of the petitioners as after
the promulgation of the U.P. Prohibition of
Unlawful Conversion of Religion Act one
cannot freely move with another except in
accordance with the procedure prescribed
in Section 8 and 9 of the aforesaid Act, or
by marriage under the Special Marriage
Act. Here in this case, it is an admitted case
of the petitioners that they are living in
relationship and there is nothing on record
they they have moved any application for
marriage under the Special Marriage Act.
Learned counsel for the petitioners may
contend that the petitioners herein are only
living
in
relationship
and
as
such
compliance of Sections 8 and 9 of the U.P.
Prohibition of Unlawful Conversion of
Religion Act is not necessary for the
petitioners.

18. In refutation to the aforesaid
contention, reference may be made to the
explanation attached to Section 3 of the
U.P. Prohibition of Unlawful Conversion of
Religion Act which runs as under:

"3(1) No person shall convert or
attempt to convert, either directly or
otherwise, any other person from one
religion to another by use or practice of
misrepresentation, force, undue influence,
1558 INDIAN LAW REPORTS ALLAHABAD SERIES
coercion, allurement by any fraudulent
means. No person shall abet, convince or
conspire such conversion.
Explanation:- For the purposes of
this
sub-section
conversion
by
solemnization of marriage or relationship
in the nature of marriage on account of
factors enumerated in this sub-section shall
be deemed included"

19. In the case of D.Velusamy Vs.
D. Patchajammal reported in (2010) 10
SCC
469,
Supreme
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:-

"(2) The following factors are
indicators of whether or not a de facto
relationship exists between 2 persons, but
are not essential-
(a) the length of the relationship
between them.
(b) whether the 2 persons have
resided together
(c) the nature and extent of
common residence
(d) whether there is, or has been, a
sexual relationship between them
(e)
the
degree
of
financial
dependence or interdependence, and any
arrangements
for
financial
support,
between them
(f)
the
ownership,
use
and
acquisition of their property (including
property the own individually);
(g)
the
degree
of
mutual
commitment by them to a shared life;
(h) whether they care for and
support children
(I) the reputation, and public
aspect, of the relationship between them."

20. While dealing with Kamini
Devi (supra) Division Bench of this Court
quoted Indra Sharma Vs. V.K.V Sharma
reported in (2013) 15 SCC 755 as follows.

46. The Domestic and Family
Violence
Protection
Act,
2012
(Queensland) has defined the expression
"couple relationship" to mean as follows":
"18.
Meaning
of
couple
relationship.-
1) * * *
2) In deciding whether a couple
relationship exists, a court may have regard
to the following -
2)
the
circumstances
of
the
relationship
between
the
persons,
including, for example-
(i) the degree of trust between the
persons; and
(ii) the level of each person's
dependence on, and commitment to, the
other person;
b) the length of time for which the
relationship has existed or did exist;
c) the frequency of contact between
the persons;
d) the degree of intimacy between
the persons.
3) Without limiting sub-section (2),
the court may consider the following
factors in deciding whether a couple
relationship exists-
a) Whether the trust, dependence or
commitment is or was of the same level;
b) Whether one of the persons is or
was financially dependent on the other;
c) Whether the persons jointly own
or owned any property;
d) Whether the persons have or had
joint bank accounts;
4 All. Smt. Mamta & Anr. Vs. State of U.P. & Ors.
1559
e)
Whether
the
relationship
involves or involved a relationship of a
sexual nature;
f) Whether the relationship is or
was exclusive.
4) A couple relationship may exist
even if the court makes a negative finding
in relation to any or all of the factors
mentioned in subsection (3).
5) A couple relationship may exist
between two persons whether the persons
are of the same or a different gender.
6) A couple relationship does not
exist merely because two persons date or
dated each other on a number of
occasions."
47. The Property (Relationships)
Act, 1984 of North South Wales, Australia
also provides for some guidelines with
regard to the meaning and content of the
expression "de facto relationship", which
reads as follows:
"4 De facto relationships.- (1) For
the purposes of this Act, a de facto
relationship is a relationship between two
adult persons:
(a) who live together as a couple,
and
(b) who are not married to one
another or related by family.
(2) In determining whether two
persons are in a de facto relationship, all
the circumstances of the relationship are to
be taken into account, including such of the
following matters as may be relevant in a
particular case:-
(a) the duration of the relationship,
(b) the nature and extent of
common residence,
(c) whether or not a sexual
relationship exists,
(d)
the
degree
of
financial
dependence or interdependence, and any
arrangements
for
financial
support,
between the parties,
(e)
the
ownership,
use
and
acquisition of property,
(f)
the
degree
of
mutual
commitment to a shared life,
(g) the care and support of
children,
(h) the performance of household
duties,
(i) the reputation and public
aspects of the relationship.
(3) No finding in respect of any of
the matters mentioned in subsection (2) (a)-
(i), or in respect of any combination of
them, is to be regarded as necessary for the
existence of a de facto relationship, and a
court
determining
whether
such
a
relationship exists is entitled to have regard
to such matters, and to attach such weight
to any matter, as may seem appropriate to
the court in the circumstances of the case.
(4) Except as provided by section 6,
a reference in this Act to a party to a de
facto relationship includes a reference to a
person who, whether before or after the
commencement of this subsection, was a
party to such a relationship."
48. "In Marriage of Lindsay, In re,
and Latham v. Hennessey 87 Wn.2d 550
(1976), Pennington v. Pennington, the
Courts in United States took the view that
the
relevant
factors
establishing
a
meretricious
relationship
include
continuous cohabitation, duration of the
relationship, purpose of the relationship,
and the pooling of resources and services
for joint projects. The Courts also ruled
that a relationship need not be "long term"
to
be
characterized
as
meretricious
relationship. While a long term relationship
is not a threshold requirement, duration is
a significant factor. Further, the Court also
noticed that a short term relationship may
be characterized as a meretricious, but a
number of other important factors must be
present.
1560 INDIAN LAW REPORTS ALLAHABAD SERIES
49. In Stack v. Dowden [2007] 2
AC 432, Baroness Hale of Richmond said:
"Cohabitation
comes
in
many
different
shapes
and
sizes.
People
embarking
on
their
first
serious
relationship more commonly cohabit than
marry. Many of these relationships may be
quite short-lived and childless. But most
people
these
days
cohabit
before
marriage.....
So
many
couples
are
cohabiting with a view to marriage at some
later date - as long ago as 1998 the British
Household Panel Survey found that 75% of
current cohabitants expected to marry,
although only a third had firm plans: John
Ermisch,
Personal
Relationships
and
Marriage Expectations (2000) Working
Papers of the Institute of Social and
Economic
Research:
Paper
2000-27.
Cohabitation is much more likely to end in
separation
than
is
marriage,
and
cohabitations which end in separation tend
to last for a shorter time than marriages
which end in divorce. But increasing
numbers of couples cohabit for long
periods without marrying and their reasons
for doing so vary from conscious rejection
of marriage as a legal institution to
regarding themselves ''as good as married'
anyway: Law Commission, Consultation
Paper No 179, Part 2, para 2.45."
50. In MW v. The Department of
Community Services [2008] HCA 12,
Gleeson,
CJ,
made
the
following
observations:
"Finn J was correct to stress the
difference between living together and
living together ''as a couple in a
relationship in the nature of marriage or
civil union'. The relationship between two
people who live together, even though it is a
sexual relationship, may, or may not, be a
relationship in the nature of marriage or
civil
union.
One
consequence
of
relationships of the former kind becoming
commonplace is that it may now be more
difficult, rather than easier, to infer that
they have the nature of marriage or civil
union, at least where the care and
upbringing of children are not involved."
51. In Lynam v. The DirectorGeneral of Social Security (1983) 52 ALR
128, the Court considered whether a man
and a woman living together ''as husband
and wife on a bona fide domestic basis' and
Fitzgerald, J. said:
"Each element of a relationship
draws its colour and its significance from
the other elements, some of which may
point in one direction and some in the
other. What must be looked at is the
composite picture. Any attempt to isolate
individual factors and to attribute to them
relative
degrees
of
materiality
or
importance involves a denial of common
experience and will almost inevitably be
productive of error. The endless scope for
differences
in
human
attitudes
and
activities means that there will be an almost
infinite
variety
of
combinations
of
circumstances
which
may
fall
for
consideration. In any particular case, it
will be a question of fact and degree, a jury
question, whether a relationship between
two unrelated persons of the opposite sex
meets the statutory test."

21. In view of the aforesaid case
law the petitioners did not disclose that
they are in any domestic relationship or
voluntarily living held themselves out to
the world as being akin to spouses for a
significant period of time. There is nothing
on record primarily to show that they are
living as husband and wife except their
affidavit. No proof of joint account,
financial security, joint property or joint
expenditure is produced before this Court.
Petitioners have not applied for conversion
so far.
4 All. Smt. Mamta & Anr. Vs. State of U.P. & Ors.
1561
22. A Division Bench of this Court
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. ?"

23. 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)

24. 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
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
1562 INDIAN LAW REPORTS ALLAHABAD SERIES
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)."

25. 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. .................."

26. 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."
4 All. Rajendra Kumar Mishra Vs. State of U.P. & Ors.
1563
27. Thus in view of the above
discussions, it is clear that there is
nothing on record to show that the
petitioners fulfil the criteria for a
domestic relationship as they are not
living for a long period and as spouse, no
proof of joint account, financial security,
joint property or joint expenditure is
produced before this Court, further no
compliance of Section 8 and 9 of the U.P.
Unlawful Conversion of Religion Act has
been made by the petitioners, petitioners
have not applied for conversion so far
there is nothing on record to show that
any application for marriage under the
special marriage act has been moved by
the petitioners.

28. The relationship of the
petitioners
cannot
be
called
as
a
relationship akin to marriage, entitling
them for protection and the fact that
personal law of the petitioner No.2 also
does not warrant the petitioner No. 2 to
live in relationship. Right to freedom or
right to personal liberty is not as absolute
or unfettered right, it is qualified by some
restrictions also. Petitioners cannot be
provided
protection
of
law
in
contravention of law of land.

29. In view of the above
discussions the writ petition lacks merits
and is accordingly dismissed.
----------
(2024) 4 ILRA 1563
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.03.2024

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE JAYANT BANERJI, J.

Writ-C No. 40994 of 2023
Rajendra Kumar Mishra ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Petitioner:
Mamta Pandey, Sri R.S. Pandey, Rajshree
Malviya

Counsel for the Respondents:
Sri Archit Mandhyan, C.S.C., Sri Prateek Kumar,
Sri Shailesh Kumar Shukla, Udai Chandani

A. Civil Law - Constitution of India,1950Article 226-U.P. Krishi Utpadan Mandi
Act,1964-Sections
9(2),24
&
33-The
dispute involved a partnership firm where
the petitioner and respondent no.4 were
partners-a license for the firm had been
granted
in
1991
and
renewed
perioidically-In the year 2019, respondent
no. 4 sought renewal as the firm's
proprietor
without
the
petitioner's
knowledge-The Secretary of the Krishi
Utapadan Mandi Samiti lacks jurisdiction
to decide disputes regarding the nature of
firm(Partnership or proprietorship) or to
unilaterally
issue
licenses
without
a
resolution or delegation by the Mandi
Committee u/s 9(2) and 24 of the Act-The
delegation of revisional powers by the
Board of the Director, as per section 33 of
the Act,1964, is valid-The Director was
competent to entertain and decide the
revision filed by respondent no.4-An exparte decision by the revisional authority
does
not
necessarily
invalidate
the
proceedings
if
no
prejudice
is
demonstrated-In the present case, the
petitioner failed to establish that the lack
of a hearing caused substantive prejudiceDisputes regarding the ownership or
nature of a partnership firm must be
resolved by a competent civil court, as the
Mandi Parishad or its Secretary lacks
authority under the Act and Rules- orders
passed without jurisdiction, such as one
issued by the Secretary on june 15,2022,
cannot be revived even if subsequent
orders are challenged- Hence, the writ
petition
is
dismissed
affirming
the
Director's revisional order.(Para 1 to 17)

The writ petition is dismissed. (E-6)