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1974 DIGILAW 64 (PAT)

Trilokchand Modi v. Om Prakash Jaiswal

1974-03-25

MADAN MOHAN PRASAD

body1974
Madan Mohan Prasad, J. This appeal by the defendants is directed against an order of ad interim injunction 'passed in a suit for restitution of conjugal rights. 2. Briefly stated, the plaintiff alleges in the suit that the first defendant who is the daughter of the second one, was married to him according to the Hindu rites at Benares on the 21st of April 1973 and they lived together like husband and wife until the 8th of, June, 1973. The second defendant, however, filed a false case alleging that the plaintiff' had kidnapped the first defendant as a result of which a warrant of arrest was issued against the plaintiff but he surrendered and was enlarged on bail. Thereafter a show of recovery of the first defendant was made at Jharia and since then the second defendant has been keeping her under his guardianship and not allowing her to meet the plaintiff. The second defendant had further won over his daughter as a remit of which she disowned the marriage. Hence the suit for the purpose of restitution as also for the grant of a permanent injunction against the first defendant from marrying and against the second defendant from getting her married to anybody else. 3. The defendants' case, however, is a denial of the alleged marriage and to the effect that the plaintiff had kidnapped the first defendant some times during the night between the' 15th and 16th of April, 1973 as a result of which a first information report was lodged with the police the next day. Warrant of arrest was issued for the custody of the plaintiff as also the first defendant, as a result of which she was recovered from the house of the father of the plaintiff at Jharia. The present case is said to be only for the purpose of creating a defence in the criminal case aforesaid. 4. During the pendency of the suit the plaintiff filed an application for grant of an ad interim injunction. Notice thereof was issued to the defendants and after hearing the parties the trial court has passed an order granting temporary injunction. Hence this appeal. 5. Learned counsel for the appellants has raised the following points. 4. During the pendency of the suit the plaintiff filed an application for grant of an ad interim injunction. Notice thereof was issued to the defendants and after hearing the parties the trial court has passed an order granting temporary injunction. Hence this appeal. 5. Learned counsel for the appellants has raised the following points. Firstly, that the Hindu Marriage Act creates special jurisdiction in the "district court" which is a District Judge and such a court, in the absence of any provision to that effect contained in the Act aforesaid, has no 'jurisdiction to grant injunction. Secondly, that a suit for permanent injunction could not lie within the framework of the Act aforesaid and when the' ultimate prayer of permanent injunction was beyond the jurisdiction of the court, even temporary injunction could not be granted. Thirdly, that in the circumstances of the case the trial court has committed errors of record in respect of some of the documents and has come to wrong finding of facts which vitiates the order aforesaid. 6. There is substance in all the contentions put forward. It cannot be disputed that the Hindu Marriage Act, 1955 is an amending and codifying Act relating to marriage amongst Hindus.' From section 4 of the Act it is clear, that it has no overriding effect and any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Act ceases to have effect with respect to any matter for which provision is made in the Act. Section 4 of the Act provides as follows : "Save as otherwise "expressly provided in this Act; (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act: (b) any other law, in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act." Whatever may have been the rights of Hindus earlier in respect of matters covered by the provisions of this Act, after the commencement of this Act such matters are to be governed entirely by this act notwithstanding any text of Hindu law or any custom or usage or any other law in force earlier. It is thus obvious that it is a self contained enactment. 7. It cannot also be disputed that for certain purposes what is called the "district court", has, been given the right to adjudicate. They are matters of restitution of conjugal rights under section 9, judicial separation under section 10, declaration of void and voidable marriages as nullity under sections 11 and 12 and dissolution of marriages under section 13. It appears from section 19 of the Act that every petition under this Act has to be presented to the district court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnised or the husband and wife reside or last resided together. Section 20 relates to contents and verification of such petitions. Section 21 makes the provisions of the Code of Civil Procedure applicable to such proceedings subject to the provisions contained in the Act itself, Section 23 relates to the decree to be passed in such proceeding. Section 28 provides for appeal from such decrees, It will thus appear that the Act contains provisions to show as to what would be the subject matter of petitions before the district court and what would be the procedure in respect of the adjudication of the matters in dispute. Undoubtedly therefore, the Code purports to be self contained as far as possible and in fact that was the purpose of the Act, namely, to codify the law on the point. 8. Undoubtedly therefore, the Code purports to be self contained as far as possible and in fact that was the purpose of the Act, namely, to codify the law on the point. 8. Keeping in view the aforesaid, the question arises whether there is any provision in the Act which would enable the plaintiff to get the relief of permanent injunction in the present suit. From what I have said earlier it is clear that an application for an order of permanent injunction is not envisaged by the Act aforesaid. The only provision which enable the district court to issue an order of injunctions is contained in sub-section (5) of section 6 which is as follows: "Nothing in this Act shall affect the jurisdiction of a court to prohibit by injunction an intended marriage, if in the interests of the bride for whose marriage consent is required, the court thinks it necessary to do so." A reference may be made to section 5 of the Act for the purpose of showing that a marriage may be solemnised between any two Hindus, if the conditions mentioned therein are fulfilled. One of the conditions, which is clause (vi) of the aforesaid section, is that "where the bride has not completed the age of eighteen years, the consent of her guardian in marriage, if any, has been obtained' for the marriage." Under section 6, sub section (i) provides the list of persons entitled to give such consent as guardian. Sub-section (2), provides that such a guardian himself must have completed the age of 21 years, sub section (3) provides that if the guardian entitled to give consent refuses or is for any cause unable or unfit to act as such, the person next in order shall be entitled to be the guardian. Subsection (4) provides that in the absence of any such person as referred to in sub-section (1) the consent of a guardian shall not be necessary for a marriage under this Act. Then comes sub section (5) which has been quoted above. It will thus appear that apart from the cases of applications for different purposes mentioned earlier, there may be a petition asking the court to grant an injunction against the intended marriage of a girl who has not completed the age of 18 years, and if in her interest the court thinks it necessary, it may do so. It will thus appear that apart from the cases of applications for different purposes mentioned earlier, there may be a petition asking the court to grant an injunction against the intended marriage of a girl who has not completed the age of 18 years, and if in her interest the court thinks it necessary, it may do so. This is thus one more relief in addition to those mentioned in sections 9, 10, 11, 12 and 13. The result is that there is no provision in the Act which enables a person to file a petition for permanent injunction against the intended marriage to a second person of the wife of one person if she is above the age of 18 years. The conclusion is thus inescapable that a district court has no jurisdiction to grant a permanent injunction restraining such a marriage. 9. It is true that section 17 of the Act provides that a marriage between two Hindus after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living and make the provisions of section 494 & 495 of the Indian Penal Code applicable. It, therefore, seeks to provide the punishment for bigamy. There is, however, no provision in the Code which seeks to enable the court to issue an injunction against such bigamy. An application of this nature, therefore, does not come within the four corners of the Act and is not maintainable. 10. In the present case the plaintiff wants, apart from the relief of restitution of conjugal right, a permanent injunction against the girl and her father from her marrying any other person. The application so far as this prayer is concerned, must be held to be not maintainable. 11. Learned counsel has referred to a Bench, decision of this Court in the Case of Uma Shanker Prasad Singh V Smt. Radha Devi and others AIR 1967 Pat 220. In that case the application had been filed by the wife for the grant of an injunction restraining the husband from taking a second wife. The learned judges held that such an application was not maintainable in view of the provisions of the Act. It makes little difference whether the application is filed by wife or by the husband. Unlike that case in the instant case it has been filed by the alleged husband. The learned judges held that such an application was not maintainable in view of the provisions of the Act. It makes little difference whether the application is filed by wife or by the husband. Unlike that case in the instant case it has been filed by the alleged husband. 12. It is also true that when the ultimate relief prayed for in the suit is beyond the jurisdiction of the court, an ad-interim relief in aid of the ultimate relief to be passed thereafter, cannot be granted. In other words, if the application were not maintainable for grant of permanent injunction, no relief by way of grant of ad interim injunction could be given. In the case of Muhanmad Yamin V. Razia Begam ILR 42 All 184 a Muslim husband has filed a suit for restitution of conjugal rights against his wife who in her turn had alleged that she had repudiated the marriage and during the pendency of the appeals an application had been filed by the husband for grant of an injunction against the relatives and the wife against their giving her away in marriage to anyone before the disposal of the appeal. The learned Judges said that the prayer amounted "virtually to an injunction not to commit adultery." They held that the Court ought not to interfere in the manner suggested. In the case of K.P.M. Aboobucker V.K. Kunhameo and others. AIR 1958 Mad. 287 a Division Bench of that Court held that an interim relief granted during the pendency of a suit should not be of greater scope than what could be granted in the suit itself. 12. Learned counsel has further urged in this connection that the petition for ad interim injunction is not covered either by rule 1 or 2 of Order 39 of the Code of Civil Procedure. There can be no dispute that rule 1 has no application because it refers to property. Rule 2, however, refers to a breach of contract or other injury of any kind. In the case of Muhammad Yamin (supra) the argument was that the injunction sought for was for restraining the defendant from committing a breach of the contract of marriage between the parties. The learned Judges, however, said that "it would be doing some violence to the language of the rule to bring this application within its scope". In the case of Muhammad Yamin (supra) the argument was that the injunction sought for was for restraining the defendant from committing a breach of the contract of marriage between the parties. The learned Judges, however, said that "it would be doing some violence to the language of the rule to bring this application within its scope". It is not necessary in the instant case for me to express any opinion on the question whether such an application would come within rule 2 of Order 39 of the Code:, for the simple reason that the instant case is one which is governed by a special Act which does not contain any provision for the grant of the relief of permanent injunction. 13. As a result of the discussion aforesaid it is quite clear that the first two contentions of learned counsel must be accepted in this case with the result that the court below had no jurisdiction to pass the impugned order of ad interim injunction. 14. In view of what is said above, it is not necessary to discuss the other contention, but I would do well to point out, for the benefit of the court below, the argument raised. Firstly, it is said that the learned District judge has committed an error in reading the certificate granted by the Special authorities. The certificate which has been filed before the court below and, as appears from one of the orders of the court below, had been returned to the appellant, and has been produced in this court shows the year of birth of the girl as 1959, but the court below has read it as 1956. This was a material error on the question of determination of the age of the girl. The second error pointed out is that the court below seems to have taken a document to be the marriage certificate issued by the Registrar of Marriages, of a marriage registered under the provisions of section 8 of the Hindu Marriage Act. In fact this document is an agreement executed by the plaintiff and the first defendant recognising that they had been married to each other. The document, therefore, contains the statement of the parties themselves and not of the Registrar of Civil Marriage. 5. In the result, the appeal is allowed and the order passed by the court below is set aside. The document, therefore, contains the statement of the parties themselves and not of the Registrar of Civil Marriage. 5. In the result, the appeal is allowed and the order passed by the court below is set aside. In the circumstances of this case there will be no order for costs. Appeal allowed.