Panchayati divorce or marriage does not subsist in Law: Punjab & Haryana High Court

 on 06 02 110IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARHCRWP No.7621DATE OF DECISION: 27.01.2021Nishan Singh and another…..PetitionersversusState of Punjab and others .....RespondentsCORAM: HON BLE MRS. JUSTICEALKA SARINPresent:Mr. Sandeep Arora Advocate for the petitioners..ALKA SARIN J.(Oral):Heard through video conferencing.This is a Criminal Writ Petition under Article 226 of theConstitution of India for issuance of a writ in the nature of mandamusdirecting respondent Nos.2 to 4 to safeguard the lives of the petitioners byproviding police help to the petitioners and further directing the respondentNos.3 to 6 not to interfere with the life and liberty of the petitioners.The facts as set out in the petition are that the petitioners areboth major. The date of birth of petitioner No.1 is 22.01.1992 as per hisAadhar Cardand that of petitioner No.2 is 30.07.1985 asper her Aadhar Cardpassed by theDistrict Judge Kapurthala.Learned counsel for the petitioners would contend that thepetitioners are apprehendingdanger to their life and liberty. On a query putto learned counsel for the petitioners as to the marital status of petitionerNo.1 Nishan Singh it has been stated that Annexure P 6 is an affidavitdated 19.06.2017 of the first wife of Nishan Singh wherein she has statedthat she and Nishan Singh had got a Panchayati divorce. Strangely thelearned counsel is relying upon a Panchayati divorce which has norecognition in the eyes of law. There is no decree of dissolution of marriageof petitioner No.1 by a Court of competent jurisdiction and hisfirstmarriage subsists in the eyes of law.The learned counsel has also not beenable to show as to how this Court can provide protection to the petitionersas a couple when petitioner No.1 has not legally divorcedhis earlierspouse. The petitioner Nos.1 and 2 are alleged to have got marriedwithoutpetitioner No.1 obtaining a legally validdivorce from his first wife.TheHindu Marriage Act was enacted in the year 1955. It isan Act to amend and codify the law relating to marriages among Hindus.TheHindu Marriage Act 1955 is a complete Code and provides for theconditions of marriage as well as the procedure for divorce. After theenactment of theHindu Marriage Act 1955 marriages and divorce qua on 06 02 CRWP No.7621 3 Hindus is governed by the procedure as set out in the Hindu Marriage Act 1955. Section 4 of the said Act reads as under :“4.Overriding effect of Act Save as otherwise expresslyprovided in this Actany other law in force immediately before thecommencement of this Act shall cease to have effect inso far as it is inconsistent with any of the provisionscontained in this Act.”In view of Section 4 of the Hindu Marriage Act 1955 allcustoms and usages ceased to have effect.The contention of the learnedcounsel that petitioner No.1 had sought and gota Panchayati divorce isthusan argument which cannot be accepted. In fact the alleged marriageitself between petitioner No.1 and petitioner No.2would beillegal andagainst the provisions of theHindu Marriage Act 1955 inasmuch asthismarriage has been contracted without the petitioner No.1 being legallydivorced. An argument has been raised by the learned counsel for thepetitioners that the petitioners are uneducated people and hence are notaware of the niceties of the law. However with the petition itself thejudgment and decree passed under Section 13 B of theHindu MarriageAct 1955 in the case of petitioner No.2 has been attached which clearly on 06 02 CRWP No.7621 4 goes to show that the petitioners are aware of the law. Even otherwise notbeing aware of the law cannot be a valid defence.Article 21 of the Constitution of India provides that no personshall be deprived of his life and liberty except in accordance with law. Thepetitioners have approached this Court for protection of their life andliberty to live as a couple which cannot be considered in the facts andcircumstances of the present case. However as an individual either of thepetitioners if they apprehend any threat to their life or liberty would beentitled toapproach the Police for redressal of their apprehensionsregarding threats to their life and liberty.In view thereof the present petition is held to be notmaintainable at the behest of the petitioners who have got married withoutpetitioner No.1 being legally and validly divorced. As stated above thepetitioners as individuals would always be at liberty to approach theconcerned Senior Superintendent of Police for redressal of theirapprehensions regarding threats to their life and liberty. Needless tomention in the event of such a representation being made by either of thepetitioners’ in their individual capacity the concerned officer(s) shallconsider the same in accordance with law.Disposed off accordingly. (ALKA SARIN)JUDGE27.01.2021parkashNOTE: Whether speaking non speaking: Speaking Whether reportable: YES NO 

Summary: Panchayati Divorce or Marriage is illegal and would be against the provisions of the Hindu Marriage Act, 1955 which provides for the conditions of marriage and for divorce. Punjab &amp; Haryana High Court gave the judgment in the case of Nishant Singh &amp; others vs. State of Punjab [CRWP No.763 of 2021] by stating the above reasons. The decision was given by the single bench of Hon’ble Justice Alka Sarin. In the above-cited case, a criminal writ petition was filed by the petitioners under Article 226 of the Constitution for issuance of a writ in the nature of mandamus directing the respondents to safeguard the lives of the petitioners by providing police help to the petitioners and further directing the respondents not to interfere with the life and liberty of the petitioners. According to the facts, petitioner no.1 had got married to Mandeep kaur but took panchayati divorce from her. Petitioner no.2 got divorced from her previous husband Harjinder Singh u/s 13 B of the Hindu Marriage Act, 1955. Since, both the petitioners were major; they decided to marry each other. But the Petitioner no.2’s family was against their marriage &amp; relationship. Petitioner contended that they were apprehending danger to their life and property. That’s why; writ petition was filed in the court for police protection. In the High Court, the bench observed that the petitioner’s counsel was relying upon the panchayati divorce of the petitioners which had no recognition in the eyes of law. There was no decree of dissolution of marriage of petitioner no.1 by a Court of competent jurisdiction and his first marriage still subsisted in the eyes of law. Since both the petitioners had got married to each other, it was considered a void marriage because petitioner no.1 didn’t obtain a valid and legal divorce from his first wife. The petitioner’s counsel argued that both of them were uneducated and weren’t aware of the laws subsiding for the procedure of divorce. But the court contended that ignorance of the law is no excuse, not being aware of the law cannot be a valid defence. It was observed that in view of Section 4 of the Hindu Marriage Act,1955, all customs and usages ceased to have an effect, the alleged marriage itself between petitioner No.1 and petitioner No.2 would be illegal and against the provisions of the Hindu Marriage Act, 1955. The High court stated that “Article 21 of the Constitution of India provides that no person shall be deprived of his life and liberty except in accordance with the law. The petitioners have approached this Court for protection of their life and liberty to live as a couple which cannot be considered in the facts and circumstances of the present case. However, as an individual either of the petitioners, if they apprehend any threat to their life or liberty, would be entitled to approach the Police for redressal of their apprehensions regarding threats to their life and liberty”.