Smt. Aneeta And Another vs State of U.P. And 3 Others

By Ashmit Sen[1] 

In the Allahabad High Court

NAME OF THE CASESmt. Aneeta And Another vs State of U.P. And 3 Others   
CITATIONWRIT – C No. – 14443 of 2021    
DATE OF THE CASE29 July, 2021.
PETITIONERSmt. Aneeta And Another  
RESPONDENTState Of U.P. And 3 Others  
BENCH/JUDGEJustice Kaushal Jayendra Thaker, Justice Subhash Chand
STATUTES INVOLVEDThe Constitution of India, The Hindu Marriage Act
IMPORTANT SECTIONS/ARTICLESConstitution of India – Articles 21 and 22 The Hindu Marriage Act – Section 5  

ABSTRACT

The present case deals with the issue whether a person, who is already married according to Hindu Marriage Act, 1955 can stay with another person and ask for granting protection, while being in the marriage. According to the provisions of the Hindu Marriage Act, bigamy is not legal, and it does not give sanctity to illicit relations. The High Court of Allahabad, in this present case, had rightly given the judgement against the petitioners who were asking for protection to be granted to them by denying granting them such protection, even though they were not married, against respondent no. 4 who was the legally wedded husband of petitioner no. 1.

INTRODUCTION

Marriage is a social practice through which two people and their families unite which gives rise to conjugal rights. The word conjugal means rights which arise between husband and wife after marriage. Marriage is one of the oldest sacraments in the society. It is a universal social institution which brings men and women into family life where they are socially permitted to have children. According to Gillin and Gillin, “Marriage is a socially approved way of establishing a family of procreation.”[2] The Merriam-Webster Dictionary defines Marriage as “the state of being united as spouses in a consensual and contractual relationship recognized by law.”[3]

The essential elements of a valid Hindu Marriage have been given in Section 5 of Hindu Marriage Act, 1955 which states that a marriage may be solemnized between any two Hindus, if the following conditions are fulfilled[4], namely: –

1. neither party has a spouse living at the time of the marriage;

2. at the time of the marriage, neither party –

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity.

3. the bridegroom has completed the age of twenty-one years and the bride has completed the age ofeighteen years at the time of the marriage;

4.  the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two;

5.  the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.

In the present case, respondent no.4, Devendra Kumar was the legally wedded husband, according to the Hindu Marriage Act of 1955, of the petitioner no.1, Smt. Aneeta, who was not married to petitioner no.2, but she was having a relationship with him because of apathetic and torturing behaviour of respondent no.4. While she was living with him, respondent no.4 had tried to endanger their peaceful lives. Hence, both of them approached the court, as petitioners, for granting them protection under Articles 21 and 22 of the Constitution of India by issuing a writ of mandamus against Respondent No. 4 to which the Court had denied granting such protection as it cannot legalise the illicit relationship between petitioner no. 1 and petitioner no. 2 while petitioner no. 1 remained married to respondent no. 4 according to the provisions of Hindu Marriage Act, 1955.

FACTS OF THE CASE

The fact of the case is that respondent no.4, Devendra Kumar was the legally wedded husband, according to the Hindu Marriage Act of 1955, of the petitioner no.1, Smt. Aneeta, who was not married to petitioner no.2, but she was having a relationship with him because of apathetic and torturing behaviour of respondent no.4. While she was living with him, respondent no.4 had tried to endanger their peaceful lives. Hence, both of them approached the court, as petitioners, for granting them protection under Articles 21 and 22 of the Constitution of India by issuing a writ of mandamus against Respondent No. 4.

ISSUES RAISED BEFORE THE COURT

  1. Whether the Court can grant protection to Petitioner No. 1 and Petitioner No. 2, who are in an illicit relationship, under Articles 21 and 22 of the Constitution of India by issuing a writ of mandamus against Respondent No. 4, who is the legally wedded husband of Petitioner No. 1 according to the provisions of the Hindu Marriage Act, 1955?

ARGUMENTS FROM THE PETITIONER SIDE

Learned counsel for the petitioners had submitted that respondent no.4 was the husband of the petitioner no.1, Smt. Aneeta, who was not married to petitioner no.2, but she was having relationship with him because of apathetic and torturing behaviour of respondent no.4 but as she was living with him, respondent no.4 had tried to endanger their peaceful lives. Hence, it was argued that they should be protected, and the relief prayed before the court was to issue a writ, order or direction in the nature of mandamus commanding the respondent no.2 to protect and enforce the fundamental right of the petitioners to life and personal liberty as guaranteed under Article 21 and 22 of the Constitution of India and to ensure the safety and protection of the petitioners as well to ensure no further hindrance was caused in their happy marital life, and the petitioners should not be harassed in any way by the local police or by the respondent no.4 or his associates in any manner whatsoever.

ARGUMENTS FROM THE RESPONDENT SIDE

The Counsel for the respondent side had argued that a person who was already married under the Hindu Marriage Act, 1955 cannot seek protection of this Court for an illicit relationship, which was not within the purview of social fabric of this country and hence, protection under Articles 21 and 22 of the Constitution of India by issuing a writ of mandamus against Respondent No. 4 should not be granted to the petitioners.

RELATED PROVISIONS

  • The Constitution of India, 1950:

Article 21 – “Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.”[5]

Article 22 – “Protection against arrest and detention in certain cases

  1.  No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.[6]
  2.  Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.[7]
  3.  Nothing in clauses (1) and (2) shall apply (a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.[8]
  4. No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention.[9]
  5. When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order[10].
  6.  Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.[11]
  7. Parliament may by law prescribe –
  8.  the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub clause (a) of clause (4).[12]
  9. the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention[13]; and
  10.  the procedure to be followed by an Advisory Board in an inquiry under sub clause (a) of clause (4) Right against Exploitation.[14]”
  • The Hindu Marriage Act, 1955:

Section 5 – “Conditions for a Hindu marriage. – A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely: –

(i) neither party has a spouse living at the time of the marriage[15];

[(ii) at the time of the marriage, neither party –

(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or

(b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or

(c) has been subject to recurrent attacks of insanity [***];][16]

(iii) the bridegroom has completed the age of[twenty-one years] and the bride, the age of[eighteen years] at the time of the marriage[17];

(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two[18];

(v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two.[19]”

JUDGEMENT

The High Court of Allahabad had relied upon the case of Smt. Premwati and another v. State of U.P. and others[20], where such petition was rejected. The Court, in this present case, had stated that – “We hold that we are not against granting protection to people who want to live together irrespective of the fact as to which community, caste, or sex they belong to. If Devendra Kumar, who is legally wedded husband of petitioner no.1 has barged into the house of petitioner no.2, it is in the realm of criminal dispute for which she can move to the criminal machinery available in the country. But none law abiding citizen who is already married under the Hindu Marriage Act, can seek protection of this Court for illicit relationship, which is not within the purview of social fabric of this country. The sanctity of marriage pre-supposes divorce. If she has any difference with her husband, she has first to move for getting separated from her spouse as per law applicable to the community if Hindu Law does not apply to her.”[21]

The Court, hence, did not permit the parties to such illegality as in future, petitioners might approach this court conveying that the judges have sanctified illicit relations. The Court further stated that live-in-relationships could not be at the cost of social fabric of this Country and by directing the police to grant protection to the petitioners in this case, might indirectly show that the judges had given their assent to such illicit relations.

Hence, the Court dismissed the petition with an exemplary cost of Rs.5,000/- to be deposited by the petitioners within two weeks from the date the judgement was given. However, the Court also made it clear that the Bench was not against live-in-relationships but was against illegal relations.

CONCLUSION

The High Court of Allahabad had rightly differentiated between live-in relationships and illicit relations and had given its stand that the Bench was not against live-in-relationships but was against illegal relations. The provisions of the Hindu Marriage Act do not allow a person to have illicit relations with another person, while being legally married to someone else. The facts of the present case show that the respondent no. 4, the husband of petitioner no. 1 had tortured her which forced her to live with petitioner no. 2, but the Court rightly cannot grant protection to them as the relationship between petitioner no. 1 and petitioner no. 2 was not legal as Smt. Aneeta (Petitioner No. 1), was still the lawfully wedded wife of respondent no. 4, Devendra Kumar. The court had also rightly pointed out that first, petitioner no. 1 had to move for getting separated from her husband by divorce, then only can the court grant the petitioners protection under Articles 21 and 22 of the Constitution otherwise, in future, there might be several cases of such instance where petitioner might pray for legalising their illicit relations which is not all desirable. Hence, protection could not be granted but the petitioners can move to the criminal machinery available as respondent no. 4 had barged into the house of petitioner no. 2. In my view, this decision is absolutely correct otherwise such cases of praying for legalisation of illicit relationships may happen even more in this country if the High Court would have granted the petitioners protection which might have indirectly given the inference that the Court had sanctified the illicit relationship of the petitioners.

[1] 4th Semester Student at St. Xavier’s University, Kolkata.

[2] Navendu K. Thakur, An Introduction to Sociology, Page 141, 2nd Edition, 2016.

[3] Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/marriage#:~:text=Kids%20Definition-,marriage,relation%20of%20married%20persons%20%3A%20wedlock (Last visited on June 19, 2023).

[4] Dr. Paras Diwan, Family Law, Page 42, 12th Edition, 2021.

[5] The Constitution of India, 1950, Art. 21.

[6] The Constitution of India, 1950, Art. 22(1).

[7] The Constitution of India, 1950, Art. 22(2).

[8] The Constitution of India, 1950, Art. 22(3).

[9] The Constitution of India, 1950, Art. 22(4).

[10] The Constitution of India, 1950, Art. 22(5).

[11] The Constitution of India, 1950, Art. 22(6).

[12] The Constitution of India, 1950, Art. 22(7)(a).

[13] The Constitution of India, 1950, Art. 22(7)(b).

[14] The Constitution of India, 1950, Art. 22(7)(c).

[15] See The Hindu Marriage Act, 1955, Sec. 5(i).

[16] See The Hindu Marriage Act, 1955, Sec. 5(ii).

[17] See The Hindu Marriage Act, 1955, Sec. 5(iii).

[18] See The Hindu Marriage Act, 1955, Sec. 5(iv).

[19] See The Hindu Marriage Act, 1955, Sec. 5(v).

[20]Smt. Premwati and another v. State of U.P. and others, AIR 2021, Writ-C No. 11295 of 2021.

[21] Indian Kanoon, https://indiankanoon.org/doc/32427705/ (Last visited on June 19, 2023).

Tags: , , , , , ,