Gani Pala vs Mst. Khati

K.V. Gopalakrishnan Nair, J.—This is a Defendant's second appeal directed against the decision of the Additional District Judge at Srinagar

who confirmed the decree of the Munsiff at Srinagar. The suit was for a perpetual injunction to restrain the Appellant first Defendant and his lather,

the second Defendant, from falsely proclaiming the Plaintiff to be the wife of the first Defendant. In their written statement, the Defendants set up in

the main that the Plaintiff was legally wedded to the first Defendant, that they lived together as man and wife and that the suit as framed was not

maintainable. The trial court on the evidence adduced before it, found that there was no marriage between the Plaintiff and the first Defendant and

that they did not at any time live together. On the question of the maintainability of the suit also, it found against the Defendants and gave a decree

as asked for. On appeal to the Additional District Judge, the decision of the trial court was confirmed. The aggrieved first Defendant has, therefore,

come up in second appeal to this Court.

It is alleged on behalf or the Appellant that issue No. 4 framed by the trial court which related to the maintainability of the suit did not receive

adequate consideration at the hands of the courts below. It is true that the trial court did not enter into an elaborate or even a sufficient discussion

of that issue. Nor did the Additional District Judge make specific mention of that issue in his judgment. The learned Counsel for the Plaintiff-

Respondent states that the point that the suit was not maintainable was not pressed before the lower appellate court.

Learned Counsel for the Appellant does not accept this position. No doubt, it is ordinarily permissible to inter from the non-mention of a point by

the appellate court that it was not pressed before it. But I do not desire to rest my decision on this somewhat narrow ground. I would consider that

the question is at large and permit the learned Counsel for the Appellant to canvass it in second appeal. This is especially so because the question is

essentially one of law regarding which even a concession by the counsel cannot, strictly speaking, bind his client.

The learned Counsel for the Appellant has placed considerable reliance on Section 54 of the Specific Relief Act. It says that a ""perpetual

injunction may be granted to prevent the breach of an obligation existing in favour of the applicant, whether expressly or by implication"". According

to the Appellant, the Plaintiff, cannot claim any obligation in her favour entitling her to restrain the first Defendant from proclaiming that she is

married to him.

It is argued that the obligation, if any, in favour of the Plaintiff is only of a social or moral character. This line of reasoning is sought to be reinforced

by pointing out that if a suit like the present is decreed, there will be difficulties in the way of enforcing the decree. It is, therefore, urged that the

proper remedy; of the Plaintiff was to sue for damages for defamation or for an appropriate declaration in this connection, my attention is drawn by

the Appellant to Clause (i) of Section 56 of the Specific Relief Act according to which when an ""equally efficacious relief can certainly be obtained

by any other usual mode of proceeding"", an injunction cannot be granted. We have now to examine the validity of these contentions.

The first point is whether a man owes a duty to a lady to refrain himself from falsely claiming her to be his wedded wife. It is not denied that

there could hardly be anything more injurious to the status and reputation of an unmarried lady than a false claim by a man that she is his wife.

Considering the unsavoury nature of such a false claim, the injury it is likely to cause to the lady concerned and also the social condition in which

we live. I am inclined to the conclusion that a lady can properly claim it as an obligation in her favour that a person who is not her husband should

not claim her to be his wife.

This obligation is perhaps all the gr(sic)ater in the case of an unmarried lady. I am not able to see any good reason in principle why this obligation in

favour of the lady and the corresponding duty on the part of the man should not be enforced by a court. It is said that it will be difficult of

enforcement and that it partakes of a moral or social character. But when we go to the fundamentals of law, we often see that many a good

principle of law is founded upon some wholesome moral precent or social observance. To say that it is a moral or social obligation is not, therefore

tantamount to saying that it is not a legal right.

The nature of the right which the plain-till in this case seeks to enforce is not far different from the right mentioned in illustrations (h) end (i) to

Section 54 of the Specific Relief Act. These illustrations show that the publication of certain information or the communication of it to a stranger

can be restrained by means of a perpetual injunction. It that be so, I fail to see why the dissemination of a false story that the Plaintiff is the wife of

the first Defendant cannot equally be restrained by means of a perpetual injunction. The alleged difficulty of enforcement will be equally present or

absent in both the classes of cases.

It cannot be gainsaid that marriage creates certain rights and imposes certain obligations on the spouses. The status of being a wife is

undoubtedly a status in law. A false claim that a certain lady is the wedded wife of a certain person is therefore a claim that the concerned lady

occupies in law the status of a wife and that she is consequently subject to certain marital duties and obligations. Thus the false claim attempts or

threatens to imperil her status as an unmarried woman and seeks to fasten upon her legal obligations which are alien to her true status.

This involves a serious invasion of her rights and puts in jeopardy her freedom to marry a person of her choice. In such circumstances I find it

extremely difficult to hold that she has no right at law to restrain the false claimant from making the wrong claim and spreading the false rumour.

The learned Counsel for the Appellant concedes that a suit for damages for defamation or a suit for a declaration would properly lie. These

actions, it is agreed, will be well based on the legal rights of the Plaintiff which have been infringed by the false claim which the Defendant

proclaims.

If so, the same legal rights of the Plaintiff should enable her to ask for an injunction to restrain the Defendant from invading and injuring those very

rights. In the absence of an express rule or provision of law to the contrary, I think, her right to bring such an action must be upheld. I may also

point out here that a suit for perpetual injunction in a case like this does in substance embody a prayer for a declaration that she is not the wife of

the false claimant, this implied prayer being the very basis for granting the injunction asked for.

It only remains to deal with the argument based upon Section 56(i) of the Specific Relief Act. This provision says that when an ""equally

efficacious relief can certainly be obtained by any other usual mode of proceeding"", an injunction cannot be granted. But in the present case I am

not satisfied that an equally efficacious relief can certainly be granted by any other usual mode of proceeding. A suit for damages may lie, but it will

not have such a deterrent effect on the wrong-doer as a decree for perpetual injunction. A suit for a declaration can well be instituted, but that is

much less effective than an action for perpetual injunction. It is, therefore, idle to contend that the present suit is not competent because of Clause

(i) of Section 56.

No other point is urged before me in support of the appeal. The appeal, therefore, fails and is dismissed. The Appellant first Defendant will pay

costs to the Plaintiff-Respondent throughout.

Leave to appeal under the Letters Patent is granted.