This article is for educational and legal awareness purposes only. It does not constitute legal advice or solicitation. Please consult a qualified advocate for advice on specific legal matters.
Overview
A recurring writ petition before the Allahabad High Court asks for one thing: a direction that the police protect a live-in couple from interference by family members or others. Ordinarily, courts have shown little hesitation in granting such protection to consenting adults. The picture changes when one partner’s earlier marriage has not been legally dissolved. Does the subsisting marriage disentitle the couple to protection altogether, or does the constitutional duty to protect life and liberty under Article 21 of the Constitution of India operate regardless of the relationship’s legality or morality?
The Allahabad High Court has answered this question differently in different cases. This article sets out both lines of authority, the reasoning behind each, and how the split affects the way such petitions are drafted and argued. It does not predict the outcome of any pending or future matter.
The Statutory Backdrop
A person who marries again while an earlier spouse is living commits the offence of bigamy — today under Section 82 of the Bharatiya Nyaya Sanhita, 2023 (BNS), the successor to Sections 494 and 495 of the Indian Penal Code, 1860 (IPC). A live-in relationship, by itself, is not a marriage and does not attract Section 82. But where a protection petition effectively asks a court to sanction one partner living as husband or wife with a person other than the undissolved spouse, the bigamy provision becomes relevant to how a bench frames the case — is the court being asked merely to prevent harm to two adults, or is it being asked to give judicial cover to conduct the penal law disapproves of?
The two lines of Allahabad High Court authority answer that framing question differently.
Line One — No Protection Where the Earlier Marriage Subsists
The older and more established line holds that a subsisting, undissolved marriage defeats the petition.
In Asha Devi and another v. State of U.P. and 3 Others (WRIT-C No. 18743 of 2020, decided 1 December 2020), a Division Bench of Justice Surya Prakash Kesarwani and Justice Dr. Yogendra Kumar Srivastava considered a petition where petitioner no. 1 was the legally wedded wife of another man and had not obtained a divorce. The Bench framed two questions: whether protection could be granted when petitioner no. 1 remained married to someone else without a divorce, and whether such protection could be granted under Article 226 of the Constitution when the couple’s cohabitation could itself attract Sections 494/495 IPC. The Court held that, once the marriage subsisted, the couple’s relationship fell outside the concept of a “live-in relationship” or a “relationship in the nature of marriage,” that the cohabitation may constitute an offence under Sections 494/495 IPC, and that a writ of mandamus cannot be issued to defeat a statutory provision, including a penal provision. The petition was dismissed.
This reasoning was reaffirmed in Sonam and another v. State of U.P. and 3 Others, 2025 SCC OnLine All 7539, decided by Justice Vivek Kumar Singh on 7 November 2025. There too, the woman remained married; her divorce petition had been filed only after the Court had directed her to do so, and it remained pending without a decree. The Court held that a person already married under the Hindu Marriage Act cannot invoke the Court’s protective jurisdiction for a relationship that would amount to protecting conduct falling within Sections 494/495 IPC, and noted the absence of indicators — joint finances, shared property, sustained cohabitation — that might otherwise support a “relationship in the nature of marriage.” No enforceable legal right, the Court held, meant no basis for a mandamus.
The common thread in this line: a subsisting marriage is treated as creating a competing, statutory right belonging to the other spouse, and a protection writ cannot be used, even indirectly, to shield conduct that the law separately criminalises.
Line Two — Article 21 Protection Regardless of the Relationship’s Morality
A second, more recent line takes a narrower view of what a protection petition actually asks for — safety from third-party violence, not judicial approval of the relationship itself.
In Anamika and another v. State of U.P. and 3 Others, a Division Bench of Justice J.J. Munir and Justice Tarun Saxena (order dated 25 March 2026) dealt with a couple from Shahjahanpur where the man was already married. The woman’s family had lodged an FIR alleging she had been “lured away,” and the couple alleged threats amounting to a risk of honour killing. The Bench held that the man’s marital status, by itself, does not create a prosecutable offence merely because an adult woman has chosen, of her own free will, to live with him — “morality and law have to be kept apart.” Relying on the Supreme Court’s directions in Shakti Vahini v. Union of India, (2018) 7 SCC 192, on the police’s constitutional duty to protect couples from vigilante and family interference, the Court directed that the petitioners not be arrested in connection with the FIR, restrained the woman’s family from contacting or harming them, and made the Superintendent of Police personally responsible for their safety.
This line traces back to the Supreme Court’s own reasoning in Lata Singh v. State of U.P., (2006) 5 SCC 475, where the Court held that consenting adults have a right to live together without interference from family or society, and directed police to act against anyone who threatens or harasses them. Lata Singh did not concern a subsisting marriage on either side, but its core principle — that the police-protection writ exists to prevent harm to life and liberty, not to certify the legality of a relationship — is what Line Two applies even where one partner remains married.
Reconciling — Or Not — the Two Lines
The two lines are not easily reconciled on principle, but they can often be distinguished on the facts and on how the relief is sought.
Line One cases have typically involved petitions asking the Court to recognise the couple as effectively living “as husband and wife,” without pointing to a specific, documented threat — inviting the Court to bless the cohabitation itself. Line Two cases have typically involved a concrete threat to safety, sometimes backed by an FIR or evidence of an honour-killing risk, where the relief sought is protection from a third party’s violence rather than validation of the relationship’s status.
There is also a doctrinal point worth flagging. The Supreme Court, in Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755, held that a bigamous or adulterous relationship — one where both parties know that one of them is already married — does not qualify as a “relationship in the nature of marriage” for the purpose of claiming maintenance and other reliefs under the Protection of Women from Domestic Violence Act, 2005. That holding concerns a different statute and a different remedy (maintenance under the DV Act), not a police-protection writ under Article 226. Even so, Line One benches draw on the same underlying logic — that the law does not extend the privileges of a marriage-like relationship to a bigamous one — while Line Two benches treat the two questions (protection from harm, and matrimonial/maintenance status) as legally distinct.
Practical Points for Litigants (Educational)
- How a protection petition is framed matters. A petition that asks the Court to recognise the couple as living “as husband and wife” invites the Section 494/495 (now Section 82 BNS) objection under Line One. A petition anchored in a specific, evidenced threat to life or safety — an FIR, documented threats, a risk of violence — sits closer to the reasoning applied in Line Two.
- The status of any divorce proceedings is relevant. Courts in this line of cases have noted whether a divorce petition has been filed at all, how long it has been pending, and whether it was filed only after judicial prompting.
- The presence or absence of indicators of a genuine relationship — shared finances, cohabitation over time, joint responsibilities — has featured in some orders assessing whether a “relationship in the nature of marriage” exists.
- Because the position is genuinely divided at the High Court level, the outcome can depend heavily on the facts pleaded, the relief sought, and the bench hearing the matter. A person in this situation should consult a qualified advocate before filing, since the drafting of the petition can materially affect which line of authority a court is more likely to apply.
Takeaway
The Allahabad High Court has not spoken with one voice on protection petitions filed by live-in couples where one partner’s earlier marriage remains undissolved. One line, running through Asha Devi (2020) and Sonam (2025), holds that a subsisting marriage defeats the petition because Article 226 cannot be used to shield conduct that Sections 494/495 IPC (now Section 82 BNS) treat as an offence. Another, more recent line, exemplified by Anamika (2026), holds that Article 21 protection against third-party violence is available regardless of the relationship’s legality or social acceptability, distinguishing the question of safety from the question of the relationship’s status. Until the position is authoritatively settled — whether by a larger bench of the High Court or by the Supreme Court — litigants and their counsel must navigate this split case by case, on the specific facts and the specific relief sought.
Useful Resources
- SCC Online Blog — Sonam v. State of U.P. (protection denied without dissolution of marriage)
- LawBeat — Anamika v. State of U.P. (Division Bench grants protection to married man’s live-in partner)
- Indian Kanoon — Asha Devi and another v. State of U.P. and 3 Others (2020)
- Indian Kanoon — Indra Sarma v. V.K.V. Sarma (2013)
- Indian Kanoon — Lata Singh v. State of U.P. (2006)
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