Even otherwise, Section 5(i) of the Act mandates that marriage may be solemnized between two Hindus subject to the condition that neither has a living spouse. Section 11 declares that a second marriage with the first spouse living would be void. No doubt Hindu Marriage Act is a special Act, but if it is silent on the issue of injunction, the place can be occupied by general legislation especially so to restrain a party from performing a void act. Similarly, the ratio laid down in T. Modi's case (supra) would also not apply.
8. He has then urged that even assuming that her marriage took place according to Arya Samaj rites, her alleged consent was obtained by force under threat. Therefore, it cannot be deemed to be a marriage. In support of this contention he has relied upon a single Judge decision of the Delhi High Court rendered in the case Smt. Anjoo Sharma v. Suresh Kumar (AIR 1998 Delhi 471). The Delhi High Court in the aforesaid case has held that consent by force will not validate the marriage if it could be proved that the consent was obtained by force or it was unvoluntarily. There is no doubt ratio, but the stage in the present case as yet not reached and the parties would have to lead evidence to show whether or not consent was voluntary. Therefore, this ratio is immaterial at this stage.
Allahabad High Court
Km. Kirti Sharma vs Civil Judge, Senior Division And ... on 9 February, 2005
Equivalent citations: AIR 2005 All 197, 2005 (2) AWC 1741
1. Heard Sri K. P. Agrawal, learned Senior Advocate assisted by Sri S.K. Mishra for the petitioner and Sri V. C. Mishra, learned Senior Advocate assisted by Sri Vivek Mishra for the respondent No. 3.2. The plaintiff respondent No. 3 filed suit No. 761 of 2004 against the petitioner for restitution of conjugal rights and incidental relief. Along with the suit, an application for temporary injunction was also filed but instead of granting any ex parte injunction, the trial Court issued notice to the petitioner. Against the said order dated 2-12-2004, the plaintiff respondent No. 3 filed revision No. 167 of 2004 wherein an interim injunction restraining the petitioner from contracting her second marriage was passed on 6-12-2004. This order has been impugned in the present writ petition.
3. The case as set up in the petition is that when the petitioner was going to Firozabad by bus from her residence in Jalesar, District Etah to appear in her examination along with her cousin, she was dragged out from the bus and kidnapped at gun point and whisked away in a waiting Maruti Car. This information was forwarded by her cousin to her father and thus a First Information Report under Sections 366, 368 and 120B IPC was lodged. As the police was not taking any action, the Advocate's Association, Chamber of Commerce, social organizations, social and political leaders resorted to 'Dharna' and 'Gherao' for precipitate action by the local police. It bore results and police action forced the plaintiff into defensive mode. While he was taking the petitioner in the subordinate Courts at Aligarh for recording of her statement in his favour, she found her chance on noticing some policemen and cried for help when the policemen swung into action and rescued her but her captors fled the scene.
4. Thereafter, she was produced before the Magistrate where her statement under Section 164 Cr. P. C. was recorded. As trial against the accused person had commenced, the present suit has been filed only as a counter blast to eek (sic) out a defense. It is stated in the petition that she has not married the plaintiff respondent No. 3 and as such the suit was not maintainable and the injunction could not be granted.
5. The plaintiff respondent No. 3 entered appearance and filed his counter affidavit inter alia, alleging that it was not a case of kidnapping but they were fond of each other and were having good family terms. It is further alleged that both wanted to marry as both were majors but due to the obstruction placed by the petitioner's father, they ran away and visited several places including Haridwar, Kathmandu etc. and contracted a Arya Samaj Marriage. When the factum of lodging of the First Information Report and harassment of the family members came to their knowledge, they themselves went to the Aligarh District Court to surrender and for recording their statements but the petitioner was recognized and was taken away to her father's house after which she was forced to give statement under Section 164 Cr. P. C. against the plaintiff.
6. The statement of the conductor and driver of the bus from which the petitioner was allegedly kidnapped has also been filed on the strength of which it is alleged that it was not a case of kidnapping as the petitioner did not raise any alarm whatsoever throughout. It is also alleged that they had sent their applications to the Senior Superintendent of Police and the Station House Officer stating that it was not a case of kidnapping and their relatives should not be illegally harassed. Along with counter affidavit certain photographs have also been annexed showing their marriage ceremony and taking holy dips in the Ganga at Haridwar.
7. Learned counsel for the petitioner has firstly urged that since Hindu Marriage Act was a special legislation thus provision of Order 39 Rule 1 would not apply and no injunction could be granted to restrain a wife from remarrying. In support of his contention, he has relied upon a decision of the Rajasthan High Court rendered in the case of Smt. Parwati v. Harbindra Singh, (AIR 1980 Rajasthan 249) and the decision of the Patna High Court rendered in the case of T. Modi v. Om Prakash Jaiswal (AIR 1974 Patna 335). In Smt. Parwati's case, supra it was held that Hindu Marriage Act is a special Act and since it does not provide for a suit for injunction, no suit lies. This case was decided prior to the amendment made in the Hindu Marriage Act by Act No. 2 of 1998 with effect from 1-10-1978 whereby Section 6 was omitted. Thus, in my opinion, the ratio would not apply. Even otherwise, Section 5(i) of the Act mandates that marriage may be solemnized between two Hindus subject to the condition that neither has a living spouse. Section 11 declares that a second marriage with the first spouse living would be void. No doubt Hindu Marriage Act is a special Act, but if it is silent on the issue of injunction, the place can be occupied by general legislation especially so to restrain a party from performing a void act. Similarly, the ratio laid down in T. Modi's case (supra) would also not apply.
8. He has then urged that even assuming that her marriage took place according to Arya Samaj rites, her alleged consent was obtained by force under threat. Therefore, it cannot be deemed to be a marriage. In support of this contention he has relied upon a single Judge decision of the Delhi High Court rendered in the case Smt. Anjoo Sharma v. Suresh Kumar (AIR 1998 Delhi 471). The Delhi High Court in the aforesaid case has held that consent by force will not validate the marriage if it could be proved that the consent was obtained by force or it was unvoluntarily. There is no doubt ratio, but the stage in the present case as yet not reached and the parties would have to lead evidence to show whether or not consent was voluntary. Therefore, this ratio is immaterial at this stage.
9. This case has an added nuance to it. It is admitted to parties that both stayed together for more than a month, assuming that the petitioner was held by force, but a medical report is on the record showing that the marriage was never consumed and the lady remained a virgin. No plausible explanation could be offered by the counsel for the petitioner. However, the respondent has brought on record that both had decided not to consumate the marriage till the relationship is approved by the lady's parents. It is heartening to note that even today's world, we have such young ones who have such values which the society of yesteryears cherished.
10. However, several arguments have been raised by the parties, including as to what would have been the situation if the alleged marriage had been consumated, but I am purposely refraining myself from dealing with these arguments as it may not only have some effect on the courts below, but also, to save the agony of the parties of being subjected to public debates.
11. For the reasons given above, I do not find that this is a fit case for interference under Article 226 of the Constitution of India.
12. However, looking to the facts and circumstances of the case, the trial Court is directed to decide the suit No. 761 of 2004 within a period of twelve weeks from the date of submission of a certified copy of this order, if necessary by holding day-to-day hearing. It is further directed that none of the parties shall be granted any adjournment and the court may consider request of either parties to hold in camera proceedings.
13. Looking to the sensitive issue which is involved in the suit, the Superintendent of Police, Etah is hereby directed to provide adequate security to both the parties for their appearance before the trial Court.
14. With the aforesaid observations, this petition is finally disposed off.
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