Power of Civil Courts to grant Injunction to Restrain one spouse from entering into Second Marriage

Order 39 of CPC deals with the situations where courts are empowered to grant Temporary Injunctions as an Interim Relief in a Suit. SRA, on the other hand, provides the remedy of Permanent or Perpetual Injunction under Section 38. Under Sub-section (1) of Section 38 of the SRA, 1963, a perpetual injunction may be granted in favour of the plaintiff to prevent the breach of an obligation existing in his favour whether expressly or by implication.

Whenever a suit is filed by one spouse against the other seeking the remedy of Permanent Injunction to restrain the other spouse from committing bigamy/solemnizing second marriage before Civil Court or in an application of interim injunction in a matrimonial proceeding before Family Court, the objections that are raised are as follows:

1. The obligation the breach of which could be  prevented by a permanent injunction under Section 38 SRA should  be demonstrated to be an obligation, arising  out of  a  contract and  that  no such   obligation   could   arise   or  ever   exists  between  Hindu Spouses, since their marriage is not the off-spring of a contract but is in the nature of a sacrament.
2. No injunction can be issued under the Specific Relief Act to restrain a Hindu husband from entering into a bigamous marriage because such a marriage is already forbidden by law and an order forbidding an act which is already forbidden is superfluous; furthermore, a bigamous marriage being void an order restraining a person from entering into a marriage which is no marriage in the eyes of the law is meaningless. Such an order, is no more than a moral injunction to the defendant not to commit adultery with another woman, which is clearly outside the purpose of an injunction.
3. The only remedy available to the plaintiff is to seek a declaration under the provisions of The Hindu Marriage Act by filing a petition before family court after the proposed marriage is solemnized, that the marriage between the defendant and the person whom he/she proposed to marry is a void marriage, and that the suit brought by the plaintiff in the civil court or family court is not maintainable at this pre-mature stage. That means plaintiff has to wait until the defendant had committed an act of bigamy and then to make an application for a declaration that the marriage was void; or
4. To prosecute the defendant for an offence punishable under Section 494 of the Indian Penal Code. So when criminal law provides the remedy no civil remedy can be claimed; 

The following observations of the Patna High Court in Trilokchand Modi v Om Prakash Jaiswal is relevant to look into:

“Keeping in view the aforesaid, the question arises whether there is any provision in the Act which would enable the plaintiff to get the relief of permanent injunction in the present suit. From what I have said earlier it is clear that an application for an order of permanent injunction is not envisaged by the Act aforesaid. The only provision which enables the District Court to issue an order of injunction is contained in Sub-section (5) of Section 6 which states that nothing in this Act shall affect the jurisdiction of a court to prohibit by injunction an intended marriage, if in the interests of the bride for whose marriage consent is required, the court thinks it necessary to do so.”

So, the point of whether Family Courts in a petition under provisions of HMA are capable of passing an injunction restraining one spouse to commit second marriage during the lifetime of other spouse without taking divorce has attracted different views of different High Courts. If we go by the reasoning of Allahabad High Court in the case Dhir Singh vs Kailashi & Ors., it is very much in the power of the Family Court to grant an injunction because they are also guided by the CPC and HMA doesn’t create any express or implied bar to grant an injunction in such cases. It is yet to be seen how the Apex Court of the country will deal with such an issue.