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

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.

 

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