BALWANT SINGH Vs. AVTAR KUAR

JUDGEMENT

(1.) THIS Civil second appeal is directed against the Judgment and decree dated May 13, 1974, of the Sub Judge, (CJM) Jammu, upholding the judgment and decree dated January 22, 1973, of the Munsiff, R. S. Pura, restraining appellant No. 1 from taking a second wife during the lifetime of the respondent.

(2.) MR . C. M. Gupta appearing in support of the appeal has taken a very short point. He has urged that the courts below have erred in passing the impugned decree, as there is no provisions in the Hindu Marriage Act entitling the court to do so. He has in support of his contention relied upon two decisions of the Patna High Court reported in AIR 1967 Patna 220 and AIR 1974 Patna 335. Mr. V. S. Gupta appearing for Mr. J. R. Gupta, counsel for the respondent, has on the other hand contended that a suit by a Hindu wife for perpetual injunction restraining her Hindu husband from contracting a second marriage falls within the purview of S. 9 of the Code of Civil Procedure and the jurisdiction of the Civil court to entertain such a suit is not excluded by the Hindu Marriage Act.

(3.) AFTER giving my anxious consideration to the submissions made by the learned counsel for the parties, I find myself unable to accede to the contention of the learned counsel for the appellant. The cases cited by him were under the Hindu Marriage Act which did not permit grant of any relief restraining the husband from contracting a second marriage. The point as to whether a regular suit for perpetual injunction restraining a Hindu husband from taking a second wife could or could not be entertained under S. 9 of the Code of Civil Procedure or under S. 54 of the Specific Relief Act was never gene into in the Patna cases cited by the learned counsel. On the ether hand the legal position that a suit of the nature as brought by the respondent in the instant case is entertainable is clear from a decision of the Mysore High Court in Shankarappa. V. Basamma, AIR 1964 Mysore 247 where the following observations were made: - "As there is nothing in the Hindu Marriage Act which expressly or impliedly bars the suit of the present nature which clearly falls within the purview of S. 9 of the Code of Civil Procedure and is permitted by S. 54 of the Specific Relief Act, the courts below were not barred from entertaining the suit and granting the relief to the respondent.