'No Legal Right To Seek Protection': Allahabad HC Denies Relief To Married Woman Residing With Live-In Partner Sans Divorce

The Allahabad High Court last week dismissed a protection plea filed by a married woman and her live-in partner while observing that since the lady has not divorced her husband, she and her live-in partner have no legal right to seek protection.

"...as the petitioner No.1 (lady) is not found to have obtained divorce from her husband i.e. respondent No.4, she still will be treated as legally weded wife of respondent No.4 and the petitioners have no legal right to seek protection on the facts of present case," the bench of Justice Ram Manohar Narayan Mishra observed.

Essentially, the lady and her live-in partner, apprehending danger from respondent No.4 (husband of petitioner no. 1/lady), moved the HC stating that they belong to the Hindu religion and have attained the age of majority and are presently living in a live-in relationship out of love and intimacy. 

It was averred in their plea that the lady had to leave her matrimonial home in 2022 due to violence committed by her husband and her in-laws and she started living with petitioner no. 2, both major, when these facts came to the knowledge of her husband and his family members, they became furious and started threatening petitioners.

Lastly, it was submitted that that they want to solemnize their marriage and as soon as petitioner No.1 obtains divorce from her husband, they would get married.

Against the backdrop of these submissions, the Court, at the outset, referred to the Allahabad HC's Judgment in the case of Asha Devi and Another vs. State of U.P. and Others 2020, to observe that the facts of the instant case is squarely covered by the case of Asha Devi Judgment. The Court said:

"This Court in Asha Devi case (supra) observed that 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, in spite of his conversion to some other religion would be liable to be prosecuted for the offence of bigamy".

Further, noting that in the Asha Devi case, the HC had dismissed the plea of a married lady and her live-in partner, the Court said that in the instant case as well, since the lady is not found to have obtained a divorce from her husband, therefore, she still will be treated as legally wedded wife of respondent No.4 and hence, the petitioners have no legal right to seek protection.

The bench also added that it is a "well-settled law that a writ of mandamus can not be issued contrary to law or to defeat a statutory provision including a penal provision and that the petitioners do not have a legally protected and judicially enforceable subsisting right to ask for a mandamus."

With these observations, their plea was dismissed.

Case title - Bharti And Another vs. State Of U P And 3 Others [WRIT - C No. - 5589 of 2023]

Case Citation: 2023 LiveLaw (AB) 228

Click Here To Read/Download Order