Parties
- Asha Devi & Anr. (Petitioner)
- State of U.P. (Respondent)
Bench
- Justice S.P. Kesarwani
- Justice Y.K. Srivastava
Issue
- Whether a married woman living with another person without divorcing her husband is entitled to protection by the court?
Facts of the Case
The petitioner, Asha Devi, had started living with another man, Suraj Kumar, without having obtained divorce for her existing marriage with Mahesh Chandra. They claimed to be in a live-in relationship and asked for protection by the Court. The petitioner approached the court under writ jurisdiction under section 226 of the Indian Constitution.
Petitioners' Contention
The petitioners contended that both of them were adults and were living together as husband and wife and that no one can interfere in that. Therefore, protection must be provided by the court to them.
Respondent's Contention
The respondents contended that marrying another person without a divorce from the earlier spouse is an offence. Therefore, no protection must be given.
Relevant Sections
Section 494 IPC (Marrying again during lifetime of husband or wife)
"Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”
Section 495 IPC (Same offence with concealment of former marriage from person with whom subsequent marriage is contracted)
"Whoever commits the offence defined in the last preceding section having concealed from the person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”
Judgment
Justice S.P. Kesarwani and Justice Y.K. Srivastava, through their judgment, made it clear that liv-in relationships don’t include situations of a married woman living with another person without having divorced her husband. It was held that a married woman cannot live with another person without a divorce from previous marriage.
The Allahabad High Court held that "It is a 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”. The Court further said that "the petitioner do not have legally protected and judicially enforceable subsisting right to ask for mandamus”.
Conclusion
By the way of this judgment, the honorable High Court has clearly stated that the right to approach the Court under Article 226 can only be exercised when a legal right exists. It cannot be used in the absence of any legal rights. It was clearly stated that a married woman living with another man without having divorced the existing spouse doesn’t have any legal to get protection from the Court.
