Research › Search › Judgment

Allahabad High Court · body

2024 DIGILAW 475 (ALL)

Pooja Devi v. State of U. P.

2024-02-13

RENU AGARWAL

body2024
JUDGMENT Mrs. Renu Agarwal, J. Instant writ petition under Article 226 of the Constitution has been filed by the petitioners with prayer for issuing writ, order or direction in the nature of mandamus commanding the respondents for not disturbed the marriage life of petitioners. 2. Heard Sri. S.D. Dwivedi, learned counsel for the petitioners, Sri. Ravi Kant Shukla, learned counsel for opposite party no.3, Sri. Yogesh Kumar, learned Standing Counsel for State and perused the record. 3. Learned counsel for the petitioners submitted that both the petitioners have attend the age of majority. As per high school certificate-cum-marks sheet the date of birth of petitioner no.1-Smt. Pooja Devi is 08.12.1992 and she is aged about more than 31 years. As per the high school certificate-cum-marks sheet of petitioner no.2 Rinku Kumar is 12.06.2002 and he is aged about more than 23 years. It is submitted that petitioner no.1 earlier marriage with respondent no.3 Pramod Kumar, who is habitual drinker and regularly beaten to the petitioner no.1, due to which she left the house of respondent no.3 and started live with petitioner no.2 of her own free will as live-in-relationship alongwith her child. The respondent no.3 (husband of petitioner no.1) threaten the petitioners and disturbing their relationship, hence they moved this petition seeking protection. 4. On the other hand, learned counsel for respondent no.3 submitted that petitioner no.1 is legally wedded wife of respondent no.3 and she lived with petitioner no.2 without any divorce decree from the competent court in adultery. Therefore, their relationship can not be protected by law and opposed the prayer. 5. Learned Standing Counsel for the State opposed the prayer and relied upon the Division Bench judgment of this Court passed in Writ-C No.18743 of 2020 (Asha Devi and another v. State of U.P. and 3 others), in which two question are framed by the Court, which are as follows:- (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 weeded wife of someone else and has not taken divorce so far ? (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 IPC ? 6. (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 IPC ? 6. In the aforesaid judgment, the Division Bench of this Court, relied upon the judgment of Hon'ble Apex Court passed in the case of Director of Settlement, A.P. v. M.R. Apparao, in which the Hon'ble Apex Court considered the High Court's power for issuance of mandamus and held as under:- "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, it 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" 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. Kalyan Sigh v. 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 on 4th of February, 1986 in Civil Appeal No. 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. 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." 7. It is also submitted by learned Standing Counsel that Hon'ble Apex Court held in Kalyan Singh v. State of U.P.. that "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." 8. I have heard the rival submissions of learned counsel for the parties and perused the record. 9. Perusal of record shows that in the present case petitioner no.1 is legally wedded wife of respondent no.3. There is no document on record to show that petitioner no.1 has obtained any decree of divorce from the court of competent jurisdiction, hence she is still legally wedded wife of respondent no.3 and she is living in adultery with petitioner no.2. The court could not protect such type of relationship which is not supported by law. If the court indulge in such type of cases and grant protection to illegal relationship, then it will create chaos in the society. The petitioner no.1 alongwith her child have left the house of her husband/respondent no.3 without any reasonable cause, hence such type of illegal relationship need not be protected by court. Therefore, the petitioners are not entitled to get any type of protection from this Court. The petition has no force and is liable to be dismissed with cost. 10. Accordingly, the present petition is dismissed with cost of Rs. 5000/- 11. Therefore, the petitioners are not entitled to get any type of protection from this Court. The petition has no force and is liable to be dismissed with cost. 10. Accordingly, the present petition is dismissed with cost of Rs. 5000/- 11. The petitioners are directed to deposit the costs of Rs. 5000/- before the mediation centre of this Court within 15 days from today.