1( 2026:HHC:5305 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMPMO No.267 of 2021 Date of Decision : 25.02.2026 Smt. Asha Devi ...Petitioner Versus Sudesh Kumari & ors ...Respondents Coram: The Hon’ble Mr. Justice Romesh Verma. Judge. Whether approved for reporting?1 For the petitioner : Mr. Pawan Gautam, Advocate. For the respondents : Mr. Ajay Sharma, Sr. Advocate, with Mr Atharv Sharma, Advocate. Romesh Verma, Judge(oral) The present petition arises out of the judgment as passed by the learned Additional District Judge-1, Kangra at Dharamshala, H.P., dated 16.04.2021 whereby the Civil Miscellaneous appeal filed under Order 43 Rule 3 (r) of the Civil Procedure Code preferred by the present petitioner has been ordered to be dismissed and order dated 14.10.2019, as passed by the Civil Judge, Nurpur, District Kangra, H.P. has been affirmed. 2. The facts of the present case are that the petitioner Asha Devi filed a suit for declaration to the effect that she 1 Whether reporters of Local Papers may be allowed to see the judgment? 2( 2026:HHC:5305 ) alongwith the defendants (presently the respondents) being the legally wedded wife of late Sh. Gandharav Singh, is co- owner /co-sharer in joint possession to the extent of half share in respect of the suit land situated at Mohal Mewhla, Mauza Gurchail, Tehsil , Tehsil Nurpur, District Kangra, H.P. as per jamabandi for the year 2012-13. Further, it was averred that she is entitled to remain as such in future as well as consequential relief of Permanent Prohibitory Injunction, restraining the defendants No. 1 to 4 from interfering, dispossessing , changing the nature, raising any sort of construction, cutting/felling/removing the trees and alienating or creating any charge over the suit land, was prayed. In the alternative, the plaintiff also sought a decree for possession of the suit land in case, the defendants succeed in taking forcible possession of the suit land during the pendency of the suit. The plaintiff precisely has sought decree for declaration with consequential relief of Permanent Prohibitory Injunction against the defendants 3. Alongwith the suit, the plaintiff filed an application under Order 39 Rules 1 & 2 C.P.C, whereby injunction was sought against the respondents/defendants from interfering, forcibly dispossessing, changing the nature, raising 3( 2026:HHC:5305 ) any sort of construction, creating any charge over the suit land, till the disposal of the main suit. 4. The suit has been contested by the respondents/defendants on various grounds such as maintainability , cause of action, non-joinder, valuation etc. On merits, it has been contended in the written statement that defendants No. 1 to 4 are the owners in possession of the suit land and that the plaintiff has no right, title or interest or connection with the suit land. It has further been averred in the written statement that defendant No.1 is the legally wedded wife of late Sh. Gandharav Singh and out of this wedlock, defendants No. 2 to 4 were born. The defendants/ respondents are successors of late Sh. Gandharav Singh and the plaintiff has got no right title of any kind in the suit land. It was specifically denied that the plaintiff is legally wedded wife of late Shri Gandharav Singh and that the marriage of plaintiff with Gandharav Singh was solemnized in the year 2003. It has been averred that the plaintiff is neither legally wedded wife of Gandharav Singh nor she is the legal heir as per Hindu Marriage Act. The defendants prayed for dismissal of suit in its entirety. 5. Alongwith the written statement the defendants/respondents filed reply to the application under 4( 2026:HHC:5305 ) Order 39 Rule 1 and 2 C.P.C whereby all the averments as made in the application were denied and it was averred that the respondents are successors of late Gandharav Singh and the plaintiff has no right, title or interest over the suit land. 6. The learned Civil Judge Nurpur, District Kangra vide its order dated 14.10.2019 dismissed the application filed by the petitioner/plaintiff. 6. Feeling dissatisfied, the present petitioner/plaintiff preferred an appeal in the Court of learned Additional District Judge (1), Kangra at Dharamshala on 18.11.2019, who vide its judgment dated 16.04.2021 dismissed the appeal as preferred by the plaintiff/petitioner. 7. Still feeling aggrieved, the plaintiff has approached this Court by filing instant petition under Article 227 of the Constitution of India against the said order. 8. In order to get injunction order, the plaintiff has primarily to satisfy triplicate test i.e prima facie case, balance of convenience, and irreparable loss or injury in her favour . Admittedly, it has been averred in the plaint itself by the plaintiff that she got married to one Shri Raj Kumar. resident of Village Kanda, PO Barikhet, Tehsil Dalhousie, District Kangra, HP but both of them had divorced to each other by way of 5( 2026:HHC:5305 ) customary divorce vide Talaqnama dated 26.09.2001 in the presence of marginal witnesses. Plaintiff had given birth to one daughter from the loins of her previous husband, Shri Raj Kumar, who is married and presently she is residing at her in- laws house. At the time of solemnization of marriage, Sh. Gandharav Singh, had disclosed that his first wife has already died and she had given birth to two sons out of his loins and both the sons are married and have been residing in Village Soldha Sub Tehsil Kotla, District Kangra, HP. 9. Precisely, it is the case of the plaintiff that after getting divorce from her previous husband Sh. Raj Kumar, on 29.09.2001, she got re-married to Gandharav Singh, who had disclosed her that his wife had already died. 10. The record shows that respondent No.1 is the first legally wedded wife of late Sh. Gandharav Singh and it is also evident from the record that respondent No.1, who is the first wife of late Gandharav Singh, is still alive. The provisions of Section 5 of the Hindu Marriage Act read as follows: 6( 2026:HHC:5305 ) 5. Conditions for a Hindu marriage.— A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:— (i) neither party has a spouse living at the time of the marriage; [(ii) at the time of the marriage, neither party— (a) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or (b) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an extent as to be unfit for marriage and the procreation of children; or (c) has been subject to recurrent attacks of insanity (iii) the bridegroom has completed the age of [twenty-one years] and the bride, the age of [eighteen years] at the time of the marriage; (iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of them permits of a marriage between the two; (v) the parties are not sapindas of each other, unless the custom or usage governing each of them permits of a marriage between the two; 11. From the perusal of provisions of the Act, it clearly demonstrates that the marriage may be solemnized between any two Hindus if neither party has a spouse living at the time of the marriage. In the present case, it is admitted fact that late Sh. Gandharav Singh initially got married to respondent No.1, who is still alive. Therefore, the status of the present petitioner becoming of second wife which is not permissible and accepted 7( 2026:HHC:5305 ) in the eyes of law. The marriage which is alleged to have solemnized is contrary to law and the same is to be proved by the plaintiff in the course of the trial. The record reveals that status of the present plaintiff/petitioner is of second wife, therefore, she cannot claim any right, title or interest over property of late Sh. Gandharav Singh in the attending facts and circumstances of the case. Meaning thereby, the plaintiff has no prima facie case in her favour and the balance of convenience also does not lie in her favour. As far as irreparable loss is concerned it is the respondents who shall suffer irreparable loss in case any injunction is passed against them since respondent No.1 being first legally wedded wife is still alive and respondents No. 2 to 4 are the children from their loins. 12. Learned Trial Court as well as the learned Appellate court have rightly appreciated the point in controversy and have rightly declined the relief of injunction to the plaintiff. The claim of the present petitioner is against the provisions of Section 5 of Hindu Marriage Act. Therefore, no relief can be granted to her in the present case. 13. Consequently, there is no error or infirmity in the judgment and order as passed by the Courts below. Therefore, 8( 2026:HHC:5305 ) the present petition being devoid of any merit deserves to be dismissed. 14. Ordered accordingly. Petition stands disposed of in the aforesaid terms. Pending application(s), if any, also stands disposed of. (Romesh Verma), Judge 25.02.2026 (veena)