UMASHANKAR PRASAD SINGH Vs. RADHA DEVI

JUDGEMENT

(1.) This application is directed against an order passed by the learned District Judge, Muzaffarpur, on the 19th February, 1964, in an original (matrimonial) suit instituted by the wife of the present petitioner. She alleged that her husband, who is the petitioner here, was contemplating to marry another lady, who was impleaded as defendant 2 in that suit, in contravention of the Hindu Marriage Act, 1955. The reliefs she sought were that the defendant first party should be permanently injuncted from marrying any other girl, specially the second defendant, whom he was about to marry and that the defendants second party be permanently restrained from marrying the defendant first party. She also impeaded the father and the grand-father of the intended wife of defendant 1 as defendants 3 and 4, and against them also asked for a permanent injunction restraining them from giving defendant 2 in marriage with defendant 1. After filing the suit, she asked for an interim injunction on the lines on which she prayed for a permanent injunction in the suit. Notice of the suit and the application was given to the defendants and defendant 1, the husband, who is the present petitioner before us, raised objections to the effect that the proceeding was not maintainable before the District Judge and that court had no jurisdiction to proceed with the case or to pass any order of injunction--interim or permanent. The questions of jurisdiction and maintainability were taken up by the court for consideration as preliminary issues in the suit and they were held in favour of the plaintiff, who is opposite party 1 in this revision application. Against that, defendant 1 has come with this application to this Court.

(2.) The only point for consideration is, as contended by learned counsel, whether the suit as framed and filed by opposite party 1, could be maintained under any provision of the Hindu Marriage Act, 1855. Admittedly, the plaintiff went before the District Judge to invoke the special jurisdiction conferred upon him under the Hindu Marriage Act, 1955, to be referred to hereafter as the Act. Section 19 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. The District Judge comes within the definition of "district court" in the Act. The parties viz., the husband and wife, reside within his original civil jurisdiction. To that extent Section 19 does not come in conflict with opposite party 1. But the real difficulty is whether a petition of the present nature, which opposite party 1 filed before the District Judge, can be said to be a petition under the Act. She had described that as matrimonial suit and called that a plaint. But those things will not stand in her way if the initiation of the proceeding is taken to have been done by a petition contemplated under the Act. The plaint can be treated as a petition and can be maintained if the Act authorise any such petition to be filed by the wife against her husband for a permanent injunction restraining him from marrying another lady. We find from Sections 9, 10, 11, 12, 13 and 14 that a petition has been provided for in the Act under different circumstances and for different kinds of reliefs and purposes. None of those petitions can cover one of the present nature. Opposite party 1 mentioned In her plaint or petition that it was under Section 17 of the Act. That section reads as follows:

(3.) Learned counsel appearing for the opposite party contended that one of the conditions of a valid marriage between two Hindus, as provided under Section 5 of the Act, is that neither party has a spouse living at the time of the marriage. That has created an obligation for both of them in that respect. If any violation of that obligation is going to be committed by either party to an already solemnized valid marriage, in so far as one of them is about to enter upon a second marriage, he or she can prevent that by initiating suitable proceedings under the Act before the special tribunal created under this Act. I do not think that this argument can be substantiated for the simple reason that within the ambit of the special Act, specific remedies in specified circumstances have been provided for particular persons and none of them includes the remedy by way of an injunction against the husband or wife in regard to a contemplated second marriage; on the other hand, where the Legislature thought of some kind of injunction in regard to a contemplated marriage, it provided for that under Section 6, Sub-section (5) of the Act. That provision is where the consent of a guardian is required for an intended marriage and in the interest of the bride the court thinks it necessary to prohibit the intended marriage by mi injunction. Even in that provision, the power of granting certain injunction is not restricted to the 'District Court' as defined in the Act: The generic term 'court' has been used in Sub-section (5) of Section 6. Learned counsel for the opposite party contended that the power of issuing injunction as provided for under that sub-section is not exhaustive but only illustrative. It is difficult to accept this argument.