The Allahabad High Court while dismissing a protection petition filed by a Muslim married woman and her live-in partner, observed that she is living with partner in contravention of the provisions of Muslim Law (Shariat), wherein legally wedded wife cannot go outside marriage and this act of Muslim women is defined as Zina and Haram.
A Single Bench of Justice Renu Agarwal passed this order while hearing a petition filed by a married Muslim woman and her Hindu live-in partner.
The petition under Article 226 of the Constitution has been preferred by the petitioners with the following prayers:-
“(i) Issue a writ order or direction in the nature of mandamus directing the respondent nos 2 to 4 not to interfere in the peaceful life of the petitioners and further not to harass them in any manner.
(ii) Issue a writ order or direction in the nature of mandamus directing the respondent nos 2 to 4 to provide security for the safety of petitioners.
(iii) Issue a writ order or direction in the nature of mandamus as the Court may deem fit and proper under the facts and circumstances of the case.
(iv) Award the cost of the writ petition to the petitioners.”
It is submitted by the counsel for the petitioners that as per aadhar card the date of birth of petitioner No1/woman is 01.01.1980 and she is aged about 44 years and the date of birth of the petitioner No 2/ men as per his aadhar card is 15.07.1987 and he is aged about more than 36 years.
It is submitted that petitioner no 1 earlier married one Mohsin. Mohsin has solemnized his second marriage with one Najma two years back and is living with her as husband and wife. Thereafter petitioner no1 willfully decided to leave her matrimonial house and started living at her parental home. The respondent no 4, who is father of petitioner no1 tortured her, therefore, she decided to live with petitioner no 2-Vikas Kumar, in live-in-relationship.
It is further submitted that the parents of petitioner no1 and her other family members are interfering in their peaceful live-in relationship. The petitioners apprehend danger to the life and liberty from respondent No 4 and other family members, therefore, petitioner no1 moved an application before the Senior Superintendent of Police, Muzaffarnagar on 04.01.2024, seeking protection for herself and petitioner No 2 from respondent No 4, but no action has been taken by police authorities in the matter. Therefore, the petition moved by the petitioners for issuance of mandamus against respondent no 4.
On the other hand, Standing Counsel submitted that petitioner no1 is already married to one Mohsin, she has not obtained any decree of divorce from her earlier husband and started living with petitioner no 2 in adultery, therefore, their relationship can not be protected by law.
From the perusal of record it transpires that both the petitioners are major and as per aadhar card the date of birth of petitioner No 1 is 01.01.1980 and she is aged about 44 years and the date of birth of the petitioner No 2 as per his aadhar card is 15.07.1987 and he is aged about more than 36 years. It is also apparent from the record that petitioner no 1 was earlier married to one Mohsin and leaving her earlier husband without obtaining divorce she started living with petitioner no 2.
The Court observed that,
From the factual matrix of the case it is apparent that petitioner no 1 is the legally wedded wife of Mohsin. She has not obtained any decree of divorce from the competent authority. She is living with petitioner no 2 in contravention of the provisions of Muslim Law (Shariat), wherein legally wedded wife can not go outside marriage and this act of Muslim women is defined as Zina and Haram. If we go to the criminality of the act of petitioner no 1 she may be prosecuted for the offence under section 494 and 495 IPC, as such relationship is not covered within the phrase of live-in relationship or relationship in the nature of marriage.
The petition has been filed by the petitioners for protection from interference by respondent no 4, who is father of petitioner no1 and others in their peaceful living as husband and wife. If such a protection is granted, it may amount to grant the protection against the commission of offence under section 494 and 495 IPC.
It is settled law that writ of mandamus can be issued only if the petitioners have legal right to the performance of legal duty by the party against whom the mandamus is sought.
“In the case petitioner no 1 is Muslim by religion and she has not moved any application to the authority concerned for conversion of her religion under sections 8 and 9 of the Conversion Act. Hence petitioner no1 is living in relationship with petitioner no 2 without obtaining divorce from her husband, that constitutes an offence under sections 494 and 495 IPC and also without complying with the provisions of sections 8 & 9 of the Conversion Act. Hence such a type of criminal act cannot be supported and protected by the Court. Therefore, the petition has no substance and is liable to be dismissed”, the Court further observed while dismissing the petition.