On Monday, the Allahabad High Court ruled that a married woman living with another person without divorcing her husband, will not be entitled for protection from the court. The woman along with her partner had moved the high court seeking protection and no interference in their personal lives as adults.
Case:
Petitioners Asha Devi and Suraj Kumar had moved the court contending that they both are adults “living as husband and wife”, and so no one should interfere in their lives.
Opposing the petition, the state counsel mentioned that Asha Devi was earlier married to Mahesh Chandra and has started living with Suraj Kumar without obtaining divorce which is an offence and thus is not entitled to any protection.
Allahabad High Court
A two-judge bench comprising Justice S P Kesarwani and Justice Y K Srivastava observed that Asha Devi was still the legally wedded wife of Mahesh Chandra. As Asha Devi is married, the act of petitioners particularly Suraj Kumar may constitute an offence under:
- Section 494 (marrying again during lifetime of husband or wife)
- Section 495 (same offence with concealment of former marriage from person with whom subsequent marriage is contracted)
…of the IPC
The court noted,
The writ petition has been filed by the petitioners for protection from interference by others in their living as husband and wife. If the protection as prayed is granted, it may amount to grant protection against the commission of offences.
Such a relationship does not fall within the phrase ‘live-in relationship’ or relationship in the nature of marriage, the judges observed.
Dismissing the petition the court observed,
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 concluded,
The petitioners do not have a legally protected and judicially enforceable subsisting right to ask for mandamus.
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http://voiceformenindia.com/in-the-law/rape-on-pretext-of-marriage-case-6/
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