JUDGMENT Hon’ble 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 Mazma 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 for Rukhsati of Nazma after six months, the respondent No. 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 No. 2 to 4 had no right or authority to restrain his wife respondent No. 1 from living with the plaintiff husband. 5. It was alleged in the plaint that respondent No. 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. The trial Court framed following issues . 1- D;k Áfroknh la[;k&2 o 3 Áfroknh la[;k&1 dks vukf/kdkj iwoZd ,oa cy iwoZd vius ?kj esa j[ks gq, gS tSlk fd okni= ds iSjk 6 esa dgk x;k gS fd ;fn gkW rks ÁHkko\ 2- D;k oknh dks Áfroknhx.k ds fo:) okn dk dksbZ okn gsrq ÁkIr ugha gS tSlk fd Áokni= dkxt la0 6d ds iSjk 3 esa dgk x;k gS] ;fn gk¡ rks ÁHkko\ 3- oknh ;fn gk¡ rks fdl vuqrks"k dks ikus dk vf/kdkjh gS\ 7. 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. 8. 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. 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 expert witness who opined that signatures on the Nikahnama were that of Nazma Siddiqui. Two witnesses to the said Nikahnama were also examined by plaintiff Rizwan Ali Khan in support of his case. Rizwan Ali Khan had appeared as P.W. -1 in support of his case and had stated that marriage had been performed in a Masjid at about 10 p.m. on 25.9.1998 in presence of the witnesses and that Kaji Ishrat Sahab and Fakre Alam were also present at the time of the marriage. 9. The trial Court by its judgment and order dated 20.3.2007 decreed the suit against Nazma Siddiqui directing her to live with the plaintiff and perform her marital duties of wife with Rizwan Ali Khan. Defendant respondents No. 2 , 3 and 4 were also restrained from interfering either themselves or through their servants or agents in the peaceful living of the plaintiff and defendant No. 1 as husband and wife. 10. In appeal filed by Nazma Siddiqui, the lower appellate Court reversed the findings of the trial Court. It may be noted that before the first appellate Court also, Nazma Siddiqui had denied her marriage with Rizwan Ali Khan. The first appellate Court vide its judgment and decree dated 10.8.2009 in civil appeal No. 30 of 2007. while reversing judgment and decree of the trial Court, held that no suit for restitution of conjugal rights can be decreed particularly when marriage had not been consummated. The first appellate Court vide its judgment and decree dated 10.8.2009 in civil appeal No. 30 of 2007. while reversing judgment and decree of the trial Court, held that no suit for restitution of conjugal rights can be decreed particularly when marriage had not been consummated. Relying upon the evidence adduced in the case, the lower appellate Court held that admittedly since Nazma Siddiqui had neither cohabited with Rizwan Ali Khan even for a single day nor consummation of marriage with him is established, hence there was no question of restitution of conjugal rights. The Court below also noticed section 281 of the Mohamdden Law and concluded that a husband can bring suit for restitution of conjugal rights only when the marriage has been consummated and if there has been no consummation of marriage, there cannot be restitution of conjugal rights which had not occurred for restitution. 11. Aggrieved by the aforesaid judgment and decree, plaintiff appellant has now come up in the present second appeal seeking relief of setting aside the judgment and decree dated 10.8.2009 passed in civil appeal No. 30 of 2007. Submissions of plaintiff appellant : 12. The counsel for appellant Rizwan Ali Khan submits that the impugned judgment and decree passed by lower appellate Court is illegal, perverse and is based on surmises and conjectures. It is stated that the plaintiff appellant had proved his case beyond reasonable doubt before the trial Court but the lower appellate Court has failed to consider the entire condition under muslim law for restitution of conjugal rights. According to him it was fully established that Nikah was performed on 25.9.1998, then it was obligatory upon the lower appellate Court to have affirmed the judgment and decree of the trial Court. The Court below misconstrued section 281 of the Principles of Mohammedan Law in holding that if the marriage has been consummated and wife without reasonable cause had refused to cohabit with her husband, only then a suit for restitution of conjugal rights will lie; that the lower appellate Court also failed to consider sub-section (3) of section 281 of the Mullas Principles of Mohomedan Law in which it has been provided that if an agreement has been entered into between the parties before marriage enabling the wife to live separately from her husband, then such an agreement would-be void. 13. 13. He then submits that section 281 merely provides that in case a wife without lawful cause ceased to cohabit with her husband, then the husband may sue the wife for restitution of conjugal rights; that lower appellate Court has given a very miotic interpretation of section 281 and has cummulgated an absolutely irrational meaning and scope to the said section; that lower appellate Court has failed to consider the fact that agreement of marriage (Nikahnama) stipulates a condition that the defendant respondent No. 1 will come to live with the plaintiff within six months when the marriage of her eider sister is being solemnized and such an agreement was covered by section 281(3) of the Mullas Principles of Mohammaden Law, and that lower appellate Court has wrongly concluded that section 281 barred filing of the suit in; a case involving the situation in hand and that the same was not applicable in the plaintiff appellant’s case, 14. It is lastly contended that finding of the trial Court in so far as the sanctity of marriage between the plaintiff and respondent No. 1 is concerned, the same has not been upturned/set aside. The judgment and decree of the lower appellate Court being that of reversal, the principles enunciated and settled to be followed in cases where the judgment impugned is sought to be reversed, has not been adhered to. The suit in question in its existing form was rightly maintainable and that the lower appellate Court committed an error in law in holding otherwise. According to the counsel for appellant, the following substantial question of law arise in this second appeal : (1) Whether in the facts and circumstances of the case, the lower appellate Court has misconstrued the provisions of section 281 of the Mullas Principles of Mohammedan Law in holding that a suit by a husband would only be maintainable in case if the marriage has consummated ? (2) Whether under the Muslim Law “Consummation of Marriage” is no bar for bringing in a suit for restitution of conjugal rights and that the lower appellate Court had erred in law in holding otherwise, moreover so when the marriage between the plaintiff and defendant stood fully established. Submissions of defendant respondents: 15. (2) Whether under the Muslim Law “Consummation of Marriage” is no bar for bringing in a suit for restitution of conjugal rights and that the lower appellate Court had erred in law in holding otherwise, moreover so when the marriage between the plaintiff and defendant stood fully established. Submissions of defendant respondents: 15. Per contra, counsel for the defendant respondent submits that appellant is a married person having wife and two children from her; that he is an aged person of more than 40 years of age and is a man of muscle and means; that he had bad intentions and therefore sent an indecent proposal of marriage which was rejected by her and her parents. It is in this backdrop that he threatened her and her family , members that he will teach them a lesson and create circumstances so that she is never able to marry any one and to achieve these objects, he filed the frivolous and false suit for restitution of conjugal rights without there being any cause of action. It is also submitted that the documents filed by the plaintiff in the suit are forged prepared and concocted and that the trial Court has totally failed to appreciate the fact that the defendant respondent in her statement on record had categorically denied the factum of marriage with the appellant which in fact never happened. Reliance has also been placed by the counsel upon AIR 1975 SC 390 and it is stated that it is settled law that expert evidence is a weak evidence and rather is an opinion which does not help the Court in interpretation of law. 16. He urged that the trial Court has wrongly decided factum of happening of marriage and its judgment and decree dated 20.3.2007 is illegal as no Court can force upon a lady by means of a decree to cohabit and restitute conjugal rights with any person against her will particularly when she denies marriage with such a person. It is also stated that even if a lady is married, the decree for conjugal rights is not enforceable and at the most compensation from her property could have been allowed from her property if she had any. 17. It is also stated that even if a lady is married, the decree for conjugal rights is not enforceable and at the most compensation from her property could have been allowed from her property if she had any. 17. It is then stated that a decree of restitution of conjugal rights, can be passed only in the event of a legal and valid marriage in which wife must have cohabited with her husband and lived with him as wife and thereafter refused to have intercourse with her husband. It is only in these circumstances that the decree for re-establishment or reconstitution of conjugal rights could have been passed, but the trial Court has not only failed to understand the import of law of re-constitution of conjugal rights but has also passed a decree which could not have been passed or executed in view of Order XXI, Rule 32. 18. It is further stated that decree for restitution could not have been passed against her by the trial Court for performing duties of a wife with a stranger. Defending the order passed by the first appellate Court, it is submitted that the judgment and decree passed by the lower appellate .Court dated 10.8.2009 is legal and a reasoned one in which the position of section 281 under the Muslim law has rightly been explained and is therefore liable to be upheld. 19. According to the counsel for defendant respondent, the following substantial questions of law arise in this case : (i) whether the decree for establishment or restitution of conjugal rights is executable against a lady, who denies marriage and even if marriage is proved, can she be forced to submit to her alleged husband against her will? (ii) Whether in case where the alleged husband and wife have admittedly not cohabited after the marriage even for a single day and as no consummation of marriage had taken place, can decree for restitution of conjugal rights be passed. 20. It may be noted here that at the initial stage vide order dated 12.11.2009, the Court had sent the matter to the Mediation Centre treating it to be a dispute between the husband and wife. The mediation proceedings in case No. 182 of 2010 also failed as no agreement could be reached between the parties and Smt. Nazma Siddiqui in the second appeal has filed her affidavit denying the marriage. The mediation proceedings in case No. 182 of 2010 also failed as no agreement could be reached between the parties and Smt. Nazma Siddiqui in the second appeal has filed her affidavit denying the marriage. Thus, it is apparent that defendant respondent No. 1- Nazma Siddiqui had denied her marriage with plaintiff appellant at the very stage and every occasion. Conclusions : 21. The first appellate Court has raised a doubt about the marriage having taken place by observing that if the marriage in fact had taken place, then what was the necessity of getting an affidavit from Nazma Siddiqui that she has married with Rizwan All Khan and if any case is filed against him, the same shall be treated as false as she has married with him of her own free will. The first appellate Court has rightly observed that if there is dispute about the marriage and it is not consummated then, there is no question of restitution of conjugal rights. Even Kaji Ishrat Sahab who is said to have performed the marrage, was neither produced nor his signatures on the Nikahnama were got examined by any handwriting expert witness by the plaintiff appellant Rizwan Ali Khan to prove his case. Evidence of alleged witnesses and Vakil to the factum of marriage of Rizwan Ali Khan with Nazma Siddiqui cannot be relied upon for if the marriage had been performed with the consent of parents of Nazma Siddiqui, who are alleged to have requested the appellant for sending their daughter after six months of the marriage, would also have been present in the Masjid Katra but it does not appear from the record that they had also participated in the ‘marriage function of their daughter. This also cast a serious apprehension to the factum of marriage as claimed by plaintiff appellant Rizwan Ali Khan. 22. This also cast a serious apprehension to the factum of marriage as claimed by plaintiff appellant Rizwan Ali Khan. 22. Lastly, provisions of Order XXI, Rule 32(1) and (3), CPC may also be looked into, which provides thus : “(32) Decree for specific performance for restitution of conjugal rights.—(1) Where the party against whom a decree for the specific performance of a contract or for restitution of conjugal rights or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced in the case of a decree for restitution of conjugal rights by the attachment of his property or in the case of a decree for the specific performance of a contract or for an Injunction by his detention in the civil prison or by the attachment of his property or by both, (3) Where any attachment under sub rule (1) or sub rule (2) has remained in force for six months if the judgment-debtor has not obeyed the decree and the decree -holder has applied to have the attached property sold, such property may be sold and out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit and shall pay the balance if any to the judgment debtor on his application and the Court may for good cause extend the time.” 23. A perusal of the aforesaid provision shows that 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. Admittedly, Nazma Siddiqui has no property of her own and if Rizwan Ali Khan claims her to be his wife, only her property could be attached, and therefore in the facts and circumstances of the case, passing of decree by the trial Court which has been set aside by the first appellate Court cannot be enforced The object behind Order XXI, Rule 32(1) and (3), CPC, is that no person can force a female or his wife to cohabit and establish conjugal rights. If the wife refused to cohabit, in such case she cannot be forced by a decree in suit to establish conjugal rights. If the wife refused to cohabit, in such case she cannot be forced by a decree in suit to establish conjugal rights. In the present case, defendant respondent has denied her marriage with Rizwan Ali Khan and even if it is presumed that she was married, the marriage having not been consummated, the trial Court could not have passed a decree in the manner as has been couched directing her for establishing conjugal relations with Rizwan Ali Khan. 24. For the reasons stated above, I do not find any illegality or infirmity in the order passed by the lower appellate Court. Since law already provides for remedy in such circumstances under Order XXI, Rule 32(1) and (3), CPC, no substantial question of law arises for consideration in this second appeal. It is accordingly dismissed.