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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD.

CIVIL REVISION APPLICATION NO. 70 OF 2022

Vajeeha Khan w/o Rizwan Khan Pathan ...Applicant

Versus

Rizwan Khan s/o Moosa Khan Pathan

...Respondent

.....

Mr. M. B. W. Khan h/f Mr. S. B. Khan, Advocate for the applicant

.....

CORAM : R. G. AVACHAT, J.

DATE : 07^th JULY, 2022

PER COURT : -

1.

The challenge herein is to the order rejecting

application moved under Order VII Rule 11(d) of the Code of

Civil Procedure.

2.

The applicant herein is the wife of respondent. The

respondent has filed a suit for restitution of conjugal rights. The

learned Advocate for the applicant invited attention of this Court

to the title of the suit wherein it has been stated – suit for

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restitution of conjugal rights under Section 9 of the Code of Civil

Procedure. According to learned Advocate for the applicant,

Section 9 of the Civil Procedure Code has no application to the

suit for restitution of conjugal rights between persons professing

Islam. According to him, when husband has contracted second

marriage, he is not entitled for the relief of restitution of conjugal

rights. Learned counsel relies upon the judgment of the Madras

High Court in the case of Kothar Beevi alias Badrunnisha v. K.

Aminudeen reported in AIR 2018 Madras 60.

3.

Considered the submissions advanced.

4.

Article 281 of the Mohammedan Law speaks of a suit

for restitution of conjugal rights. It is true that in the plaint

caption, it has been described that a suit to have been filed under

Section 9 of the Code of Civil Procedure. One has to go by the

substance and not the form or title. It is not that a suit for

restitution of conjugal rights cannot be filed by a Muslim spouse.

So far as the claim that the plaintiff would not be entitled to

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restitution of conjugal rights on the ground of having contracted

second marriage is concerned, it is a matter of evidence. The trial

Court has rightly rejected the application. In paragraph 9 of the

plaint, it has been specifically averred that the applicant-wife

(defendant in the suit) left matrimonial home on 03.09.2020

taking the children along with her.

5.

This Court finds that none of the clauses of Order VII

Rule 11 of the Code of Civil Procedure gets attracted. No fault

can be found with the order passed by the trial Court. This Court

is, therefore, not inclined to even issue notice in the matter. The

application is dismissed.

[ R. G. AVACHAT ]

JUDGE

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