IMPORTANT POINT
If marriage itself is doubtful, suit of appellant for restitution of conjugal rights is bound to fail.

Ashutosh Kumar, J.—Appellant Raisuddin in RSA Nos.3/2012 and 4/2012 has challenged the judgment and decree of the first Appellate Court dated 08.11.2011 in RCA Nos.9/2009 and 2/2010 whereby the judgment of the Trial Court in Suit No.431/2006, lodged at his instance for restitution of conjugal rights which was dismissed by the Trial Court and Suit No.432/2006, filed by the respondent seeking declaration that the “nikahnama” regarding “nikah” between him and the respondent is null and void and permanent injunction, restraining the appellant from making any claims towards the respondent in the capacity of husband, which too was dismissed by the Trial Court has been set aside and the suit of the respondent (Suit No.432/2006) has been decreed whereas suit of the appellant (Suit No.431/2006) has been dismissed.

2. In order to appreciate the facts of the two suits lodged by the appellant as well as the respondent respectively, it would be first necessary to set out in brief the respective cases of the appellant and the respondent.

3. The respondent, Mst.Gulshan filed a suit (Suit No.432/2006) on 09.06.2003 against the appellant seeking the nikahnama between them as null and void document. The appellant in turn, filed a suit (Suit No. 431/2006) on 14.08.2003 for restitution of conjugal rights.

4. Both the suits were amalgamated by order dated 02.03.2005 of the Trial Court.

5. The claim of the respondent as per her plaint is that she, after passing secondary school examination in 1996, had been pursuing her graduation course whereas the appellant who claims himself to be her husband is an aged person and is involved in the vocation of selling clothes on pavement. The appellant came to know the respondent when she took tuition classes of the appellant’s nephew and the niece. The appellant fell in one sided love with her without any corresponding concurrence by the respondent. The respondent claims to have been persistently stalked for about two years and the appellant even tried to create troubles for her by informing her employer that she was married to him. The respondent completely denied about any nikah having taken place and alleged that nikahnama is illegal, having no forbearance in law. A categorical assertion has been made by the respondent in her complaint that no relationship ever existed between her and the appellant. Under the aforesaid circumstances, Suit No.432/2006 was filed for declaring the so called “nikahnama” as a null and void document and for restraining the appellant from making any claims about his having wedded her.

6. The aforesaid suit of the respondent was contested by the appellant with the plea that nikah had taken place with the consent of the respondent on 02.04.2001 when the respondent was a major. It was averred in the written statement by the appellant that the mother of the respondent was in debt of him and while the respondent gave tuitions to his nephew and niece, he fell in love with the respondent and decided to marry her. Because the marriage between the appellant and the respondent would not have been acceptable to the mother of the respondent, the respondent had agreed to join the appellant as his wife later after convincing her mother that she has married the appellant of her own choice. It was also the case of the appellant that at the insistence of the mother, the respondent has preferred the aforesaid suit.

7. The respondent in turn has totally denied all such assertions of the appellant.

8. Suit No.431/2006, as stated above, was instituted at the instance of the appellant wherein the same story was narrated which finds mention in the written statement in the suit filed by the respondent. It was alleged by the appellant in his suit that after coming to know of the relationship between the appellant and the respondent, the mother of the respondent assaulted the respondent and forced her to file the suit for declaration and injunction.

9. Since both the suits were taken up together, the Trial