In a suit for restitution of conjugal rights under the Hindu Marriage Act, 1955, an ad interim injunction restraining the respondent from marrying another person can be granted only if the factum of marriage is prima facie established.

S. P. SRIVASTAVA, J.

( 1 ) HEARD Shri S. P. P. Shrivastava, learned counsel for the plaintiff/appellant. The defendant/respondent has put in appearance in this case at this stage, and Shri T. C. Bansal, learned counsel has filed the vakalatnama on her behalf. Let this vakalatnama be taken on record. Perused the record. The plaintiff/appellant feels aggrieved by an order passed by the trial Court rejecting his application seeking an ad interim injunction restraining the respondent from marrying any other person during the pendency of the suit.

( 2 ) THE materials brought on record indicate that the plaintiff/appellant had filed a suit for restitution of conjugal rights under Section 9 of the Hindu Marriage Act, 1955 (hereinafter referred to as the Act) in the month of October, 1997, asserting that he had married the defendant/respondent according to the Hindu religion on 16-2-1997, and both of them had signed a declaration before the Notary Public, on 21-4-1997, declaring that they were husband and wife. This document has been described as 'ghoshana Patra (Letter of Guarantee ). '

( 3 ) HOWEVER, it was alleged that subsequent to 3-8-1997, the defendant had deserted him without any justifiable reason which necessitated the filing of the suit.

( 4 ) DURING the pendency of the aforesaid suit, the plaintiff filed an application seeking an ad interim injunction restraining the defendant from marrying any other person.

( 5 ) THE aforesaid application was objected to by the defendant/respondent asserting that she had not married the plaintiff and that before the High Court she had clearly stated that no marriage had taken place between her and the plaintiff/appellant, and the writ petition in her name for Habeas Corpus filed by the plaintiff had been dismissed.

( 6 ) THE learned counsel for the defendant/respondent has produced the certified copy of the judgment passed by a Division Bench of this Court disposing of the aforesaid Writ Petition No. 1286 of 1997, and the certified copy of the statement of the defendant recorded before this Court on 23-9-1997. These have been taken on record.

( 7 ) A perusal of the aforesaid statement of the defendant indicates that she had clearly asserted on 25-9-1997 that she had not married and was studying in M. Sc. , Final Year, and further that she did not know Ramvir Sharma at all. She also stated that she had not instructed him to file the Writ Petition No. 1286 of 1997.

( 8 ) THIS Court vide its judgment and order dated 23-9-1997, on the basis of the statement made by the present defendant had dismissed the writ petition.

( 9 ) THE trial Court in the impugned order has observed that in a suit for restitution of conjugal rights filed under the provisions of the Hindu Marriage Act, 1955, the provisions contained in Order XXXIX, Rules 1 and 2 of the Civil Procedure Code, 1908 (hereinafter referred to as the Code) could not be deemed to be attracted, and therefore, no injunction as sought for could be granted.

( 10 ) THE trial Court has placed reliance upon a decision of the Patna High Court in the case of Trilokchand Modi v. Om Prakash Jaiswal, reported in AIR 1974 Pat 335.

( 11 ) THE Patna High Court in its aforesaid decision had held that the provisions of the Code of Civil Procedure, applicable to the proceedings under the Hindu Marriage Act, were subject to the provisions of the Act, itself. It was observed that in case the ultimate relief prayed for in the suit is beyond the jurisdiction of the Court, an ad interim relief in aid of such ultimate relief cannot be granted. In other words, if an application was not maintainable for grant of permanent injunction, no relief by way of grant of ad interim injunction could be given. 11a. However, it was observed that Rule 2 of Order XXXIX of the Code, covered within its ambit breach of contract or other injury of any kind. The question about the maintainability of the application for grant of ad interim injunction under this provision was left undecided

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