1. The broad question which falls for determination in this revision petition is : how far are the provisions of the Code of Civil procedure applicable to proceedings under the Hindu marriage Act ?

2. In a petition for restitution of conjugal rights brought by her against the respondent under section 9 of the Hindu Marriage Act (hereinafter the Act), the petitioner made an application under Order 39 Rules 1 and 2 read with Sec. 151 of the Code of Civil Procedure (hereinafter the Code) restraining him from contracting a second marriage during the pendency of the petition. The trial court issued an exparte interim injunction as prayed for and at the same time issued a notice to the respondent to show cause as to why the same may not be made absolute. The respondent on appearance in the court questioned its jurisdiction to issue temporary injunction on the twin ground that with the exception of Sub-section (5) of section 5, there was no provision in the Act which empowered the court to grant injunctions permanent or otherwise, to which the principles embodied in Order 39 Rules 1 and 2 could be attracted, and that in any case neither any property being involved in the petition nor relief of injunction having been claimed in it. Rules 1 and 2 of Order 39 were wholly inapplicable seeking leave to issue interrogatories to the respondent in terms of Order 11 Rule 1 eliciting a reply from him as to whether or not he was going to take a second wife during the pendency of the proceeding. This application too was resisted by the respondent on the grounds akin to those taken in relation to the earlier application besides contending that provisions of order 11 Rule 1 were not attracted in interlocutory applications. The trial court has by common order refused both these prayers and has at the same time vacated the exparte temporary injunction issued by it earlier. It is this order, which has been attacked in this revision petition.

3- Section. 21 of the Act which makes the provisions of the Code applicable to the proceedings under the Act reads as under:-

"21. Application of Act 5 of 1980.-Subject to the other provisions contained in this Act to such rules as the High Court may make in this behalf all proceedings Under this Act shall be regulated as far as may be, by the Code of Civil Procedure, 1908 (Act 5 of 1908)."

4.On its plain language, the provisions of the Code including those contained in Order 39 shall be applicable to all proceedings under the Act provided they are not inconsistent either with any other provision contained in the Act or the Rules made by the High Court. Admittedly there is neither any provision™s in the Act nor in the Rules made by the High Court which forbids either issuing temporary injunctions in petitions under, the Act or forbids issuing interrogatories to the parties in such cases. There would be, therefore, no bar in issuing temporary injunctions in such cases. Had Sec. 21 been not on the statute, even then by force of Sec 4 of the Code the provisions contained in it would have applied to proceedings under the Act. When, as already noticed, there was not inconsistency between the provisions contained in the Code and those contained in the Act or the Rules made thereunder. The contention of Mr. Hardesh, however, is that the expression" all the proceedings under the Act" occurring in Sec. 21 is too distinct to refer to only to those proceedings which are on pari-materia with the provisions contained in the Code. In other words what the learned counsel suggests is that unless there is to be found a specific provisions in the Act itself conferring power on the court to issue interlocutory injunctions or to permit examination of parties through interrogatories, the provisions contained in Order 39 Rules 1 and 2 and Order 11 Rule 1 would not apply. The Act, adds the learned counsel, is a self-contained Code and is much too impervious to permit any foreign provision to make inroads into it. He has invited my attent

Click Here to Read the rest of this document