SOUBHAGYA BEHERA Vs. MAMI BEHERA

JUDGEMENT

(1.) THIS appeal has been filed against an interim order dated 04.05.2011 passed in I.A. No.47 of 2011 by the learned Civil Judge (Senior Division), Angul arising out of Civil Suit No.115 of 2011, which was filed by the respondent No.1. In the aforesaid suit, the respondent No.1 filed the interim application for injunction under Order - XXXIX, Rules - 1 & 2 C.P.C. with a prayer to restrain the appellant, who is the defendant No.1 in the Court below from getting married to the proforma -respondent No.2 during pendency of the suit, on the allegation that the marriage is going to take place on 05.05.2011. The suit was filed by the respondent No.1 for a decree, declaring that the respondent No.1 -plaintiff is the legally married wife of defendant No.1 (appellant) and for a decree of permanent injunction against the defendants from getting married to each other during existence of the marriage of the defendant No.1 (appellant) with the plaintiff -respondent No.1. A further prayer was made for a decree of damages of Rs.20,00,000/ -. In the impugned order, the learned Court below taking cognizance of the fact that a criminal case has been initiated by the plaintiff and referring to the decision in the case of Biswajaya Dagara v. Suman Lath and others, 81 (1996) CLT 329, passed the following order : - "Perused the materials available in the record including the certified copy of the F.I.R. indicated as above. In the decision reported in 81 (1996) C.L.T. at page 329 it has been held at para -4 therein that if a proper case is made out therefore, Court can issue temporary injunction in the interest of justice in exercise of its inherent power. Since the suit is filed for declaration to the effect that the petitioner is the legally married wife of the O.P. No.1, it would not be proper on the part of the Court at this stage to find out the truth in the matter. The O.Ps. have candidly admitted that their marriage is going to take place on 5.5.2011. Taking into consideration the pros and cons of the matter and the sensitivities involved I feel that the Court should, in the interest of justice, invoke the inherent power and direct the parties, in the present circumstances, to maintain status quo ante till disposal of the suit. Hence ordered. ORDER Both the parties are directed to maintain status quo ante in so far as the status of their marriage is concerned as it prevails today till disposal of the suit. The I.A. is disposed of accordingly on contest against the O.Ps., but in the circumstances without any cost. Lawyer's fee at contested scale".

(2.) HOWEVER , for passing the above order, the learned Court below assigned reason that, if the opposite parties (defendants) are allowed to marry, the petitioner (plaintiff), being the legally married wife, would be compelled to seek for divorce against her will for which, she would suffer irreparable loss and the balance of convenience is in her favour.

(3.) MR . S.P. Mishra, learned senior counsel appearing for the appellant submits that an interim order of the nature as has been passed in the impugned order is unknown to law, as a person cannot be restrained from getting married. No doubt, if ultimately it is held to be a second marriage during subsistence of the first marriage, such marriage would automatically be a void marriage as per the provisions of the Hindu Marriage Act, 1955 and the husband will also be liable to be prosecuted criminally. He further submits that if such an injunction order is allowed to stand, but ultimately, the suit is dismissed, the appellant -defendant No.1, by the time, the suit is disposed of, would have crossed the age of marriage and, therefore, according to Mr. Mishra, irreparable injury will be caused to the appellant, if the order is allowed to stand and the learned Court below is incorrect in holding that the appellant -defendant will suffer irreparable loss, unless the injunction order is passed. He refers to the decision in the case of Smt. Parwati Devi v. Harbindra Singh A.I.R. 1980 Rajasthan 249, where the Rajasthan High Court dealing with an order passE1d under Order - XXXIX, Rule - 1 C.P.C. in a proceeding under Section 9 of the Hindu Marriage Act categorically held that during pendency of the suit filed by the husband for restitution of conjugal rights on the application of the husband, the Court could not pass any interim injunction restraining the wife from marrying with another person as there is no such provision in the Act.