Soubhagya Behera vs Mami Behera and Another

M.M. Das, J.—This appeal has been filed against an interim Order Dated 04.05.2011 passed in I.A. No. 47 of 2011 by the Learned Civil Judge (Senior Division), Angul arising out of Civil Suit No. 115 of 2011, which was filed by the Respondent No. 1. In the aforesaid Suit, the Respondent No. 1 filed the interim application for injunction under Order- XXXIX, Rules- 1 & 2 C.P.C. with, a prayer to restrain the Appellant, who is the Defendant No. 1 in the Court below from getting married to the proforma-Respondent No. 2 during pendency of the suit on the allegation that the marriage is going to take place on 05.05.2011. The suit was filed by the Respondent No. 1 for a decree, declaring that the Respondent No. 1 Plaintiff is the legally married wife of Defendant No. 1 (Appellant) & for a decree of permanent injunction against the Defendants from getting married to each other during existence of the marriage of the Defendant No. 1 (Appellant) with the Plaintiff-Respondent No. 1. A further prayer was made for a decree of damages of Rs. 20,00,000. In the impugned order, the Learned Court below taking cognizance of the fact that a criminal case has been initiated by the Plaintiff & referring to the decision in the case of Biswajaya Dagara v. Suman Lath & ors, 81 (1996) CLT 329, passed the following order :- Perused the materials available in the record including the certified copy of the F.I.R. indicated as above. In the decision reported in 81 (1996) C.L.T. at page 329 it has been held at para-4 therein that if a proper case is made out therefore, Court can issue temporary injunction in the interest of justice in exercise of its inherent power. Since the suit is filed for declaration to the effect that the Petitioner is the legally married wife of the O.P. No. 1, it would not be proper on the part of the Court at this stage to find out the truth in the matter. The O.Ps. have candidly admitted that their marriage is going to take place on 5.5.2011. Taking into consideration the pros & cons of the matter & the sensitivities involved I feel that the Court should, in the interest of justice, invoke the inherent power & direct the parties, in the present circumstances, to maintain status quo ante till disposal of the suit. Hence ordered.

ORDER

Both the parties are directed to maintain status quo ante in so far as the status of their marriage is concerned as it prevails today till disposal of the suit. The I.A. is disposed of accordingly on contest against the O.Ps., but in the circumstances without any cost. Lawyer''s fee at contested scale.

However, for passing the above order, the Learned Court below assigned reason that, if the Opp. Parties (Defendants) are allowed to marry, the Petitioner (Plaintiff), being the legally married wife, would be compelled to seek for divorce against her will for which, she would suffer irreparable loss & the balance of convenience is in her favour.

It appears that the Learned Court below before adjudicating the question raised by the Plaintiff with regard to her legal status as wife Defendant No. 1, has presumed that she is the legally married wife & referring to a criminal case initiated by her, has erroneously held that a prima facie case exists.

Mr. S.P. Mishra, Learned senior Counsel appearing for the Appellant submits that an interim order of the nature as has been passed in the impugned order is unknown to law, as a person cannot be restrained from getting married. No doubt, if ultimately it is held to be a second marriage during subsistence of the first marriage, such marriage would automatically be a void marriage as per the provisions of the Hindu Marriage Act, 1955 & the husband will also be liable to be prosecuted criminally. He further submits that if such an injunction order is allowed to stand, but ultimately, the suit is dismissed, the Appellant-Defendant No. 1, by the time, the suit is disposed of, would have crossed the age of marriage & therefore, according to Mr. Mishra, irreparable injury will be caused to the Appellant, if the order is allowed to stand & the Learned Court below is incorrect in holding that the Appellant-Defendant will suffer irreparable loss, unless the injunction order is passed. He refers to the decision in the case of Smt. Parwati Devi v. Harbindra Singh AIR 1980 Raj 249, where the Rajasthan High Court dealing with an order passed under Order XXXIX, Rule 1 C.P.C. in a proceeding u/s 9 of the Hindu Marriage Act categorically held that during pendency of the suit filed by the husband for restitution of conjugal rights on the application of the husband, the Court could not pass any interim injunction restraining the wife from marrying with another person as there is no such provision in the Act.

The analogy of such a suit u/s 9 or any other matrimonial dispute can be drawn to the present suit, though it is framed in the nature of a declaratory suit. This Court also finds that if, ultimately, the suit is decreed, even if, the Appellant-Defendant No. 1 gets married during the pendency of the suit either to the Defendant No. 2 or to anyone else, such marriage would automatically be a void marriage under law, & therefore, no irreparable injury will be caused to the Plaintiff, if the order of interim injunction is not passed. This Court, therefore, finds that in the above premises, the three ingredients/conditions, which are to be satisfied for obtaining an order of interim injunction under Order XXXIX, Rules 1 & 2 C.P.C. i.e., existence of a prima facie case, balance of convenience in favour of the applicant & irreparable injury would be caused to the applicant, if the injunction order is with held, have not been satisfied in the aforesaid case.

Moreover, judicial notice can be taken of the fact that ordinarily a Civil Suit consumes a lot of time to be finally disposed of, there being various occasions of off-shoots arising during the pendency of the Civil Suit, which can be carried to the higher forums & there may be orders passed stalling the trial of the Civil Suit. In the instant case, the Appellant-Defendant No. 1, who is stated to be about 26 years of age, if injuncted from getting married to the Defendant No. 2 or for that matter getting married to any body else, in the event, the suit of the Plaintiff is dismissed, by the time the suit is finally dismissed, there is every possibility that the Defendant No. 1 would have crossed marriageable age. Hence, irreparable injury in the instant case will be caused to the Appellant-Defendant No. 1, if an order of injunction is passed. Therefore, the impugned order restraining the Appellant from getting married to the proforma-Respondent No. 2 (Defendant No. 2) during the pendency of the suit could not have been passed by the Learned Court below. The impugned Order Dated 04.05.2011 is, therefore, set aside.

Accordingly, the appeal is allowed.