Renu Agarwal, J
1. 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 directing the respondents not to interfere in the peaceful married life of the petitioners as husband and wife.
2. Heard learned counsel for the petitioners, learned Standing Counsel for State respondents and perused the record.
3. It is submitted that the petitioners are major and they have fallen in love with each other. They wanted to live with each other. Parents of the petitioner No. 1 (respondent No. 4) settled the marriage of petitioner No. 1 with a handicap person against her wishes which was refused by petitioner No.1. The respondent No. 4 started atrocities upon the petitioner No.1 and threatened to kill her therefore she left her house on 20.10.2023 and eloped with petitioner No. 2 with her own sweet will and they are living under the same roof since 20.10.2023. The petitioners No. 1 and 2 belongs to different castes and religion. It is submitted that the petitioners have right to take decision of their life, therefore they started living in relationship.
4. It is further submitted that the respondent No. 4 is interfering in the peaceful living of the petitioners. The petitioner No. 1 made an application before the Senior Superintendent of Police, Gautam Buddh Nagar dated 25.10.2023 stating that she is living in relationship with petitioner No. 2 but respondent No. 4 without any authority of law is trying to interfere in the peaceful living of the petitioners with the help of antisocial elements. The aforesaid application is on record as annexure No. 3, however, no protection has been provided by the police authorities therefore, the present petition is filed.
5. Learned counsel for the petitioners has relied upon the judgment of Supreme Court in the cases of Lata Singh Vs. State of Uttar Pradesh and another (2006) 5 SCC 475; Shafin Jahan Vs. Asokan K.M. and Ors. reported in (2018) 16 SCC 368 to contend that when the petitioners are major they are at liberty to choose partners of their choice irrespective of caste or faith and their choice cannot be interfered with even by their parents. No one including the parents of petitioners have any right to create disturbance in peaceful living of the petitioners.
6. Learned counsel for the petitioners has also relied upon the judgment of Supreme Court in the case of Nandkumar and another Vs. State of Kerala reported at (2018) 16 SCC 620 to contend that the live in relationship is now recognized by the legislature itself and it has found its place under the provisions of Protection of Women from Domestic Violence Act.
7. Learned counsel for the petitioners has also relied upon the judgment of Division Bench of this Court in the case of Kamini Devi Vs. State of U.P Writ C No. 11108 of 2020 and Writ C No.27338 of 2023 Razia and another Vs. State of U.P. to contend that the live in relationship is no offence and if the petitioners are major, they are entitled for living in relationship.
8. Learned Standing Counsel on the other hand submitted that petitioners are interfaith couples and have not complied with the provisions of Sections 8 and 9 of the U.P. Prevention of Unlawful Conversion of Religion Act. No application for conversion has been moved, though the Act came into force on 04.03.2021. It is also submitted that the case laws relied upon by the learned counsel for the petitioners i.e., Lata Singh (supra), Shafin Jahan (supra) will not come to the aid of the petitioners since these pronouncements by the Hon’ble Apex Court are prior in time to the promulgation of the U.P. Prohibition of Unlawful Conversion of Religion Act, 2021.
9. Learned Standing Counsel has relied upon the judgment of Apex Court in the case of Kiran Rawat and Another Vs. State of U.P. to contend that a muslim cannot live in relationship even as per their personal laws and judgment of the Division Bench of this Court passed in the case of Asha Devi and Another Vs. State of U.P. and 3 Others, and opposed the petition.
10. I have heard Shri Umair Alam, learned counsel assisted by Shri Sanjay Srivastava, learned counsel for the petitioners, Shri Ashwini Kumar Tripathi, learned Additional Chief Standing Counsel for the State and perused the record.
11. It is submitted that the petitioners are major and are living in relationship. The petitioners have brought on record the high school marks sheet of petitioner No. 1 wherein her date of birth is recorded as 17.08.2001. The petitioner No. 2 has brought on record his Driving License wherein his date of birth is mentioned as 01.01.2001. The petitioners also belongs to different religion. Both the petitioners fell in love with each other and are living in relationship. Respondent No.4 is interfering in the living in relationship of the petitioners. Petitioner No. 1 has moved an application to the Senior Superintendent of Police, Gautam Buddh Nagar for protection of herself as well as petitioner No. 2 from the respondent No. 4 but no action has been taken by the police authorities in the matter hence, the present writ petition has been filed.
12. Learned counsel for the petitioners has relied upon the law laid down by Supreme Court in the case of Lata Singh Vs. State of Uttar Pradesh and another (2006) 5 SCC 475 to contend that once a person has attained majority, he/she can live with whomsoever it like and their choice cannot be interfered with by anyone. It would be apposite to reproduce the relevant part of the judgment of Supreme Court in the case of Lata Singh (supra ) for convenience and ready reference:
"17. The caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system. However, disturbing news are coming from several parts of the country that young men and women who undergo inter-caste marriage, are threatened with violence, or violence is actually committed on them. In our opinion, such acts of violence or threats or harassment are wholly illegal and those who commit them must be severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter- religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law. We sometimes hear of `honour' killings of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shameful acts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism."
13. To contend the freedom of an individual who has attained majority to live with anyone whom he/she like reliance is also placed by learned counsel for the petitioners on the judgment of Supreme Court in the case of Shafin Jahan Vs. Asokan K.M. and Ors. reported in (2018) 16 SCC 368, wherein the Supreme Court emphasized due importance to the right of choice of an adult person, which the Constitution accords to an adult person. The relevant part of the judgment of the Supreme Court in the case of Shafin Jahan (Supra) is reproduced below:-
"52. It is obligatory to state here that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteed freedom. The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible. Faith of a person in intrinsic to his/he meaningful existence. To have the freedom of faith is essential to his/her autonomy; and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow. It has to be remembered that the realisation of a right is more important than the conferment of the right. Such actualisation indeed ostracises any kind of societal notoriety and keeps at bay the patriarchal supremacy. It is so because the individualistic faith and expression of choice are fundamental for the fructification of the right. Thus, we would like to call it indispensable preliminary condition"
14. Learned counsel for the petitioner has also placed reliance on the judgment of Supreme Court in the case of Nandkumar and another Vs. State of Kerala reported at (2018) 16 SCC 620 to contend that the live in relationship is now recognized by the legislature itself and it has found its place under the provisions of Protection of Women from Domestic Violence Act.
15. Reliance is also placed by the learned counsel for the petitioner on the decision of Division Bench of this Court in the case of Kamini Devi Vs. State of U.P Writ C No. 11108 of 2020 and Writ C No.27338 of 2023 Razia and another Vs. State of U.P. decided on 05.09.2023 to contend that the live in relationship is no offence and the petitioners if they are major are entitled for their living in relationship.
16. Learned Standing Counsel on the has relied upon the decision of Supreme Court in the case of Kiran Rawat(Supra), to contend that a muslim cannot live in relationship as per their personal law there is no place for living in relationship, the relevant part of judgment of Supreme Court in the case of Kiran Rawat (supra) is reproduced below:
"21. However, in Muslim law no recognition can be given to sex outside marriage. "Zina" which has been defined as any sexual intercourse except that between husband and wife includes both extramarital sex and premarital sex and is often translated as fornication in English. Such premarital sex is not permissible in Islam. In fact any sexual, lustful, affectionate acts such as kissing, touching, staring etc. are "Haram" in Islam before marriage because these are considered parts of "Zina" which may lead to actual "Zina" itself. The punishment for such offence according to Quran (chapter 24) is hundred lashes for the unmarried male and female who commit fornication together with the punishment prescribed by the "Sunnah" for the married male and female that is stoning to death." It is observed that in Muslim Law living-in-relationship is not permitted."
17. The judgments of Supreme Court relied upon by the learned counsel for the petitioners in the case of Lata Singh (supra) and Shafin Jahan (supra) though guarantee the fundamental right of choice of an adult person while marrying with inter-faith persons, however, will not come to the aid of the petitioners as after the promulgation of the U.P. Prohibition of Unlawful Conversion of Religion Act one cannot freely move with another except in accordance with the procedure prescribed in Section 8 and 9 of the aforesaid Act, or by marriage under the Special Marriage Act. Here in this case, it is an admitted case of the petitioners that they are living in relationship and there is nothing on record they they have moved any application for marriage under the Special Marriage Act. Learned counsel for the petitioners may contend that the petitioners herein are only living in relationship and as such compliance of Sections 8 and 9 of the U.P. Prohibition of Unlawful Conversion of Religion Act is not necessary for the petitioners.
18. In refutation to the aforesaid contention, reference may be made to the explanation attached to Section 3 of the U.P. Prohibition of Unlawful Conversion of Religion Act which runs as under:
“3(1) No person shall convert or attempt to convert, either directly or otherwise, any other person from one religion to another by use or practice of misrepresentation, force, undue influence, coercion, allurement by any fraudulent means. No person shall abet, convince or conspire such conversion.
Explanation:- For the purposes of this sub-section conversion by solemnization of marriage or relationship in the nature of marriage on account of factors enumerated in this sub-section shall be deemed included”
19. In the case of D.Velusamy Vs. D. Patchajammal reported in (2010) 10 SCC 469, Supreme Court while considering the definitions given under Section 2 of the Domestic Violence Act dealt with the definition of "domestic relationship", as a relationship in the nature of marriage. It laid down the following requisite criteria in the relationship in the nature of marriage:-
"(2) The following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential-
(a) the length of the relationship between them.
(b) whether the 2 persons have resided together
(c) the nature and extent of common residence
(d) whether there is, or has been, a sexual relationship between them
(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between them
(f) the ownership, use and acquisition of their property (including property the own individually);
(g) the degree of mutual commitment by them to a shared life;
(h) whether they care for and support children
(I) the reputation, and public aspect, of the relationship between them.”
20. While dealing with Kamini Devi (supra) Division Bench of this Court quoted Indra Sharma Vs. V.K.V Sharma reported in (2013) 15 SCC 755 as follows.
46. The Domestic and Family Violence Protection Act, 2012 (Queensland) has defined the expression "couple relationship" to mean as follows":
"18. Meaning of couple relationship.-
1) * * *
2) In deciding whether a couple relationship exists, a court may have regard to the following -
2) the circumstances of the relationship between the persons, including, for example-
(i) the degree of trust between the persons; and
(ii) the level of each person's dependence on, and commitment to, the other person;
b) the length of time for which the relationship has existed or did exist;
c) the frequency of contact between the persons;
d) the degree of intimacy between the persons.
3) Without limiting sub-section (2), the court may consider the following factors in deciding whether a couple relationship exists-
a) Whether the trust, dependence or commitment is or was of the same level;
b) Whether one of the persons is or was financially dependent on the other;
c) Whether the persons jointly own or owned any property;
d) Whether the persons have or had joint bank accounts;
e) Whether the relationship involves or involved a relationship of a sexual nature;
f) Whether the relationship is or was exclusive.
4) A couple relationship may exist even if the court makes a negative finding in relation to any or all of the factors mentioned in subsection (3).
5) A couple relationship may exist between two persons whether the persons are of the same or a different gender.
6) A couple relationship does not exist merely because two persons date or dated each other on a number of occasions."
47. The Property (Relationships) Act, 1984 of North South Wales, Australia also provides for some guidelines with regard to the meaning and content of the expression "de facto relationship", which reads as follows:
"4 De facto relationships.- (1) For the purposes of this Act, a de facto relationship is a relationship between two adult persons:
(a) who live together as a couple, and
(b) who are not married to one another or related by family.
(2) In determining whether two persons are in a de facto relationship, all the circumstances of the relationship are to be taken into account, including such of the following matters as may be relevant in a particular case:-
(a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.
(3) No finding in respect of any of the matters mentioned in subsection (2) (a)-(i), or in respect of any combination of them, is to be regarded as necessary for the existence of a de facto relationship, and a court determining whether such a relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.
(4) Except as provided by section 6, a reference in this Act to a party to a de facto relationship includes a reference to a person who, whether before or after the commencement of this subsection, was a party to such a relationship."
48. "In Marriage of Lindsay, In re, and Latham v. Hennessey 87 Wn.2d 550 (1976), Pennington v. Pennington, the Courts in United States took the view that the relevant factors establishing a meretricious relationship include continuous cohabitation, duration of the relationship, purpose of the relationship, and the pooling of resources and services for joint projects. The Courts also ruled that a relationship need not be "long term" to be characterized as meretricious relationship. While a long term relationship is not a threshold requirement, duration is a significant factor. Further, the Court also noticed that a short term relationship may be characterized as a meretricious, but a number of other important factors must be present.
49. In Stack v. Dowden [2007] 2 AC 432, Baroness Hale of Richmond said:
"Cohabitation comes in many different shapes and sizes. People embarking on their first serious relationship more commonly cohabit than marry. Many of these relationships may be quite short-lived and childless. But most people these days cohabit before marriage..... So many couples are cohabiting with a view to marriage at some later date - as long ago as 1998 the British Household Panel Survey found that 75% of current cohabitants expected to marry, although only a third had firm plans: John Ermisch, Personal Relationships and Marriage Expectations (2000) Working Papers of the Institute of Social and Economic Research: Paper 2000-27. Cohabitation is much more likely to end in separation than is marriage, and cohabitations which end in separation tend to last for a shorter time than marriages which end in divorce. But increasing numbers of couples cohabit for long periods without marrying and their reasons for doing so vary from conscious rejection of marriage as a legal institution to regarding themselves ''as good as married' anyway: Law Commission, Consultation Paper No 179, Part 2, para 2.45."
50. In MW v. The Department of Community Services [2008] HCA 12, Gleeson, CJ, made the following observations:
"Finn J was correct to stress the difference between living together and living together ''as a couple in a relationship in the nature of marriage or civil union'. The relationship between two people who live together, even though it is a sexual relationship, may, or may not, be a relationship in the nature of marriage or civil union. One consequence of relationships of the former kind becoming commonplace is that it may now be more difficult, rather than easier, to infer that they have the nature of marriage or civil union, at least where the care and upbringing of children are not involved."
51. In Lynam v. The Director-General of Social Security (1983) 52 ALR 128, the Court considered whether a man and a woman living together ''as husband and wife on a bona fide domestic basis' and Fitzgerald, J. said:
"Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test."
21. In view of the aforesaid case law the petitioners did not disclose that they are in any domestic relationship or voluntarily living held themselves out to the world as being akin to spouses for a significant period of time. There is nothing on record primarily to show that they are living as husband and wife except their affidavit. No proof of joint account, financial security, joint property or joint expenditure is produced before this Court. Petitioners have not applied for conversion so far.
22. A Division Bench of this Court in the case of Asha Devi and Another vs. State of U.P. and Others passed in Writ (C) No.18743 of 2020, the Hon'ble Division Bench of this Court formulated two questions as under:-
"(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 wedded wife of someone else and has not taken divorce sofar ?
(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 I.P.C. ?"
23. In the judgment of Asha Devi (Supra), Hon'ble Division Bench of this Court has discussed the judgment of Hon'ble Apex Court in the case of "D. Velusamy Vs. D. Patchaiammal", in which the Hon'ble Apex court held that:-
"32. In our opinion not all live in relationships will amount to a relationship in the nature of marriage to get the benefit of the Act of 2005. To get such benefit the conditions mentioned by us above must be satisfied, and this has to be proved by evidence.
If a man has a `keep' whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in our opinion, be a relationship in the nature of marriage'."
(Emphasis supplied)
24. In the judgment of Asha Devi (Supra), the Division Bench of this Court on the basis of various judgments of High Court held that following relationship are not recognized or approved as live-in-relationship:-
"(a) Concubine can not maintain relationship in the nature of marriage vide paras 57 & 59 of the judgment of Hon'ble Supreme Court in Indra Sarma Vs. V. K. V. Sarma.
(b) Polygamy, that is a relationship or practice of having more than one wife or husband at the same time, or a relationship by way of a bigamous marriage that is marrying someone while already married to another and/or maintaining an adulterous relationship that is having voluntary sexual intercourse between a married person who is not one's husband or wife, cannot be said to be a relationship in the nature of marriage vide para 58 of judgment in Indra Sarma's Case (supra) & A Subhash Babu Vs. state of A.P.4 (paras 17 to 21, 27, 28 & 29). Polygamy is also a criminal offence under Section 494 & 495 I.P.C., vide Shayara Bano Vs. Union of India 5 (paras 299.3).
(c) 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, inspite of his conversion to some other religion would be liable to be prosecuted for the offence of bigamy, vide Lily Thomas and another Vs. Union of India and others6 (Para 35). In para 38 of the aforesaid judgment, Hon'ble Supreme Court observed as under:-
"38. Religion is a matter of faith stemming from the depth of the heart and mind. Religion is a belief which binds the spiritual nature of man to a super-natural being; it is an object of conscientious devotion, faith and pietism. Devotion in its fullest sense is a consecration and denotes an act of worship. Faith in the strict sense constitutes firm reliance on the truth of religious doctrines in every system of religion. Religion, faith or devotion are not easily interchangeable. If the person feigns to have adopted another religion just for some worldly gain or benefit, it would be religious bigotry. Looked at from this angle, a person who mockingly adopts another religion where plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted to take advantage of his exploitation as religion is not a commodity to be exploited. The institution of marriage under every personal law is a sacred institution. Under Hindu Law, Marriage is a sacrament. Both have to be preserved."
(Emphasis supplied)
(d) If both the persons are otherwise not qualified to enter into a legal marriage including being unmarried, vide D Velusamy Vs. D Patchaiammal (supra) (para 31)."
25. In the judgment of Asha Devi (Supra), Hon'ble Division Bench of this Court has also discussed the judgment of Hon'ble Apex Court in the case of "Director of Settlement, A.P. Vs. M.R. Apparao, in which the Hon'ble Apex court has considered the High Court's power for issuance of mandamus and held as under:-
"17. ................. 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 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. ...............…"
26. The Hon'ble Apex Court in the case of "Kalyan Singh Vs. State of U.P., AIR 1962 SC 1183 held as under:-
"Applying the principles of issuance of writ of mandamus on the facts of the present case, we find that the 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. The petitioners do not have legally protected and judicially enforceable subsisting right to ask for mandamus."
27. Thus in view of the above discussions, it is clear that there is nothing on record to show that the petitioners fulfil the criteria for a domestic relationship as they are not living for a long period and as spouse, no proof of joint account, financial security, joint property or joint expenditure is produced before this Court, further no compliance of Section 8 and 9 of the U.P. Unlawful Conversion of Religion Act has been made by the petitioners, petitioners have not applied for conversion so far there is nothing on record to show that any application for marriage under the special marriage act has been moved by the petitioners.
28. The relationship of the petitioners cannot be called as a relationship akin to marriage, entitling them for protection and the fact that personal law of the petitioner No.2 also does not warrant the petitioner No. 2 to live in relationship. Right to freedom or right to personal liberty is not as absolute or unfettered right, it is qualified by some restrictions also. Petitioners cannot be provided protection of law in contravention of law of land.
29. In view of the above discussions the writ petition lacks merits and is accordingly dismissed.
