It is well settled in law that when an act is made punishable under a statute, the only remedy that can be taken in respect of such act is to invoke the provision of law by which the punishment can be inflicted upon the doer. Bigamy has now been made penal by this special Act and that is a matter for the social upliftment. By making it penal, no right is created in any individual. The right to get such act punished is with the entire community. But that right can only arise after such bigamy as committed and not before.
5. A general argument was advanced on behalf of the opposite party to the effect that bigamy was intended to be prohibited by this special Act and, therefore, it was made penal so that no one will indulge in it. It has also been declared void so as not to create any right of any nature in any of the two contracting parties. In that view, learned counsel contended, it would be open to any person, much more to the first married wife, to invoke the jurisdiction of the court and the special law to prevent such illegal act. I am afraid there is no legal basis for such an argument. When a statute creates a special jurisdiction outside, or in addition to the common forum, such jurisdiction has to be worked within the strict ambit of the special statute.
Rights and remedies created under such Act will have to be confined to the provisions under that statute. If any one has got any other right under the common law or any preexisting law, that may or may not be affected by the subsequent special statute, because that will depend upon whether the subsequent special statute overrides either expressly or by implication the pre-existing right under any law. Since the opposite party 1 avowedly came with, in the ambit of the special Act and before the special tribunal created under the Act, she cannot maintain any proceeding unless it is in conformity with any provision under that statute. In that view, the learned District Judge did not have any jurisdiction to maintain the application (or the suit as it was called) by opposite party 1. His findings that the suit was maintainable and he had jurisdiction to decide that cannot be sustained.
Patna High Court
Umashankar Prasad Singh vs Smt. Radha Devi And Ors. on 15 September, 1966
Bench: Mahapatra, A Sinha
1. This application is directed against an order passed by the learned District Judge, Muzaffarpur, on the 19th February, 1964, in an original (matrimonial) suit instituted by the wife of the present petitioner. She alleged that her husband, who is the petitioner here, was contemplating to marry another lady, who was impleaded as defendant 2 in that suit, in contravention of the Hindu Marriage Act, 1955. The reliefs she sought were that the defendant first party should be permanently injuncted from marrying any other girl, specially the second defendant, whom he was about to marry and that the defendants second party be permanently restrained from marrying the defendant first party. She also impeaded the father and the grand-father of the intended wife of defendant 1 as defendants 3 and 4, and against them also asked for a permanent injunction restraining them from giving defendant 2 in marriage with defendant 1.
After filing the suit, she asked for an interim injunction on the lines on which she prayed for a permanent injunction in the suit. Notice of the suit and the application was given to the defendants and defendant 1, the husband, who is the present petitioner before us, raised objections to the effect that the proceeding was not maintainable before the District Judge and that court had no jurisdiction to proceed with the case or to pass any order of injunction--interim or permanent. The questions of jurisdiction and maintainability were taken up by the court for consideration as preliminary issues in the suit and they were held in favour of the plaintiff, who is opposite party 1 in this revision application. Against that, defendant 1 has come with this application to this Court.
2. The only point for consideration is, as contended by learned counsel, whether the suit as framed and filed by opposite party 1, could be maintained under any provision of the Hindu Marriage Act, 1855. Admittedly, the plaintiff went before the District Judge to invoke the special jurisdiction conferred upon him under the Hindu Marriage Act, 1955, to be referred to hereafter as the Act. Section 19 provides that every petition under the Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction the marriage was solemnized or the husband and wife reside or last resided together. The District Judge comes within the definition of "district court" in the Act. The parties viz., the husband and wife, reside within his original civil jurisdiction. To that extent Section 19 does not come in conflict with opposite party 1.
But the real difficulty is whether a petition of the present nature, which opposite party 1 filed before the District Judge, can be said to be a petition under the Act. She had described that as matrimonial suit and called that a plaint. But those things will not stand in her way if the initiation of the proceeding is taken to have been done by a petition contemplated under the Act. The plaint can be treated as a petition and can be maintained if the Act authorise any such petition to be filed by the wife against her husband for a permanent injunction restraining him from marrying another lady. We find from Sections 9, 10, 11, 12, 13 and 14 that a petition has been provided for in the Act under different circumstances and for different kinds of reliefs and purposes. None of those petitions can cover one of the present nature.
Opposite party 1 mentioned In her plaint or petition that it was under Section 17 of the Act. That section reads as follows:
"Any marriage between two Hindus solemnized after the commencement of this Act if void if at the date of such marriage either party had a husband or wife living; and the provisions of Sections 494 and 495 or the Indian Penal Code shall apply accordingly."
Clearly enough, this section does not authorise any petition to be filed in regard to any marriage between two Hindus, either party having a spouse living. The provision under this section makes such marriage, if solemnized after the commencement of the Act, to be void from the date of such marriage and makes that act punishable under Sections 494 and 495 of the Indian Penal Code. This is a declaratory provision and not a remedial one.
Such a marriage by the husband does not even give any right to the pre-existing wife to seek any relief of divorce or declaration of her marriage to be null and void or to get it annulled by a decree of nullity or for judicial separation as provided under Sections 13, 11, 12 and 10 respectively. Her marriage still remains, even after a second marriage is contracted by the husband, a legal and valid marriage and she continues to be a legally married wife. The other marriage, when solemnized, is void and does not create any right under the law in favour of the husband or wife of the second marriage; on the other hand, the husband (and the second marriage-wife in some cases also) will become punishable. If the Act does not provide any remedy for the first-marriage-wife, she cannot invoke any provisions of the Act for the purpose for which she filed her petition before the District Judge before or after solemnization of the threatened second marriage. She or, for that matter, any one else, can initiate proceedings under the Indian Penal Code with reference to Section 17 of the Act.
3. Learned counsel appearing for the opposite party contended that one of the conditions of a valid marriage between two Hindus, as provided under Section 5 of the Act, is that neither party has a spouse living at the time of the marriage. That has created an obligation for both of them in that respect. If any violation of that obligation is going to be committed by either party to an already solemnized valid marriage, in so far as one of them is about to enter upon a second marriage, he or she can prevent that by initiating suitable proceedings under the Act before the special tribunal created under this Act. I do not think that this argument can be substantiated for the simple reason that within the ambit of the special Act, specific remedies in specified circumstances have been provided for particular persons and none of them includes the remedy by way of an injunction against the husband or wife in regard to a contemplated second marriage; on the other hand, where the Legislature thought of some kind of injunction in regard to a contemplated marriage, it provided for that under Section 6, Sub-section (5) of the Act. That provision is where the consent of a guardian is required for an intended marriage and in the interest of the bride the court thinks it necessary to prohibit the intended marriage by mi injunction. Even in that provision, the power of granting certain injunction is not restricted to the 'District Court' as defined in the Act: The generic term 'court' has been used in Sub-section (5) of Section 6. Learned counsel for the opposite party contended that the power of issuing injunction as provided for under that sub-section is not exhaustive but only illustrative. It is difficult to accept this argument.
4. It is well settled in law that when an act is made punishable under a statute, the only remedy that can be taken in respect of such act is to invoke the provision of law by which the punishment can be inflicted upon the doer. Bigamy has now been made penal by this special Act and that is a matter for the social upliftment. By making it penal, no right is created in any individual. The right to get such act punished is with the entire community. But that right can only arise after such bigamy as committed and not before.
5. A general argument was advanced on behalf of the opposite party to the effect that bigamy was intended to be prohibited by this special Act and, therefore, it was made penal so that no one will indulge in it. It has also been declared void so as not to create any right of any nature in any of the two contracting parties. In that view, learned counsel contended, it would be open to any person, much more to the first married wife, to invoke the jurisdiction of the court and the special law to prevent such illegal act. I am afraid there is no legal basis for such an argument. When a statute creates a special jurisdiction outside, or in addition to the common forum, such jurisdiction has to be worked within the strict ambit of the special statute.
Rights and remedies created under such Act will have to be confined to the provisions under that statute. If any one has got any other right under the common law or any preexisting law, that may or may not be affected by the subsequent special statute, because that will depend upon whether the subsequent special statute overrides either expressly or by implication the pre-existing right under any law. Since the opposite party 1 avowedly came with, in the ambit of the special Act and before the special tribunal created under the Act, she cannot maintain any proceeding unless it is in conformity with any provision under that statute. In that view, the learned District Judge did not have any jurisdiction to maintain the application (or the suit as it was called) by opposite party 1. His findings that the suit was maintainable and he had jurisdiction to decide that cannot be sustained.
6. The result, therefore, is that the rule is made absolute and the order of the court below is set aside. It will, however, be open to opposite party 1 to pursue any other remedy, if she has any, under any law. In view of the circumstances of the present case, there shall not be any order for costs.
A.B.N. Sinha, J.
7. I agree. I have no hesitation in holding that the order dated the 19th February, 1964, passed by the learned District Judge, Muzaffarpur, is wholly untenable in law and cannot be sustained.
8. Srimati Radha Devi, wife of the petitioner, having come to know on the 12th May, 1963, that her husband, namely, the petitioner, was going to take a second wife, to wit, Prabha Kumari, opposite party 2, filed a petition on the 14th May, 1963, before the District Judge, Muzaffarpur, purporting to do so under Section 17 of the Hindu Marriage Act, 1955. In the said petition, she claimed the following reliefs:
"(1) That the defendant 1st party be permanently injuncted from marrying any other girl specially the defendant 2nd party no. 1 whom he is about to marry.
(2) That the defendant 2nd party no. 1 be permanently injuncted from marrying defendant no. 1.
That the defendant 2nd party no. 2 and 3 be permanently injuncted from marrying defendant 2nd party no. 2 with the defendant 1st party no. 1.
(3) That in case the marriage be solemnized in spite of the injunction, the marriage of the defendant 2nd party no. 1 with defendant 1st party be declared void and the full cost of the proceeding be allowed."
Upon the petitioner filing his written statement or rejoinder challenging the maintainability of the aforesaid petition as also jurisdiction of the court, Issues 1 and 1 (a) relating to the maintainability of the petition and jurisdiction of the court were framed and by the order under revision the learned District Judge has decided those issues in favour of opposite party 1 holding that the petition was maintainable and that the court had jurisdiction to proceed with the case.
9. Upon the scheme of the Hindu Marriage Act, 1955, broadly speaking, the reliefs, which can be obtained, are as follows:
(1) Restitution of conjugal rights (Section 9)
(2) Judicial separation (Section 10)
(3) A decree of divorce (Section 13)
and (4) A decree of nullity where the marriage is void (section 11) or where the marriage may be annulled as it is voidable (Section 12).
It is obvious that the petition filed by opposite party 1 does not claim any of the aforesaid reliefs and does not fall in any of the aforesaid categories. The "district court" as defined in section 3 (b) of the Act is a court of exclusive jurisdiction for only mailers falling within the Act. On that simple ground therefore, the petition filed by opposite party 1 was not maintainable; and the learned District Judge had no jurisdiction to either entertain or try the same. The application will, therefore, be allowed and the rule be made absolute.
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