BISWAJAYA DAGARA Vs. SUMAN NATH AND ORS.

JUDGEMENT

(1.) IN a suit numbered as O.S. No. 401 of 1995 (1) appellant prayed for a decree of restitution of conjugal right against respondent No. 1, and a decree for permanent injunction against her not to marry anybody. In the said suit prayer for ad interim injunction was made in terms of Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure, 1908 (in short, 'the C.P.C.') in the Court of learned Civil Judge (Senior Division), Bhubaneswar. By order dated 25.11.1995, exparte temporary injunction was granted to be operative till on 11.12.1995, as to why the order should not be made absolute. The matter was taken up on 13.12.1995 and on consideration of stands of the respective parties, the petition was rejected and prayer for extension of the order of injunction was refused. The matter was directed to be placed on 24.1.1996 for hearing.

(2.) DETAILED reference to the factual aspects would be unnecessary because of delicate nature of the dispute involved in this case. It would suffice to indicate appellant's stand which is that respondent No. 1 is his legally married wife and other defendants -respondents are trying to get her married to some other person which in the eye of law would be a void marriage. It is his stand that if any marriage takes place during pendency of the suit, though it would be void in the eye of law, yet the anomy attached to such marriage shall hit him throughout his life. Stand of the, respondents on the other hand is that there was no marriage as claimed. On the other hand, the appellant had forcibly taken away respondent No. 1 and had detained her against her will in illegal custody for about a week for which law was set into motion and criminal proceedings are pending.

(3.) IN a suit under Section 9 of the Act, possibility of granting an order injunction in terms of Order XXXIX Rules 1 and 2 is not there. (See Smt. Parwati Devi v. Harbindra Singh, : AIR 1980 Raj 249; and Jagjit Singh Khanna v. Dr. Rakhal Das Mullick and another, : AIR 1988 Cal 95. The Act is a special statute and if a petition is filed under the provisions of the Act, then only such relief's could be given as are contemplated in the Act.. There can be no doubt that provisions of C.P.C. are applicable in dealing with any petition under the Act by virtue of provisions of Section 21 of the Act. A suit for permanent injunction restraining the oilier spouse from marrying with another person on the ground that they are already married. But such a suit will not come within the purview of any provisions of the Act. When there is no provision in the Act for filing a suit for permanent injunction restraining the other person from marrying with another person, it is not permissible for any Court to grant any temporary injunction in a suit under the Act. An interim relief granted during pendency of a suit should not be of greater scope than what could be granted in the suit itself. An interim relief is granted to a person on the footing that such person is prima facie entitled to the right on which is based the claim for the main relief as well as the interim relief. That relief is granted as an interim measure till disposal of the suit in which validity of the claim of right put forward is to be investigated. If no such claim has been put forward in the suit, there can be no justification for the grant of interim relief which will just lapse on the termination of the suit, but that will leave the parties in the same position in which they were before the institution of the suit in course of which the interim relief was sought and obtained. That is not the scope of Order XXXIX Rule I. Under Section 94 (c) of the C.P.C. the Court may grant a temporary injunction only "if it is so prescribed." The expression prescribed' would obviously mean as defined in Section 2(16) C.P.C. "prescribed by Rules". The Rules which prescribe grant of temporary injunction are Rule 1 and Rule 2 of Order XXXIX, and therefore a temporary injunction may be granted under Section 94 (c) only if a case satisfying the requirements of Rules 1 and 2 are made out. It is true as was observed by the apex Court in Manoharlal v. Seth Hiralal, : AIR 1962 SC 527, a Court can grant temporary injunction in exercise of its inherent powers also, but there it does not grant it under any power conferred by the Code but under powers inhering in its very constitution which are saved by and under Section 151 of the Code. Order XXXIX, Rule 1 operates when the question relates to some property in suit or some other property which the defendant is going to dispose of. Order XXXIX, Rule 2 attracted only when the suit or the proceeding itself is for restraining the defendant from committing a beach of contract or other injury of any kind. In a matrimonial proceeding not being a proceeding of the nature specified in clauses (a), (b) or (c) of Rule 1 or in sub -rule (1) of Rule 2 of Order XXXIX, temporary injunction cannot be issued under provisions of Rule 1 or Rule 2 of Order XXXIX to restrain a spouse from marrying again. But as indicated above, if a proper case is made out therefore Court can issue temporary injunction in the interest of justice in exercise of its inherent power. It is ultimately welfare of the parties and the back -ground facts which determine whether an order of the nature prayed for can be passed or what would be the appropriate order.