Where More Efficacious Remedy Is Available U/S 41(h) Specific Relief Act, Party Is Under Legal Obligation To Opt It: Punjab & Haryana High Court

The bench comprising Justice Fateh Deep Singh appreciated the submissions of the counsel that the husband is trying to seek a mere declaration and mandatory injunction with consequential relief of permanent injunction on the ground that judgment and order passed in an application under Section 125 CrPC is an outcome of fraud and so the other petitions under the cruelty, maintenance, alteration in the maintenance allowance and proceedings under the Protection of Women from Domestic Violence Act, 2005 are misuse of the process of Court.

Appreciating the submissions of the counsel, what the husband is trying to seek in the suit (Annexure P5) is a mere declaration and mandatory injunction with consequential relief of permanent injunction for a decree that judgment and order dated 26.08.2010 is an outcome of fraud and so the other petitions under the cruelty to married women; maintenance and alteration in the maintenance allowance including proceedings under the Protection of Women from Domestic Violence Act, 2005 have been termed to be the misuse of the process of Court.

The battle between the petitioner-husband and respondent-wife did not subside even after divorce and proceedings under Section 127 Cr.P.C. were invoked by the petitioner-husband along with the present revision petition challenging the orders rejecting application for grant of a temporary injunction against the respondent-wife.

The court noted that by the judgment and order dated 26.08.2010, maintenance allowance has been granted to the wife and the minor child and under the relevant provisions of Cr.P.C., only a revision lies under Section 397, 398, and 399 Cr.P.C. which has not been brought to the notice of this Court, therefore mere challenge to a finding in a civil suit is not permissible in light of the well-settled principles of law that provide that recourse has to be laid to the provisions enshrined under the law.

The judgment and order dated 26.08.2010 (Annexure P11) is passed in an application under Section 125 Cr.P.C. for grant of maintenance allowance whereby maintenance allowance has been granted to the wife and the minor child by the Court of learned District Judge, Family Court, Faridabad. Under the relevant provisions of Cr.P.C., only a revision lies under Section 397, 398 and 399 Cr.P.C. and which has not been assailed of nor brought to the notice of this Court by learned counsel for the petitioner and therefore, mere challenging such a finding in a civil suit certainly is not permissible in view of the well-enunciated law that recourse has to be laid to the provisions enshrined under the law and since the statute provides a remedy to challenge this order, the same needs to be followed which the petitioner has failed to do so.

By virtue of the order dated 31.05.2018, an ad-interim injunction was sought in this suit which was declined because there is a specific remedy under Order 42 CPC which has never been assailed of. Moreover, to seek enforcement and grant of maintenance, provisions of Chapter IX have been laid down under Cr. P.C that needed to be followed by the petitioner which he did not.

Thus, in the light of well-settled law and the statutory provisions under Section 41(h) of the Specific Relief Act, the party is under a legal obligation to choose the more efficacious remedy available there.

Thus in the light of well settled law and the statutory provisions by way of Section 41(h) of the Specific Relief Act where a more efficacious remedy is available, the party is under legal obligation to choose that one.

For the reasons discussed above, the court dismissed the petition finding it sans any merit.

Case Title: Amir Kapoor Versus Nisha & another 

Citation: 2022 LiveLaw (PH) 95

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