DHIR SINGH Vs. SMT. KAILASHI AND OTHERS
LAWS(ALL)-1965-2-37
HIGH COURT OF ALLAHABAD
Decided on February 25,1965

DHIR SINGH Appellant
VERSUS
Smt. Kailashi And Others Respondents


Referred Judgements :-

REOTI LAL V. SHVAM LAL [REFERRED TO]


JUDGEMENT

S.S. Dhavan, J. - (1.)THIS is a husband's second appeal hum the decree of the First Civil Judge of Muzaffarnagar dismissing his appeal from the decree of the Additional Munsif Muzaffarnagar issuing an injunction to restrain him from marrying again in the life time of his first wile. It raises a question of law of general importance -namely, whether a preventive injunction under the Specific Relief Act can be issued to restrain a Hindu husband from contracting a second marriage during the subsistence of the first. The Plaintiff Respondent Smt. Kailashi related the following story in her plaint. She was the lawfully wedded wife of the Defendant Appellant Dhir Singh being married to him according to Karao rites. The parties belong to the Jat community which permits a form of marriage known as ''Karao". This requires no ceremony except the payment of a sum of one rupee to the husband. She alleged that she was first married to Dhir Singh's brother Shyam Singh and had a daughter by him, but after five years Shyam Singh died, and a year after his death she was married to the Defendant Appellant Dhir Singh and had a daughter by him. Within a year and hall of the marriage he persuaded her to part with all her jewellery and transfer all her landed property in his favour by deed. He then got tired of her and started ill treating and beating her, and ultimately turned her out of his house while she was expecting her child, and since then she had been living with her parents. She obtained an order for maintenance against him under Section 488 Code of Criminal Procedure Recently she had learnt that the Appellant had decided to marry again and a marriage had in fact been arranged between him and the daughter of accused Defendant, though such marriage was forbidden by law. She pleaded that if her husband was permitted to marry again, she would suffer irreparable loss which could not be measured in money value nor compensated by payment of money. She also pleaded that if the Defendant married a second time, the interest of her daughter Indrawati would suffer and she would lose all prospects of being brought up in comfort. The Plaintiff asked for an injunction to restrain her husband Dhir Singh from contracting a second marriage during her life time and the second Defendant Bhagirath from giving his daughter in marriage to Dhir Singh. Both the Defendants contested the suit. Dhir singh admitted that he had decided to marry the second Defendant's daughter, but denied that the Plaintiff was his wife. He admitted that she had been married to his deceased brother Shyam Singh, but denied that after Shyam Singh's death there was any Karao marriage between him and her. He admitted that the Plaintiff had a child by his late brother and had a second child after Shyam Singh's death, but denied that this child was his, and alleged that the girl Indrawati was the off spring of the Plaintiff's immoral life. According to his version the Plaintiff went back to her father's house immediately on the death of her husband Shyam Singh, taking all her jewellery, money and other belongings with her. In the alternative, he pleaded that she was not entitled to an injunction as she had other adequate remedies in the event of his marrying a second time.
(2.)THE second Defendant Bhagirath while denying the Plaintiff's right to sue for an injunction, pleaded that he had given up all intentions of marrying his daughter to Dhir Singh and had in fact married her to another man called Vir Singh He, therefore, contended that as there was no possibility of his daughter being married to Dhir Singh, the suit must be dismissed.
5. The learned Munsif believed the Plaintiff's story and found that after the death of her first husband she was married to the Defendant Dhir Singh in Karao form, and that she had been ill treated and turned out of the house by him. Completely disbelieving the Appellant's version, he issued a permanent injunction restraining him from marrying again in the life time of the Plaintiff. Dhir Singh appealed but the learned Civil Judge confirmed the finding of the trial court and the injunction order. The husband has now come to this Court in second appeal.

4. Mr. K.C. Saksena, learned Counsel for the Appellant argued that 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 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, Mr. Saksena contended, 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. Learned Counsel argued that it is not the function of the court to compel any person not to lead an immoral life.

5. Learned Counsel cited two decisions but neither of them supports the Appellant. In Muhammad Yam in v. Razia Begam (1) (27 ALJR 1138) the Court observed that an injunction addressed to a Mohammaden married woman restraining her from marrying another man "would virtually amount to an injunction not to commit adultery". The remark was obiter. Moreover, the case is distinguishable from the present case because a bigamous marriage by a Hindu spouse is not a mere commission of adultery but creates rights and obligations. In "In the matter of Ganpat Narain Singh"(2)(ILR 1 Cal. 74) the Court refused to issue an interim injunction to restrain a woman from marrying her daughter to another person during the pendency of a suit for the specific performance of the contract of marriage previously made with him. But in this case an injunction was refused on the ground that the Plaintiff was not married but only betrothed to the girl and there were no conjugal rights or obligations to be enforced. In the present case, a married woman seeks enforcement of the husband's obligations to her.

6. Mr. T.N. Sapru for the Respondent argued that an injunction can be issued to restrain a spouse from entering into a marriage which is forbidden by law, and cited a number of decisions. In some of these cases, the person enjoined was not the spouse but the parent or guardian against whom it was alleged that he or she had no authority to give the girl in marriage. In Nanabhai Ganpatray Dbairvavan v. Janardhan Vasudey and Ramabai (3) (ILR 12 Bom. 110) the Court issued an injunction to restrain the mother and other relations of a girl to marry her to a certain person during the pendency of the suit filed against them by the father of the girl. The girl herself, who was a minor, was not restrained. The question in issue was whether the Defendant had the right to marry the girl against the wishes of the father and not whether the girl had the right to marry a second time during the life time of living husband. In Venkatacharyulu v. Rangacharyulu (4) (ILR 14 Mad 316) the Court restrained the parents of a girl from marrying her to another person after she had been married to the Plaintiff. Learned Counsel contended that the real question in all these cases was whether the second marriage itself ought to be restrained, and it is immaterial who was restrained. In Reoti Lal v. Shvam Lal (5) (1930 ALJR (52) Shyam Lal an intending bridegroom himself was restrained from entering into any ceremony of marriage with a girl who was a ward of the District Judge. Her marriage with Shyam Lal had been approved by the Distt. Judge but the High Court issued an interim injunction during the pendency of the proceedings before it. Mr. Sapru strongly relied on this case and argued that there are stronger reasons for issuing an injunction in the present case because, whereas Shyam Lal's impending marriage was not forbidden by law nor in violation of any rights under an existing marriage, the present Defendant's second marriage is prohibited by the Hindu Marriage Act and will violate the first wife's rights. Mr. Saksena in rejoinder argued that this decision is not binding on me because the question whether an injunction should issue to prevent a person from marrying another person was not raised before the Court which assumed that such an injunction could be issued. I think that the very fact that the Court issued an injunction indicates that it did not consider the issue of such an injunction improper or illegal. Eminent counsel appeared in that case and they would not have hesitated to raise this point if they had thought there was substance in it.

7. The question in this case is whether an injunction can be issued under the Specific Relief Act to restrain a Hindu husband from contracting a second marriage during the subsistence of the first After examining the provisions of the Specific Relief Act, I think it can in a proper case.

8. On the date of the suit the old Specific Relief Act was in force, being replaced in 1963 by the present Act. There is little substantial difference between the old Act and the new as regards general principles, but I shall refer to the Sections of the old Act. Section 5(c) of the Act provided that specific relief was given by preventing party from doing that which he was under an obligation not to do, and under Section 6 such relief was called preventive relief. Under Section 54 a perpetual injunction could be granted "to prevent the breach of an obligation existing in favour of the applicant whether expressly or by implication." The word obligation is not used in a limited or restricted sense and there is nothing in the Act -old or new -to suggest that conjugal obligations are excluded from the scope of preventive injunction. A marriage creates a bundle of rights and obligations. The Hindu Marriage Act, 1955, imposed an obligation on the husband not to enter into a second marriage during the subsistence of the first. The "wife was under this obligation even before the Act). A second marriage by the husband will, therefore, infringe the wile's right to a monogamous married life, and she can ask for an injunction to restrain the husband from entering into such a marriage.

9. I am not at all impressed with the argument that the Court should not issue an injunction to prohibit an act which is already prohibited by law. An act may be a punishable offence and also a civil wrong -as tor example, defamation. It may result in a breach of a civil obligation and violation of the criminal law. In that case, there are two aggrieved parties -the State and the person whose rights are infringed. The State can prosecute the offender, while the wronged party can seek civil remedies which include a suit for injunction. It is no answer to a prayer for injunction that the act is forbidden under the criminal law and the Court should not prohibit what is already prohibited. This argument ignores the elementary difference between a civil remedy and a criminal prosecution. A prosecution may result in the punishment of the offender, but it will not restore the rights of the wronged party who may be more interested in the protection of his (or her) rights than the punishment of the wrong doer. The courts have in the past -restrained the publication of defamatory material even though such publication was forbidden under the criminal law. The difference between the enforcement of civil rights and the enforcement of the Penal Law is recognised by Section 4 of the Specific Relief Act which provides that specific relief can be granted only for the purpose of enforcement of individual civil rights and not for the mere purpose of enforcement of a Penal Law.

10. Mr. Saksena argued that the wife can file a complaint under Section 494 Indian Pinal Code, or sue for divorce. The short answer to this argument is that neither remedy will restore the wife to her rights under the marriage. The conviction of the husband Under Section 494 Indian Pinal Code will not be of any comfort to the wife. In fact, her position may be worse because she will incur the odium of being responsible for sending her husband to prison. A Hindu wife will not ordinarily be a party to proceedings resulting in her husband being sent to jail. Moreover, the prosecution and conviction of the husband will destroy whatever little chance she may have of, saving her marriage by restraining the erring husband from running after another woman. In many cases the desire to take a second wife is the result of infatuation for another woman or a temporary loss of affection for the wife The proper remedy for the wife in such cases is not to send the husband to prison but to put a restraint on him until his sense of marital discipline is restored and his reluctance to honour his obligations under the marriage subsides.

11. Mr. Saksena then contended that a Hindu marriage being a sacrament imposes no contractual obligate ions like a Mohammedan marriage, and therefore no injunction can issue to restrain a Hindu husband from entering into a second marriage. I disagree, The fact that a Hindu marriage is a sacrament does not mean that it creates no obligations. The word sacrament, which is derived from the same root as sacred, denotes that the institution is sanctified by a ceremony or sacred rites and is not peculiar to Hinduism. The Roman Catholic Church regards Matrimony as one of the sacraments. The concept of sacrament does not exclude obligations enforceable under the law. Manu and Yajuna Valkya, both devote a whole chapter to conjugal obligations which were enforceable by the courts under the title Stri -Pung Dharma, or "obligations of husband and wife."

12. Mr. Saksena contended, relying on the observation of the Division Bench in Mohammed Yamin v. Razia Begam(l) (17 ALJR 1138,) that a second marriage by a Hindu husband being legally impossible, the Court should not issue an injunction which will be only a moral order not to commit adultery. Learned Counsel argued vehemently that it is not the function of this Court to make people moral by injunction. There are two short answers to this question. First, I see no harm if an order issued by this Court restraining a Hindu husband from violating his marital obligations to his wife has the additional result of making him lead a moral life. The law is ultimately founded on principles of morality though, to change the metaphor, the orbits of law and morality do not always coincide. But if the breach of an obligation is also an immoral act and an injunction restraining a person from committing this breach will compel him not to be immoral, this is not a ground for refusing the injunction but an additional reason for issuing it.

13. Secondly, it is not correct that the second marriage of a Hindu husband during the subsistence of the first is of no effect. Section lb of the Hindu Marriage Act expressly provides that even though such a marriage may be declared null and void, the issue of the marriage shall be legitimate and the children shall not be incapable of possessing or acquiring rights because the marriage of their parents was not legitimate. Therefore, if the husband marries a second wife, his children from her will be entitled to a share of his property, and consequently, the share of the first wife and her children will be proportionately reduced. This will result in an additional infringement of the rights of the wife.

14. Lastly, learned Counsel argued that the proper remedy for a wife whose husband contracts a bigamous marriage is to sue for divorce, and not to seek the assistance of the court in saving her marriage. Counsel pointed out that in England no wife has ever thought of applying for an injunction to restrain the husband from marrying again. There are several answers to this argument. Firstly, the law itself recognizes the sanctity of marriage and provides the remedy of restitution of conjugal life. Secondly social conditions in England and the other western countries are different from those in India. In those countries women have achieved economic independence and the position of a divorced woman is not as helpless as in this country. Thirdly, it is not certain that an English court will refuse to issue an injunction to restrain a husband from contracting a bigamous marriage. A case like the one before me has never been tried in the English courts.

15. But I think the injunction in the form issued by the lover court is too wide. It restrains the Defendant Dhir Singh from contracting a second marriage during the life time of the Plaintiff. The result of this injunction may very well be that even after the Plaintiff has obtained a divorce from Dhir Singh, the latter will not be able to marry again without disobeying the order of the Court or seeking a modification of this order. I think the order of injunction issued by the trial court should be slightly modified. I therefore direct the issue of an injunction to restrain the Appellant Dhir Singh from contracting a second marriage or going through the form of a second marriage while his marriage with the first Plaintiff Smt. Kailashi Devi is subsisting. The appeal is dismissed with costs. Before leaving this case I would like to mention that the Court derived valuable assistance from the arguments of the learned Counsel for the Respondent, Mr. T.N. Sapru.

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