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ALLAHABAD HIGH COURT
Rakesh Tiwari, J.
Rizwan Ali Khan —Appellant
versus
Smt. Nazma Siddiqui & Ors. —Respondents
S.A. No. 1122 of 2009
Decided on 30.4.2010
For the Appellant:Rahul Sahai, Advocate.
For the Respondents:Rizwan Ullah Siddiqui, S.M. Iqbal Hasan, Advocates.
IMPORTANT POINT
Decree for restitution of conjugal rights cannot be enforced except by way of attachment of the property of the other party or compensation and mesne profits.
Headnote:Civil Procedure Code, 1908—Order XXI, Rule 32(1) and (3) —Decree for specific performance for restitution of conjugal rights—Decree could be enforced only by attachment of property of other party or compensation mesne profits—Appellant filed suit for restitution of congujal rights—Respondent denied factum of marriage—1st appellate Court dismissed suit—Second appeal First appellate Court rightly observed that if there was dispute about marriage, it was not consummated then there was no question of restitution of conjugal rights—Plaintiff appellant failed to examine kaji who performed marriage—Respondent had no property of her own and thus decree could not have been executed—No reason to interfere. (Paras 23 to 25)
Result: Appeal dismissed.
Rakesh Tiwari, J.— Heard counsel for the parties at length and perused the record.
2. This second appeal has been filed by the plaintiff appellant challenging validity and correctness of the judgment and decree dated 10.8.2009 passed by Additional District Judge, court No.5, Budaun in civil appeal No.30 of 2007, Smt. Nazma Siddiqui and others v. Rizwan Ali Khan, arising out of judgment and decree dated 20.3.2007 passed in Original Suit No.12 of 1999, Rizwan Ali Khan v. Smt. Nazma Siddiqui and others.
3. Brief facts of the case are that plaintiff appellant Rizwan Ali Khan filed original suit No.12 of 1999, in the Court of Civil Judge (J.D.), Sahaswan, District Budaun against defendant respondent No.1 Nazma Siddiqui for restitution of conjugal rights.
4. According to the plaint case, the plaintiff appellant was married with defendant respondent No. 1 Nazma Siddiqui on 25.9.1998 according to Muslim customs; that the marriage had taken place in Mohalla Katra, Tehsil Sahaswan, Budaun; that Nazma Siddiqui is major and is a graduate; that she had married with the plaintiff of her own free Will at Masjid Katra; that as elder sister of Nazma Siddiqui had not been married by that time, hence she and her parents insisted for sending of the bride (Rukhsati of Nazma Siddiqui) after six months; that they had assured the plaintiff that during this period they would also get married the elder sister of Nazma Siddiqui and that believing upon the aforesaid assurance, the plaintiff allowed Smt. Nazma Siddiqui to remain at her parents house. However when the plaintiff requested or Rukhsati of Nazma after six months, the respondent Nos. 2, 3 and 4 did not send her on one pretext or the other and ultimately on 24.12.1998 they finally refused to send her. It was alleged in the plaint that respondent Nos. 2 to 4 had no right or authority to restrain his wife respondent No.1 from living with the plaintiff husband.
5. The defendant respondents put in appearance and filed their written statement inter alia that no marriage of plaintiff had taken place at all with respondent No.1 Nazma Siddiqui on 25.9.1998 or at any other point of time that claim of the plaintiff is a concocted story and is false; that plaintiff Rizwan Ali Khan is a man of wealth and muscle, he is 40 years old handicapped person and is already married having two children and that when he sent his proposal of marriage with Nazma Siddiqui, it was refused, hence he has threatened to destroy her life and the suit for restitution of conjugal rights is a sequel to these threats.
6. In rebuttal, the plaintiff came out with the case that marriage of the plaintiff with Nazma Siddiqui had taken place in presence of Kazi Ishrat Sahab and Fakre Alam in Masjid.
7. The trial court framed following issues: (Vernacular matter)
8. An additional issue was also framed on 7.4.1999 to the effect as to whether marriage of plaintiff with Nazma Siddiqui had taken place on 25.9.1998.
9. From the perusal of record and judgment of the court below it appears that respondent No. 1 Nazma Siddiqui had denied her signatures on the Nikahnama and also the factum of marriage with plaintiff appellant Rizwan Ali Khan. It appears that copy of Nikahnama and affidavit was also filed which is said to be of Nazma Siddiqui wherein she has stated that she is major and has married Rizwan Ali Khan according to Muslim customs without any influence. Photographs of Nazma Siddiqui and that of Rizwan Ali Khan were also affixed in the said affidavit. Perusal of the affidavit shows that it was averred therein that if any first information report or case is lodged against Rizwan Ali Khan her husband, then the same be treated as false since she has married with him with her own free Will. The affidavit is also alleged to be in the handwriting of Nazma Siddiqui. Since she denied her signatures on the Nikahnama and the factum of alleged marriage, her signatures were got verified and tallied with her signatures on the affidavit by the exp
