Marriage and family

Power of Civil Courts to grant Injunction to Restrain one spouse from entering into Second Marriage

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One of the issues that is regularly encountered before the Civil Court and Family Court in Matrimonial Disputes is “Whether they have jurisdiction to grant an injunction in favour of a spouse to restrain the other spouse from entering into a second marriage, and if the court has jurisdiction than from where this power flows?” I shall try to answer this question in my present article where I will be resorting to provisions of the Civil Procedure Code (CPC), Specific Relief Act (SRA) and Hindu Marriage Act along with case laws of Hon’ble High Courts.

Introduction

Order 39 of CPC[i] deals with the situations where courts are empowered to grant Temporary Injunctions as an Interim Relief in a Suit. SRA, on the other hand, provides the remedy of Permanent or Perpetual Injunction under Section 38[ii]. Under Sub-section (1) of Section 38 of the SRA, 1963, a perpetual injunction may be granted in favour of the plaintiff to prevent the breach of an obligation existing in his favour whether expressly or by implication.

Objections that are raised before the Court

Whenever a suit is filed by one spouse against the other seeking the remedy of Permanent Injunction to restrain the other spouse from committing bigamy/solemnizing second marriage before Civil Court or in an application of interim injunction in a matrimonial proceeding before Family Court, the objections that are raised are as follows:

  1. The obligation the breach of which could be  prevented by a permanent injunction under Section 38 SRA should  be demonstrated to be an obligation, arising  out of  a  contract and  that  no such   obligation   could   arise   or  ever   exists  between  Hindu Spouses, since their marriage is not the off-spring of a contract but is in the nature of a sacrament.
  2. No injunction can be issued under the Specific Relief Act to restrain a Hindu husband from entering into a bigamous marriage because such a marriage is already forbidden by law and an order forbidding an act which is already forbidden is superfluous; furthermore, a bigamous marriage being void an order restraining a person from entering into a marriage which is no marriage in the eyes of the law is meaningless. Such an order, is no more than a moral injunction to the defendant not to commit adultery with another woman, which is clearly outside the purpose of an injunction.
  3. The only remedy available to the plaintiff is to seek a declaration under the provisions of The Hindu Marriage Act by filing a petition before family court after the proposed marriage is solemnized, that the marriage between the defendant and the person whom he/she proposed to marry is a void marriage, and that the suit brought by the plaintiff in the civil court or family court is not maintainable at this pre-mature stage. That means plaintiff has to wait until the defendant had committed an act of bigamy and then to make an application for a declaration that the marriage was void; or
  4. To prosecute the defendant for an offence punishable under Section 494[iii] of the Indian Penal Code. So when criminal law provides the remedy no civil remedy can be claimed; or
  5. Sometimes it is also submitted that the plaintiff in the guise of a civil suit of permanent injunction is in effect claiming the relief of restitution of conjugal rights for which provision has indeed been made by Section 9[iv] of the Hindu Marriage Act, which excludes the jurisdiction of a civil Court in regard to that matter. Since the Hindu Marriage Act is a complete and exhaustive Code on all the matters regulated by it and it codifies the law relating to marriage among Hindus. Section 4[v]of HMA has an overriding effect and provides that all texts, rules or interpretation of Hindu law and all customs or usages as part of that law in force immediately before the commencement of the Act shall cease to have effect with respect to any matter, for which provision is made in the Act. It further provides that every other law in force immediately before the commencement of the Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in the Act. So where the averments in the plaint in effect show that Plaintiff is indirectly claiming restitution of Conjugal Rights than in such cases suit is not maintainable before Civil Court and the proper remedy is to file petition before the family court under Section 9 of HMA as HMA bars the jurisdiction of Civil Court in relation to injunction related to matrimonial matters; or
  6. Where the petition is filed under HMA before Family Court (asking for relief of Restitution of Conjugal Rights or Judicial Separation or Divorce or Declaration of Marriage as void) and plaintiff asks for the injunction to restrain defendant from committing second marriage no such injunction can be granted because there is no provision in HMA regarding this; or
  7. Temporary Injunction can’t be granted by civil court as well because according to Order 39 CPC it can be granted only in those situations where there is some danger to the suit property of getting wasted, damaged or alienated.

The objections mentioned above may be raised by the defendant in a civil court by way of presenting an application under Order VII R.11[vi] (Rejection of the Plaint) on the ground that such suit for injunction is barred by law in view of Hindu Marriage Act or it may come in the form of O.VII R.10[vii] (Return of Plaint) on the ground that regarding such suits civil court has no competence and it has to be best decided by a Family Court demanding the return of plaint. If no so such objection is raised by way of these applications then this particular issue has to be decided by the civil court as a preliminary issue.

Objection-I-Relief of Permanent Injunction under SRA

Section 38 of SRA talks about the breach of obligation on the part of the defendant. Now the question arises whether conjugal obligations are covered within the scope of this word. Hon’ble Madhya Pradesh High Court in Pratiksha vs Pravin[viii] while dealing with the same issue held that the word “obligation” defined under Section 2(a)[ix] SRA, 1963 means and includes every duty enforceable by law. The word “obligation” is not used in the Act in a limited or restricted sense, thus the conjugal obligations are also not excluded from the scope of the preventive injunction. Any kind of breach of legal obligation to affect the right of marriage can be covered in the wide import of the word “obligation” and in the circumstances of the case an injunction can be issued against the spouse regarding breach of conjugal or matrimonial obligations and they may be said to be covered within the aforesaid scope of Section 38(1) of the Specific Relief Act under which a perpetual injunction may be granted in favour of the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. 

It may be true that the marriage between the Hindu spouses is not a contractual marriage but a Samskara. But it is not possible to place upon the provisions of Section 38 the limited construction to say that the obligation referred to in this part of Section 38 SRA is an obligation arising out of a contract only. The expression “obligation” occurring in that section has wide import and that that is so is clear from the fact that in the second para of Section 38 the reference is to an obligation arising from a contract as contrasted with the obligation referred to in the first para of that section which makes no reference to any contract. A marriage creates a bundle of rights and obligations. The HMA, imposed an obligation on the husband not to enter into a second marriage during the subsistence of the first. (The wife was under this obligation even before the Act). A second marriage by the husband will, therefore, infringe the wife’s right to a monogamous married life, and she can ask for an injunction to restrain the husband from entering into such a marriage.[x]

Moreover, the purpose of Section 5[xi] of the HMA was to introduce monogamy and to create an obligation between the two spouses each of whom was prohibited against taking another wife or husband as the case may be while there is a spouse living. The obligation created by Section 5(1) is in favour of that living spouse and that obligation is so long as that spouse is living neither the wife nor the husband as the case may be shall take another.[xii] Therefore, an injunction can be issued to restrain a Hindu husband or wife from contracting a second marriage during the subsistence of the first.

Objection No. II & III

There can be two ways to overrule this objection. First, there is no harm if an order issued by the Court restraining a Hindu husband from violating his marital obligations towards his wife has the additional result of making him lead a moral life. The law is ultimately founded on principles of morality though to change the metaphor, the orbits of law and morality do not always coincide. But if the breach of an obligation is also an immoral act, an injunction restraining a person from committing this breach will compel him not to be immoral, this is not a ground for refusing the injunction but an additional reason for issuing it. Secondly, it is not correct that the second marriage of a Hindu husband during the subsistence of the first is of no effect. Sec. 16[xiii] of the HMA expressly provides that even though such a marriage may be declared null and void, the issue of the marriage shall be legitimate and the children shall not be incapable of possessing or acquiring rights because the marriage of their parents was not legitimate. Therefore, if the husband marries a second wife, his children from her will be entitled to a share of his property and consequently, the share of the first wife and her children will be proportionately reduced. This will result in an additional infringement of the rights of the wife.[xiv]

Objection IV- Civil & Criminal Remedy

An act may be a punishable offence and also a civil wrong- for example, defamation. It may result in a breach of a civil obligation and violation of the criminal law. In that case, there are two aggrieved parties – the State and the person whose rights are infringed. The State can prosecute the offender, while the wronged party can seek civil remedies which include a suit for injunction. It is no answer to a prayer for injunction that the act is forbidden under the criminal law and the Court should not prohibit what is already prohibited. This argument ignores the elementary difference between a civil remedy and a criminal prosecution. A prosecution may result in the punishment of the offender, but it will not restore the rights of the wronged party who may be more interested in the protection of his (or her) rights than the punishment of the wrongdoer. The courts have in the past restrained the publication of defamatory material even though such publication was forbidden under the criminal law. The difference between the enforcement of civil rights and the enforcement of the penal law is recognised by Sec.4 of SRA[xv] which provides that specific relief can be granted only for the purpose of enforcement of individual civil rights and not for the mere purpose of enforcement of penal law.[xvi]

The conviction of the husband under Sec. 494, I.P.C. will not be of any comfort to the wife. In fact, her position may be worse because she will incur the odium of being responsible for sending her husband to prison. A Hindu wife will not ordinarily be a party to proceedings resulting in her husband being sent to jail. Moreover, the prosecution and conviction of the husband will destroy whatever little chance she may have of saving her marriage by restraining the erring husband from running after another woman. In many cases, the desire to take a second wife is the result of infatuation for another woman or a temporary loss of affection for the wife. The proper remedy for the wife in such cases is not to send the husband to prison but to put a restraint on him until his sense of marital discipline is restored and his reluctance to honour his obligations under the marriage subsides.

Objection No. V- When it can be said that remedy of restitution of conjugal rights is claimed and Whether HMA imposes bar on civil courts to try such matters

In such cases, the court needs to see whether any reference to restitution of conjugal rights is made in the plaint or whether it contains any prayer for any such restitution. If the prayer portion of the plaint makes it clear that the prayer made by the plaintiff is a prayer for perpetual injunction restraining the defendant from committing an act of bigamy, then in such case it will amount to proper civil suit for perpetual injunction and not a petition for restitution of conjugal rights and the jurisdiction of civil court is not excluded and the suit brought by the plaintiff for injunction is one which clearly falls within Section 9 of the CPC[xvii] under the provisions of which every civil court can exercise jurisdiction in all suits of a civil nature except in suits whose cognizance is expressly or impliedly barred.

Moreover, there is nothing in the Hindu Marriage Act the provisions of which can be regarded to be inconsistent with the provisions of Section 9 of the CPC or Section 38 of the SRA. Section 19[xviii] of HMA provides that every petition under the Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the husband and wife reside or last resided together. It is clear from the above-mentioned provisions and particularly from the provisions of Section 4 HMA that the only statutory provisions which cease to have effect after the enactment of the Hindu Marriage Act are those which relate to matters for which provision is specifically made in the Hindu Marriage Act or which are inconsistent with any of the provisions mentioned therein. It is clear from Section 19 HMA that it confers jurisdiction on Family Court in regard to petitions which may be presented under the provisions of the Hindu Marriage Act. So, it means the bar of HMA only applies in relation to petitions filed under the provisions of HMA claiming reliefs provided therein before a civil judge. So, in those cases, only Family Court has the jurisdiction and the jurisdiction of the Court of Civil Judge is excluded.

Answer to Objection VI & VII- Resorting to Inherent Powers to Grant Temporary Injunction under CPC both by Civil Courts in Civil Proceedings & Family Court in Matrimonial Proceedings

It is accepted that to issue a temporary injunction it is necessary that the case should fall strictly within the provisions of Rule 1 and 2 of Order 39 of the Code and under those rules, the injunction can only be issued when there is a threat to any property in dispute or the same is in danger of being wasted or alienated. So the element of property is a must for the application of both the rules. From the plain reading of the aforesaid provisions, it may be clear that strictly injunction may not be granted under Order 39 Rule 1 and 2 of the Code in matrimonial disputes covered by the provisions of the HMA.

The object of issuing of a temporary injunction is to prefer the status quo so that the party in whose favour a decision is ultimately given by the Court is not deprived of his benefit. For granting a temporary injunction, it is not necessary that relief of perpetual injunction must always be asked for. Merely because there is no provision under the Hindu Marriage Act for granting a permanent injunction, the Court is not powerless to issue temporary injunctions in any other case under the Act. According to Section 21[xix] HMA all proceedings under this Act shall be regulated, as far as may be, by the Code of Civil Procedure, 1908. By virtue of provisions of Section 21 HMA, a temporary injunction can be granted in exercise of its inherent powers which are not to be conferred by statute in the Court.

Section 151[xx] of the CPC is not a substantive provision conferring any right to get any relief of any kind. The object of the Legislature behind enacting this provision was to serve the ends of justice. This section provides recognition to an age-old well-established principle that every Court has inherent powers to act ex debito justitiae to do the real and substantial justice for the administration of which alone it exists or to prevent abuse of the process of the Court. It has been held by the Supreme Court in the case of Jaipur Mineral Development Syndicate, Jaipur v The Commr. of L-T., New Delhi[xxi], that every court is constituted for the purposes of doing justice according to law and must be deemed to possess, as a necessary corollary and as inherent in its very constitution, all such powers as may be necessary to do the right and to undo a wrong in the course of the administration of justice.

It is also now a settled law that whenever there is no provision made in the Code of Civil Procedure for dealing with a particular situation, the inherent jurisdiction of the Court under the provisions of Section 151 of the Code can be availed of by a party for the redressal of his grievances. In cases not falling within the ambit of express provisions, the inherent powers of the Court to pass such orders, as may be necessary for the ends of justice, remain. Moreover, Section 151 CPC itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court, it is a power inherent in the Court by virtue of its duty to do justice between the parties before it. Further, when the Code itself recognizes the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code.

Moreover, in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal[xxii], it was held that:

“It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the Legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression ‘if it is so prescribed’ in Section 94 of CPC is only this that when the rules in Order 39, CPC, prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of Section 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power.”

Also, there being no such expression in Section 94[xxiii] of CPC that may prohibit the issue of a temporary injunction in circumstances not covered by Order 39 or by any rules made under the Code, the Courts have inherent jurisdiction to issue a temporary injunction in circumstances which are not covered by provisions of Order 39, CPC, if the Court is of opinion that the interests of justice require the issue of such interim injunction.

From the aforesaid discussions, it is clear that under inherent powers not only the Family Courts hearing petitions regarding conjugal rights and matrimonial obligations but also the civil court dealing with the issue of injunction can issue interim injunctions and preventive orders, and in a case the element of property under dispute, the Court can also exercise powers under Order 39 Rules 1 and 2 of the Code to prevent misuse and waste of the property.

When faced with the same issue Hon’ble Rajasthan High Court in Smt. Parwati Devi vs Harbindra Singh[xxiv] gave the answer in a different style. But to understand the reasoning of the Court we need to know about the fact situation of the case. The respondent Harbindra Singh filed a petition under Section 9 of the HMA for restitution of conjugal rights against the appellant Smt. Parwati Devi. During the pendency of the above petition, Harbindra Singh filed an application under Order 39, Rules 1 and 2 read with Section 151, CPC that Smt, Parwati should be restrained by an injunction not to marry another person during the pendency of the petition under Section 9 of the Act. The learned Additional District Judge after hearing the parties arrived at the conclusion that there was a prima facie case in favour of the petitioner Harbindra Singh. He also came to the conclusion that remarriage by one of them would cause an injury which cannot be measured in terms of money. The point of balance of convenience was also decided in favour of the petitioner. So, basically, the interim injunction was granted by the court in the petition filed under Section 9 of HMA. Hon’ble Court said the Hindu Marriage Act is a special Act and if a petition is filed under the provisions of this Act, then only such reliefs could be given as are contemplated in the above Act i.e., restitution of conjugal rights, a decree of divorce and a decree of nullity but there is no provision in the Act under which an injunction could be sought against the other party for restraining her from marrying with another person. Since the main petition is filed under Section 9 of HMA and an interim injunction is granted in it, it has to be dealt with in accordance with provisions of HMA only. So the point is that if there is no provision of granting a permanent injunction under HMA then how come the Court while dealing with a petition under the Act can grant a prayer for an interim injunction. What indeed is authorised by that Act is the presentation of an application under Section 11 after the act of bigamy is committed for a Declaration that the bigamous marriage is void. It being thus clear that that application could be presented only after the act of bigamy is committed, so that means no remedy is made available by the Hindu Marriage Act before the solemnization of the bigamous marriage for its prevention. Since Section 11 operates only after the solemnization of that marriage and so also Section 19 which makes the provisions of Sections 494 and 495 applicable to it, the Hindu Marriage Act, it is clear, provides no remedy to a person who seeks the prevention of the commission of what is not only prohibited by Section 5(i) but also made an offence by Section 19 of that Act. Though Section 17 makes such act punishable under Sections 494 and 495 of the I.P.C., it does not contemplate any remedy of an injunction under this section under the provisions of the Act. There is only one provision under Sub-section (5) of Section 6 of the Act which contemplates that nothing in this Act shall affect the jurisdiction of a court to prohibit by injunction an intended marriage, if in the interest of the bride for whose marriage consent is required, and the Court thinks it necessary to do so.

The following observations of the Patna High Court in Trilokchand Modi v Om Prakash Jaiswal[xxv] is relevant to look into:

“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 enables the District Court to issue an order of injunction is contained in Sub-section (5) of Section 6 which states that 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.”

So, the point of whether Family Courts in a petition under provisions of HMA are capable of passing an injunction restraining one spouse to commit second marriage during the lifetime of other spouse without taking divorce has attracted different views of different High Courts. If we go by the reasoning of Allahabad High Court in the case Dhir Singh vs Kailashi & Ors., it is very much in the power of the Family Court to grant an injunction because they are also guided by the CPC and HMA doesn’t create any express or implied bar to grant an injunction in such cases. It is yet to be seen how the Apex Court of the country will deal with such an issue.

[i] https://lawrato.com/indian-kanoon/cpc/order

[ii] https://indiankanoon.org/doc/1474155/

[iii] https://indiankanoon.org/doc/508426/

[iv] https://indiankanoon.org/doc/322349/

[v] https://indiankanoon.org/doc/446436/

[vi] https://lawrato.com/indian-kanoon/cpc/order

[vii] https://lawrato.com/indian-kanoon/cpc/order

[viii] I (2002) DMC 242, 2002 (1) MPHT 276

[ix] https://indiankanoon.org/doc/874524/

[x] Dhir Singh vs Kailashi & Ors., 1965 All LJ 984

[xi] https://indiankanoon.org/doc/635068/

[xii] Shankarappa vs Basamma, AIR 1964 Kant 247, AIR 1964 Mys 247, (1964) 1 MysLJ

[xiii] https://indiankanoon.org/doc/284588/

[xiv] Dhir Singh vs Kailashi & Ors., 1965 All LJ 984

[xv] https://indiankanoon.org/doc/714717/

[xvi] Dhir Singh vs Kailashi & Ors., 1965 All LJ 984

[xvii] https://www.indiacode.nic.in/show-

[xviii] https://indiankanoon.org/doc/371013/

[xix] https://indiankanoon.org/doc/626721/

[xx] https://www.indiacode.nic.in/show-data

[xxi] AIR 1977 SC 1348

[xxii] AIR 1962 SC 527

[xxiii] https://www.indiacode.nic.in/show-data

[xxiv] AIR 1980 Raj 249, 1980 WLN 66

[xxv] AIR 1974 Pat 335


ABOUT THE AUTHOR

Harshit Sharma

Harshit is a trainee Civil Judge-cum-JMFC at Rajasthan Judicial Services, and a doctoral candidate (PhD) at NLU Jodhpur. He can be reached at harshitsharmanluj@gmail.com.

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