{"id":233744,"date":"2009-01-27T00:00:00","date_gmt":"2009-01-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/smt-khatiza-tul-qubra-tara-bano-vs-iqbal-mohd-on-27-january-2009"},"modified":"2015-06-20T20:42:14","modified_gmt":"2015-06-20T15:12:14","slug":"smt-khatiza-tul-qubra-tara-bano-vs-iqbal-mohd-on-27-january-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/smt-khatiza-tul-qubra-tara-bano-vs-iqbal-mohd-on-27-january-2009","title":{"rendered":"Smt.Khatiza Tul Qubra @ Tara Bano vs Iqbal Mohd on 27 January, 2009"},"content":{"rendered":"
Rajasthan High Court – Jodhpur<\/div>\n
Smt.Khatiza Tul Qubra @ Tara Bano vs Iqbal Mohd on 27 January, 2009<\/div>\n
       SBC SECOND APPEAL NO.434\/2007-SMT. KHATIZA TUL QUBRA V\/S IQBAL MOHD. : JUDGMENT DTD. 27.1.2009\n\n\n                                                1\/20\n\n\n\n\n          IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT\n\n                                               JODHPUR.\n\n         S.B. CIVIL SECOND APPEAL NO.434\/2007\n\n         Smt. Khatiza Tul Qubra alias Tara Bano\n\n                                                  versus\n\n              Iqbal Mohd.\n\n\n\n                                          PRESENT\n\n                       HON'BLE Dr.JUSTICE VINEET KOTHARI\n\n         Mr.M.A. Siddiqui, for the appellant\n         Mr.Mukesh Patodia, for the respondent.\n\nREPORTABLE\n\n         DATE OF JUDGMENT                         : 27th January, 2009.\n\n                                             JUDGMENT\n<\/pre>\n
         1.      With the consent of counsels, this second appeal is finally<\/p>\n
         disposed of at admission stage. Following substantial questions of<\/p>\n
         law as suggested in the memo of appeal are framed for consideration<\/p>\n
         by this Court:\n<\/p>\n
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                   i)       When the option of puberty is opted by a lady by<\/p>\n
                   her conduct and same is admitted by the opposite party,<\/p>\n
                   in that situation, whether it is necessary to obtain a<\/p>\n
                   decree for dissolution of marriage from a competent<\/p>\n
                   court?\n<\/p>\n
                   ii)      Whether in the facts and circumstances of the<\/p>\n
                   present case, the suit for restitution of conjugal rights is<\/p>\n
                   maintainable?\n<\/p>\n
                   Iii)     When the plaintiff himself admits that present<\/p>\n
                   appellant has entered into second marriage, then the<\/p>\n
                   decree for restitution of conjugal rights is justified or<\/p>\n
                   not?\n<\/p>\n
                   iv)      Whether the decree of restitution of conjugal<\/p>\n
                   rights can be executed when both the parties have<\/p>\n
                   remarried?\n<\/p>\n<\/p>\n
  2.      The plaintiff – husband Iqbal Mohd. filed a suit for restitution<\/p>\n
  of conjugal rights in the trial Court with the averment that his<\/p>\n
  marriage took place with the appellant wife Smt. Khatiza Tul Qubra<\/p>\n
  D\/O Mohd. Aslam Chhipa on 14.4.1984 according to Muslim
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  Sheriyat Law at Bhilwara and she was minor at the time of marriage<\/p>\n
  and was contracted into marriage by her father with the plaintiff and<\/p>\n
  upon attaining majority, she did not join matrimonial home of the<\/p>\n
  plaintiff. Therefore, the plaintiff filed the present suit.<\/p>\n
  3.      The defendant – wife filed written statement to the suit denying<\/p>\n
  the factum of marriage and submitted that she was only 7 years of age<\/p>\n
  at the time of alleged marriage on 14.4.1984 and even if her father<\/p>\n
  contracted her into marriage at the age of 7 years, she had repudiated<\/p>\n
  the said marriage upon attaining the age of puberty of 15 years and<\/p>\n
  has remarried with another person and since the marriage in question<\/p>\n
  was never consummated with the plaintiff, she was not bound to go<\/p>\n
  with him and so called marriage was void and repudiated and<\/p>\n
  therefore, the suit deserves to be dismissed.\n<\/p>\n<\/p>\n
  4.      On behalf of the appellant – wife D.W.1 Mohd. Aslam, father<\/p>\n
  of the appellant – wife              deposed before the trial Court that on<\/p>\n
  14.4.1984 when he contracted the marriage of the appellant with the<\/p>\n
  plaintiff, she was only 7 years of age and she did not understand the<\/p>\n
  meaning of marriage. She never lived with the plaintiff and the
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  marriage was never consummated and the said marriage with the<\/p>\n
  plaintiff was repudiated by her upon attaining the age of puberty i..e<\/p>\n
  15 years. She had married with another person on 7.5.2000 and was<\/p>\n
  living with her husband at Kishangarh.\n<\/p>\n<\/p>\n
  5.      On the basis of evidence, the learned trial Court deciding the<\/p>\n
  said issue in favour of the defendant – wife dismissed the suit of the<\/p>\n
  plaintiff- husband. However, the first appeal filed by the plaintiff –<\/p>\n
  husband before the appellate Court was allowed and the suit was<\/p>\n
  decreed by the first appellate Court                    vide impugned judgment<\/p>\n
  dtd.6.9.2007 and the learned first appellate Court found that since the<\/p>\n
  respondent did not obtain any decree from the Civil Court for<\/p>\n
  dissolution of marriage under Section 2 of the Dissolution of Muslim<\/p>\n
  Marriage Act, 1939, therefore, her first marriage with the plaintiff<\/p>\n
  was valid as per Section 272 of the Muslim Law Sheriyat and thus,<\/p>\n
  the first appellate Court found that the defendant could not prove<\/p>\n
  repudiation of her marriage with the plaintiff and thus decreed the<\/p>\n
  suit.\n<\/p>\n
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  6.      Being aggrieved by the same, the defendant – wife                              has<\/p>\n
  approached this Court by way of present second appeal under Section<\/p>\n
  100 C.P.C.\n<\/p>\n<\/p>\n
  7.      Mr. M. Siddiqui, learned counsel appearing for the appellant –<\/p>\n
  wife submitted that it was not necessary for the appellant- wife to<\/p>\n
  obtain any decree under Section 2 of the Act and exercising her right<\/p>\n
  of “Khyar-Ul-Bulugh” (option of puberty), she had validly<\/p>\n
  repudiated the marriage in question with the plaintiff and had got<\/p>\n
  remarried and the trial Court had found in her favour about the said<\/p>\n
  valid repudiation of marriage with the plaintiff which is alleged to<\/p>\n
  have taken place on 14.4.1984 when she was only 7 years of age and<\/p>\n
  the said marriage was never consummated and she never lived with<\/p>\n
  the plaintiff.           The learned counsel for the appellant – wife<\/p>\n
  submitted that the first appellate Court had, without any valid reasons,<\/p>\n
  reversed these findings of facts of the learned trial Court which could<\/p>\n
  not be said to be perverse in any manner as the requirement of<\/p>\n
  repudiation even under Section 2 of the Dissolution of Muslim<\/p>\n
  Marriages Act was proved by the father of the appellant – wife before<\/p>\n
  the learned trial Court in his statement and, therefore, the suit was
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  rightly dismissed by the learned trial Court and the first appellate<\/p>\n
  Court could not decree the same. He submitted that the present<\/p>\n
  second appeal deserves to be allowed and the judgment of the learned<\/p>\n
  trial Court deserves to be restored.\n<\/p>\n<\/p>\n
  8.      The learned counsel for the appellant relied upon the Division<\/p>\n
  Bench decision of this Court in the case of Mustafa V\/s Smt.<\/p>\n
  Khursida reported in 2006 WLC (UC) 450 and the judgment of<\/p>\n
  Lahore High Court in the case of Mohd. Baksh V\/s the Crown<\/p>\n
  through Khuda Baksh reported in AIR 1950 Lahore 133.<\/p>\n
  9.      On the other hand, Mr. Mukesh Patodia, learned counsel<\/p>\n
  appearing for the respondent – husband relied upon the decision of<\/p>\n
  M.P. High Court in the case of Piramohammad Kukaji V\/s The State<\/p>\n
  of Madhya Pradesh reported in AIR 1960 MP 24 and the decision of<\/p>\n
  this Court in the case of Sahnaz Bano (Smt.) and ors. V\/s State of<\/p>\n
  Rajasthan and another reported in 1999(2) RCD 980 (Raj.). He also<\/p>\n
  relied upon the provisions of Section 275 of the Muslim Sheriyat<\/p>\n
  Law.\n<\/p>\n
 SBC SECOND APPEAL NO.434\/2007-SMT. KHATIZA TUL QUBRA V\/S IQBAL MOHD. : JUDGMENT DTD. 27.1.2009<\/p>\n
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  10.     Having heard the learned counsel and upon perusal of the<\/p>\n
  judgments of two Courts below and the judgments cited at the Bar,<\/p>\n
  this Court is of the opinion that the present second appeal of the<\/p>\n
  appellant – wife deserves to be allowed and the impugned judgment<\/p>\n
  of the first appellate Court dated 6.9.2007 deserves to be set aside<\/p>\n
  and that of the trial Court dtd.17.5.2006 deserves to be restored.<\/p>\n
  11.     Firstly, a look into the relevant Sections of Mohammadan Law<\/p>\n
  in this regard, namely, Sections 272, 273, 274 and 275 may be of<\/p>\n
  relevance and therefore, they are quoted below:<\/p>\n
                   “272.     Marriage         brought       about      by     father      or<\/p>\n
                   grandfather:- When a minor has been contracted in<\/p>\n
                   marriage by the father or father’s father, the contract of<\/p>\n
                   marriage is valid and binding, and it cannot be annulled<\/p>\n
                   by the minor or attaining puberty. But where a father or<\/p>\n
                   father’s father has acted fraudulently or negligently, as<\/p>\n
                   where the minor to a lunatic, or the contract is to the<\/p>\n
                   manifest disadvantage of the minor, the contract is<\/p>\n
                   voidable at the option of the minor on attaining puberty.
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                   273. Repudiation under the Dissolution of Muslim<\/p>\n
                   Marriages Act, 1939:- By the Dissolution of Muslim<\/p>\n
                   Marriages Act, 1939, all restriction on the option of<\/p>\n
                   puberty in the case of minor girl whose marriage has<\/p>\n
                   been arranged by a father or grandfather has been<\/p>\n
                   abolished and under sec. 2(vii) of the Act a wife is<\/p>\n
                   entitled to the dissolution of her marriage if she proves<\/p>\n
                   the following facts, namely, (1) the marriage has not<\/p>\n
                   been consummated, (2) the marriage took place before<\/p>\n
                   she attained the age of 15 years, and (3) she has<\/p>\n
                   repudiated the marriage before attaining the age of 18<\/p>\n
                   years.\n<\/p>\n<\/p>\n
                   274. Marriage brought about by other guardians :<\/p>\n
                   Option of puberty:- When a marriage is contracted for a<\/p>\n
                   minor by any guardian other than the father or father’s<\/p>\n
                   father, the minor has the option to repudiate the marriage<\/p>\n
                   on attaining puberty. This is technically called the<\/p>\n
                   “option of puberty” (khyar-ul-bulugh).\n<\/p>\n
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                   The right of repudiating the marriage is lost, in the case<\/p>\n
                   of a female, if after attaining puberty and after being<\/p>\n
                   informed of the marriage and of her right to repudiate<\/p>\n
                   it, she does not repudiate without unreasonable delay.<\/p>\n
                   The Dissolution of Muslim Marriages Act, 1939,<\/p>\n
                   however, gives her the right to repudiate the marriage<\/p>\n
                   before attaining the age of eighteen years, provided that<\/p>\n
                   the marriage has been consummated. But in the case of a<\/p>\n
                   male, the right continues until he has ratified the<\/p>\n
                   marriage either expressly or impliedly as by payment of<\/p>\n
                   dower or by cohabitation.\n<\/p>\n<\/p>\n
                   275. Effect of repudiation : The mere exercise of the<\/p>\n
                   option of repudiation does not operate as a dissolution of<\/p>\n
                   the marriage. The repudiation must be confirmed by the<\/p>\n
                   Court. Until then the marriage subsists, and if either<\/p>\n
                   party to the marriage dies, the other will inherit from him<\/p>\n
                   or from her, as the case may be.”\n<\/p>\n
 SBC SECOND APPEAL NO.434\/2007-SMT. KHATIZA TUL QUBRA V\/S IQBAL MOHD. : JUDGMENT DTD. 27.1.2009<\/p>\n
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  12.       The Division Bench of this Court in the case of Mustafa V\/s<\/p>\n
  Smt. Khursida reported in 2006 WLC (UC) 450 has held as under:<\/p>\n
                   “14. The Dissolution of Muslim Marriages Act, 1939<\/p>\n
                   specifically deals with the provisions of Muslim Law<\/p>\n
                   relating to the rights of seeking dissolution of marriage<\/p>\n
                   by the woman married under Muslim Law and Section 2<\/p>\n
                   thereof provides for certain grounds on which decree for<\/p>\n
                   dissolution of marriage could be obtained by a woman<\/p>\n
                   married under Muslim Law and the same, with clause<\/p>\n<\/blockquote>\n
                   (vii) (omitting other clauses being irrelevant for the<\/p>\n
                   present purposes), reads thus<\/p>\n
                           “Section 2. Grounds for decree for dissolution of<\/p>\n
                           marriage :- A woman married under Muslim law<\/p>\n
                           shall be entitled to obtain a decree for the<\/p>\n
                           dissolution of her marriage on any one or more of<\/p>\n
                           the following grounds, namely:<\/p><\/blockquote>\n
                           (vii) that she having been given in marriage by her<\/p>\n
                           father or other guardian before she attained the
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                           age of fifteen years, repudiated the marriage<\/p>\n
                           before attaining the age of eighteen years;\n<\/p>\n
                           Provided       that    the    marriage       has     not    been\n\n                           consummated.\"\n\n\n\n<\/pre>\n
                   15.     In case of a girl married during her minority, she is<\/p>\n
                   entitled to be dissolution of marriage on her proving the<\/p>\n
                   facts to the effect that she was given in marriage by her<\/p>\n
                   father or other guardian and that the marriage took place<\/p>\n
                   before she attained the age of 15 years and that she<\/p>\n
                   repudiated the marriage before attaining the age of 18<\/p>\n
                   years and that the marriage has not been consummated.<\/p>\n
                   Such right of repudiation, though mentioned by the<\/p>\n
                   parties and so also by the Family Court in issue No.1 as<\/p>\n
                   Khyar-ul-bulugh, the option of puberty, needs a little<\/p>\n
                   clarification. Puberty specifically means, the earliest age<\/p>\n
                   at which a person is capable of begetting or bearing a<\/p>\n
                   child. In fact, this option of puberty, Khyar-ul-bulugh,<\/p>\n
                   as such was earlier not available outright when the<\/p>\n
                   minor was contracted in marriage by the father or
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                   grand father and such contract was voidable at the<\/p>\n
                   option of minor on attaining puberty only when the<\/p>\n
                   father or grand father as acted fraudulently or<\/p>\n
                   negligently or when the contract was to the manifest<\/p>\n
                   disadvantage of the mnior, as explained by Mulla in<\/p>\n
                   Article 272 of Principles of Mohamedan                               Law<\/p>\n
                   (Nineteenth Edition 1990: Reprint 2003-page 234). The<\/p>\n
                   option of puberty,           Khyar-ul-bulugh that is, giving a<\/p>\n
                   blanket right to the minor to repudiate the marriage or<\/p>\n
                   attaining puberty was available only when the marriage<\/p>\n
                   was contracted for a minor by any guardian other than<\/p>\n
                   the father or the grand father, as explained by Mulla in<\/p>\n
                   Article 274 (supra). However, by the Act of 1939, all<\/p>\n
                   restriction on the option of puberty were abolished and<\/p>\n
                   instead, under Section 2(vii) of the Act, a wife when<\/p>\n
                   given in marriage by father or by any other guardian<\/p>\n
                   has been given the right to the dissolution                      of her<\/p>\n
                   marriage on proof of essential facts about the marriage<\/p>\n
                   having not been consummated, having taken place before<\/p>\n
                   her attaining the age of 18 years. Therefore, the aspects
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                   of puberty as such are not directly relevant while dealing<\/p>\n
                   with this case under Section 2(vii) of the Act and it is<\/p>\n
                   the age at the time of marriage and at the time of<\/p>\n
                   repudiation, below 15 years and below 18 years<\/p>\n
                   respectively, that is decisive to consider validity of the<\/p>\n
                   option, of course with another decisive factor of non-<\/p>\n
                   consummation of marriage. We may, also clarify that in<\/p>\n
                   this view of the matter, the grounds sought to be raised<\/p>\n
                   about the interference about puberty of the respondent<\/p>\n
                   being wholly redundant and irrelevant would deserve no<\/p>\n
                   further consideration.”\n<\/p>\n<\/p>\n
  13.     The Lahore High Court in the case of Mohd. Baksh V\/s the<\/p>\n
  Crown through Khuda Baksh reported in AIR 1950 Lahore 133 has<\/p>\n
  held as under :\n<\/p>\n<\/p>\n
                   “A marriage arranged by the father or the grandfather<\/p>\n
                   during a girl’s minority stands on the same footing, as<\/p>\n
                   regards the option of puberty, as a marriage arranged by<\/p>\n
                   any other guardian. The mere fact that S.2 of Act VIII
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                   (8) of 1939, gives a right to a girl in this position to<\/p>\n
                   obtain a decree for dissolution of marriage does not<\/p>\n
                   imply that apart from the provisions of S.2, she has no<\/p>\n
                   right to exercise the option of puberty in such cases. A<\/p>\n
                   Court’s order is not essential for conferring validity on<\/p>\n
                   the exercise of the option of puberty. The Court’s order<\/p>\n
                   would seem to be only necessary to invest it with the<\/p>\n
                   judicial imprimatur in order to avoid any possible<\/p>\n
                   disputes. In any case, a declaration can be given by the<\/p>\n
                   Court itself even in the course of criminal proceedings<\/p>\n
                   initiated under S. 494, Penal Code to the effect that the<\/p>\n
                   first marriage stands dissolved by the option of puberty<\/p>\n
                   having been exercised.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
  14.     On the other hand M.P. High Court in the case of<\/p>\n
  Piramohammad Kukaji V\/s The State of Madhya Pradesh reported<\/p>\n
  in AIR 1960 MP 24 has held as under:\n<\/p>\n<\/p>\n
                   “Where a Muhammadan minor daughter’s marriage is<\/p>\n
                   contracted by her father and not by any gruadian other
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                   than the father, she has no right of repudiating the<\/p>\n
                   marriage on attaining puberty. Again the mere exercise<\/p>\n
                   of the option of repudiation does not operate as a<\/p>\n
                   dissolution of the marriage. The repudiation is required<\/p>\n
                   to be confirmed by the Court. Even under the<\/p>\n
                   Dissolution of Muslim Marriages Act, 1939, a decree of<\/p>\n
                   the Court dissolving the marriage is necessary.<\/p>\n
  15.     This Court in the case of Sahnaz Bano (Smt.) and ors. V\/s<\/p>\n
  State of Rajasthan and another reported in 1999(2) RCD 980 (Raj.)<\/p>\n
  dealing with the matter under Section 482 Cr.P.C. observed about the<\/p>\n
  requirement of Section 2 of the Dissolution of Muslim Marriage Act,<\/p>\n
  1939. In para 5 and 8 of the judgment, this Court observed as under:<\/p>\n
                   “. In substance his argument is that dissolution of<\/p>\n
                   marriage by Qazi is valid. I am of the view that it is no<\/p>\n
                   so. The Dissolution of Muslim Marriage Act, 1939<\/p>\n
                   enumerates grounds in Sec. 2 on which a woman married<\/p>\n
                   under Muslim Law shall be entitled to obtain a decree for<\/p>\n
                   the dissolution of her marriage. The Dissolution of
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                   Muslim Marriage Act was passed when the ulema<\/p>\n
                   themselves recommended that the federal Government<\/p>\n
                   enact the Act of 1939 providing for nine grounds of<\/p>\n
                   divorce to a muslim woman. It is an Act to consolidate<\/p>\n
                   and clarify the provision of Muslim Law relating to suits<\/p>\n
                   for dissolution of marriage by women under Muslim Law<\/p>\n
                   and to remove doubts as to the effect of renunciation of<\/p>\n
                   Islam by a married Muslim woman on her marriage tie.<\/p>\n
                   A muslim woman has to obtain a decree of dissolution<\/p>\n
                   under this Act in case she wants dissolution on anyone or<\/p>\n
                   more grounds enumerated in Sec.2. Dissolution of a<\/p>\n
                   muslim marriage can be done only by a competent civil<\/p>\n
                   court on the grounds enumerated in Sec.2 of the Act<\/p>\n
                   and not by Qazi appointed by Muslim Personal Law<\/p>\n
                   Board. Even if a Qazi is appointed under the Kazi’s Act<\/p>\n
                   1880, his appointment shall not be deemed to confer any<\/p>\n
                   judicial or administrative powers on him.<\/p><\/blockquote>\n
                   8.      In this view of the matter when petitioner Sahnaz<\/p>\n
                   Bano was under a bonafide belief that court of Qazi<\/p>\n
                   established by Muslim Personal Law Board was
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                   competent to grant her decree of dissolution of marriage,<\/p>\n
                   her bonafide belief shall be looked into by the Trial<\/p>\n
                   Court at the appropriate stage. But so far as order<\/p>\n
                   taking cognizance is concerned, the same cannot be<\/p>\n
                   quashed under Sec. 482 Cr.P.C.”\n<\/p>\n<\/p>\n
  16.     In view of the aforesaid legal position and in view of the<\/p>\n
  binding decision of the Division Bench of this Court as well as<\/p>\n
  decision of Lahore High Court, the view taken by M.P. High Court in<\/p>\n
  Piramohammad Kukaji’s case (supra) is not acceptable to this Court.<\/p>\n
  This Court’s decision in Sahnaz Bano’s case (supra) is also<\/p>\n
  distinguishable. It was a case under Section 482 Cr.P.C. and not about<\/p>\n
  effect of absence of a decree for dissolution under Section 2 of the<\/p>\n
  Act and the Court only held that dissolution could not be done by the<\/p>\n
  Quazi appointed by the Board.\n<\/p>\n
           It is, thus, found here that it is not necessary for Muslim lady<\/p>\n
  to obtain a decree for dissolution of her marriage after she exercises<\/p>\n
  her option of puberty (Khyar-ul-Bulugh) upon attaining the age of<\/p>\n
  puberty i.e. 15 years. If the factum of such revocation or exercise of<\/p>\n
  option of puberty is proved before the trial Court even by the oral
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  evidence and the trial Court returns the findings of facts in her favour<\/p>\n
  in a suit filed by the husband, even then it should be sufficient<\/p>\n
  satisfaction of requirement of Section 2 of the Dissolution of Muslim<\/p>\n
  Marriages Act, 1939.\n<\/p>\n<\/p>\n
  17.     Section 275 of the Muslim Law quoted above also stipulates<\/p>\n
  only this that repudiation must be confirmed by the Court. In the<\/p>\n
  present case the findings of the learned trial Court that father of the<\/p>\n
  appellant – wife had proved such repudiation of marriage with the<\/p>\n
  plaintiff – husband is finding of fact and complies with the<\/p>\n
  requirement of Section 275 of Muslim Law as well as Section 2 of<\/p>\n
  the Dissolution of Muslim Marriages Act. Therefore, the said findings<\/p>\n
  of facts unless found to be perverse could not be reversed by the first<\/p>\n
  appellate court. Requirement to obtain independent decree                          by the<\/p>\n
  appellant – wife by approaching Civil Court is not the sine qua non of<\/p>\n
  law. Therefore, in the present case, the first appellate Court erred in<\/p>\n
  in reversing that finding merely on this ground and decreeing the suit<\/p>\n
  for restitution of conjugal rights in favour of the plaintiff husband.<\/p>\n
  More so, when admittedly, the appellant – wife had married another<\/p>\n
  man way back on 17.5.2000 and ever since is living with her husband
\n SBC SECOND APPEAL NO.434\/2007-SMT. KHATIZA TUL QUBRA V\/S IQBAL MOHD. : JUDGMENT DTD. 27.1.2009<\/p>\n
                                        19\/20<\/span><\/p>\n
  at Kishangarh, therefore, she cannot be asked to walk out of her valid<\/p>\n
  marriage nor she can be forced to leave her peaceful matrimonial<\/p>\n
  home now and abide by the decree in favour of the plaintiff –<\/p>\n
  husband. After all we are dealing with human beings in the present<\/p>\n
  case and not a commodity or property. In the present case, the factum<\/p>\n
  of her marriage with other person on 17.5.2000 was admitted by the<\/p>\n
  plaintiff himself in the cross-examination, therefore, no decree of<\/p>\n
  restriction of conjugal rights could be granted in his favour.<\/p>\n
  18.     Consequently this court is satisfied that the judgment of the<\/p>\n
  first appellate Court dated 6.9.2007 is not sustainable and the same<\/p>\n
  deserves to be set aside. Consequently, the present appeal of the<\/p>\n
  appellant – wife is allowed and setting aside the judgment of the first<\/p>\n
  appellate Court dated 6.9.2007, the judgment of the learned trial<\/p>\n
  Court dated 17.5.2006 rejecting the suit of the plaintiff – husband is<\/p>\n
  restored and it is held that the plaintiff – respondent Iqbal Mohd. Is<\/p>\n
  not entitled to decree for restitution of conjugal rights against the<\/p>\n
  appellant Smt. Khatiza Tul Qubra. All the four substantial questions<\/p>\n
  of law framed above are answered in favour of the appellant – wife<\/p>\n
  and against the plaintiff – husband. No order as to costs.
\n SBC SECOND APPEAL NO.434\/2007-SMT. KHATIZA TUL QUBRA V\/S IQBAL MOHD. : JUDGMENT DTD. 27.1.2009<\/p>\n
                                        20\/20<\/span><\/p>\n
                                                          (Dr.VINEET KOTHARI)J.\n<\/p>\n
\n          Ss\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Rajasthan High Court – Jodhpur Smt.Khatiza Tul Qubra @ Tara Bano vs Iqbal Mohd on 27 January, 2009 SBC SECOND APPEAL NO.434\/2007-SMT. KHATIZA TUL QUBRA V\/S IQBAL MOHD. : JUDGMENT DTD. 27.1.2009 1\/20 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL SECOND APPEAL NO.434\/2007 Smt. Khatiza Tul Qubra alias Tara Bano […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,19],"tags":[],"class_list":["post-233744","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court-jodhpur"],"yoast_head":"\nSmt.Khatiza Tul Qubra @ Tara Bano vs Iqbal Mohd on 27 January, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/smt-khatiza-tul-qubra-tara-bano-vs-iqbal-mohd-on-27-january-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Smt.Khatiza Tul Qubra @ Tara Bano vs Iqbal Mohd on 27 January, 2009 - 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