Balwant Singh and Ors. vs Avtar Kaur & Ors.

(I) This Civil second appeal is directed against the Judgment arid decree dated May 13, 1974, of the Sub Judge, (CJM) Jammu, upholding the

judgment and decree dated January 22, 3973, of the Munsiff, RS Pura, restraining appellant No. I from taking' a second wife during the life time of

the respondent.

Mr. CM. Gupta appearing in support of the appeal has taken a very short point. He has urged the courts below have erred in passing the

impugned decree, as there is no provision 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 VS. 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.

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 gone into in the Patna cases cited by the learned counsel. On the other hand the legal position that a suit of the nature as

brought by the respondent in the instant case is entertain able is clear from a decision of the Mysore High Court in Shankarappa V. Basmma, 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.

I am also fortified in my view by a Full Bench decision of the Bombay High Court in Sita Bhai V. Ramchandra, AIR 1958 Bom. 160 and a

decision of the Allahabad High Court reported as 1965 All. WR. (H.C.) 450.

For the foregoing reasons I find no force in this appeal which is dismissed but with out any order as to costs.