NIZAMUDDIN Vs. HUSENI

JUDGEMENT

(1.) The appellant's suit for restitution of conjugal rights was decreed in his favour by the trial Judge, but it has been dismissed by the lower appellate Court on the ground that the marriage was not valid, that it was performed when the wife was only five years of age, that it was never consummated and that on attaining puberty the wife repudiated it. The defendants in the suit were Mst. Huseni the wife (defendant No. 1), her father Tunda (defendant No. 2). Mst. Shubratan mother (defendant No. 3) and her two uncles Subba (defendant No. 4) and Hallu (defendant No. 5).

(2.) The learned counsel for the respondent First of all urges that the suit could not be maintained because the plaintiff was a resident of Pakistan and he had come here just casually. Reliance is placed on Nusserwarji Pestonji v. Eleonora Wadia, AIR 1914 Bom 211(2). In my opinion, this contention cannot be accepted in view of Section 83 of the Code of Civil procedure, which enables an alien friend to institute suit in any Court as if he is a citizen of India. A resident of Pakistan cannot be said to be an alien enemy within the meaning of Section 83 as is clear from the explanation to that section. Pakistan government is not at war with India.

(3.) The next contention of the learned counsel for the respondents is that the suit could not be instituted in a Court at Gwalior. It is urged that a suit for restitution of conjugal rights can be instituted only at the place where the husband resides because it is there that the wife has to perform her marital obligations or at the place where the wife resides because of Section 20(a) of the Code of Civil Procedure. It is common ground that the marriage between the plaintiff and Mst. Huseni respondent No. 1 took place at Lashkar. Now a Mohammedan marriage is not a sacrament, but a civil contract and a suit for restitution of conjugal rights is truly speaking a suit for enforcement of certain obligations arising out of that contract. That being so, such a suit can be instituted by virtue of Section 20(c) at any place where the cause of action wholly or partly arose. This is settled law that in a case arising out of a contract, a suit can be instituted at the place where the contract was entered into. The Court at Gwalior was, therefore, competent to try this suit.