Judgment: (only for information purposes).
In the
Court of Family Judge, Mohonpur, Rajshahi
Present: - Judge, Family Court
Family Suit No. 07/2021
Plaintiff............. Versus Defendant..................
And having stood for consideration to this day, the Court delivered the following judgment: This family suit is instituted with a prayer for recovering unpaid dower money with maintenance against the Defendant.
The Plaint in the nutshell:
A marriage was contracted and registered between Plaintiff and Defendant on 02/08/2015 in compliance with Islamic sharia, and dower was fixed at Tk. 2,01,001/. Plaintiff No. 02 was born in the womb of plaintiff No. 01 in the parental legitimacy of the defendant. But later on, the Defendant demanded dowry; and on refusal, he drove the Plaintiffs away from his abode with trifle apparels; and they then took shelter in her father’s house. From that time, the Plaintiffs are still staying at that abode but the Defendant never looks after or provides provisions to Plaintiff, and even is not taking their whereabouts. While living with no means, she demanded her dower money and maintenance from the defendant on 10/01/2017. Upon denial of such a demand, the plaintiffs have brought in the very suit. The plaintiffs claim the defendant’s ability to satisfy them as prayed for.
The Pleading of the Defendant:
The Defendant contested the suit by filing a written statement denying the material averments made in the plaint. He contended, inter alia, that Plaintiff lacks in the cause of actions and locus standi, the impugned facts are false and fabricated, and the very suit is legally untenable, unjustifiable; and directly dismissible. The Defendant stated that the dower money for their marriage contract was fixed at Tk. 2, 01,001/ with instant payment of TK. 1000/. Plaintiff No. 02 was born in the womb of plaintiff No. 01 in the parental legitimacy of the defendant. However, he also claims that his marriage was an outcome of coercion and fraud practiced upon him. But later on, due to familial discord, he repudiated their marital tie in between. And thereafter, he remarried another woman. Plaintiff No. 02 is now in her grandparents’ house. The defendant has no ability for satisfying the amount as prayed for.
Issues:
Considering
the pleadings of the parties, the issues are framed in the following-modified
way:
1. Whether the suit is maintainable in the present form and manner.
2. Whether the suit is barred by limitation.
3. Whether plaintiff No. 01 is entitled to get dower money and
maintenance and whether plaintiff No. 02 is entitled to maintenance.
4. Whether the plaintiffs are entitled to get remedy as prayed for.
Discussions and Decisions
In proof of the claims, the Plaintiff side examined witnesses as PW. 01; and submitted a document marked as exhibit No. 01-02. On the other side, Defendant examined a witness as DW. 01; and submitted documents marked as exhibit No. Ka-Ga.
Issue No. 01 and 02:
The plaintiffs filed the suit before this family court having jurisdiction under the provisions of the Family Court Ordinance, 1985; and paid proper court fees, with a prayer for a decree for dower and maintenance. Section 05 of the Family Court Ordinance, 1985 recognizes any aggrieved person’s right to file a lawsuit in relation to the matter of dower and maintenance. So, since there appear no contrary materials to the aforesaid premise, it is decided that the suit is maintainable in the current form and manner. Again, the whole fabric of the materials shows that the suit is not barred by limitation. Hence, these issues are settled in the plaintiff’s favor.
Issue No. 03:
Presumably, where there is a marriage, there is a dower. But it is pertinent to mention that the materials available on record, it appears that the marriage was registered in a Nikahnama (exhibit-01). However, on perusal the pleadings, the PW-01 and DW-01, it appears that both parties admitted the facts of solemnization of the valid marriage and dower was fixed at Tk. 2,01,002/ and TK. 1000/ was paid at the very sitting.
Most importantly, on perusal of the case record (exhibit Ka-Ga), it appears to the Court that the defendant served notice of Talaq upon the concerned Mayor of the Concerned Pouroshava and the same office acknowledged the receipt of such notice on 31/05/17. No contrary material is led by plaintiff No. 01, except the mere fact of the denial by plaintiff No. 01 of receipt of the notice served upon her (vide PW-01). As per the provisions of section 7 (3) of the 1985 Family Court Ordinance, a Talaq shall be effective after the expiry of ninety days from the day on which notice is delivered to the concerned Chairman/Mayor. Hence, it is decided that their marital tie between the Plaintiff and the Defendant has already ended with dissolution. Hence, it is decided that the whole unpaid dower money of tk. 2, 00,001/ is unambiguously immediately payable. Therefore, it is decisive to the court that the plaintiff is held to be entitled to get her whole unpaid dower and iddat maintenance.
Now,
the next question as it ensues, how much provisions of maintenance, or whether
as much as it is prayed for? But before discussing it, it is high time to
decide upon child maintenance. Upon close perusal of the defendant’s
pleading and the deposition given as DW-01, it lucidly admittedly appears that plaintiff No. 02, a minor child, is now in the custody of his mother,
plaintiff No.01. According to the birth certificate of the minor, he appears to
be a child of five years. The defendant also added up to his evidence as DW-01
that their child, plaintiff No. 02, has been in her mother's custody since he
declared Talaq; and paid no provisions for her meanwhile. Exhibit No. Ka
demonstrates that he served his notice of Talaq upon his spouse on 16/05/2017.
Therefore, it is evidently decided that the minor child is out of the defendant's
custody since the very date.
In essence, it would be verbose to reiterate that the law governing the
very suit vindicates the rights of the child to be maintained by the father despite the
fact that the child is in the custody of the mother or grandmother. It is even
permissible to be underscored by saying that the mother cannot be compelled to
provide milk to a child but the father is under a duty to provide a nurse. He
is bound to maintain even if he is indigent or the children are in the custody
of the mother. But such maintenance is to be assessed in cognizance of the
father’s affordable conditions or the customs and practices. Accordingly, plaintiff No. 02 is entitled to
get maintenance till the lawful period.
Issue No. 04:
The
plaintiffs claimed that the defendant's financial conditions are well off. He
is capable of satisfying them as prayed for (vide pleading). On the evidence, the
plaintiff-side however did not concur with the same propositions. On the other
hand, the defendant also claims in his pleading that he is poor labor, and
has no landed property in his credit. In evidence, the defendant also is found
to be reticent but in cross-examination, he admitted that he works with steel
furniture, and has no private landed property. He also added that he has
already remarried another woman prior to just a year. In fact, it appears that
the record contains no sufficient materials to decide upon the socio-economic
conditions of the parties to the suit.
However, the concept of ‘maintenance’ includes food, raiment, and lodging
but this definition of ‘maintenance’ is not exhaustive. This word includes
other necessary expenses for the mental and physical well-being of a minor,
according to his status in society. Educational expenses were included therein.
[Para 369, Mulla, Principles of Mahomedan Law, 18th Ed. (1977) reprint 1985, p.
382)]. Therefore, Plaintiff No. 02 is entitled to ‘adequate’ maintenance
from May 2017 to the lawful period.
That is why, in the light of the socio-economic conditions of the defendant and the lifestyle of the plaintiffs to the extent of what the available evidence goes, along with entailing circumstances and conditions reflected in the instant case, it appears to the court that the plaintiffs have proved their case with satisfactory and convincing materials of evidence, but in part. Accordingly, in consideration of pleadings, facts, surrounding circumstances, evidence both the oral and the documentary on record, the court is of view that the suit deserves to be decreed on the contest in part.
Court fee paid is sufficient.
Hence, it is ordered
that the suit is decreed in part on the contest against the defendant without any order as to costs. Accordingly, Plaintiff No. 01 is entitled to get Tk. 2,00,001/- as unpaid dower money; and Tk. 3000/- as iddat Maintenance; in toto, Tk. 2,03,001/- [i.e. (2,00,001+3000] by virtue of the decree. The defendant is ordered to pay the decreed amount within the next 30 (thirty) days from the date, failing which, Plaintiff may take steps in accordance with the law.
Accordingly, Plaintiff No. 02 is also entitled to get past maintenance of Taka 49,000/ [i.e., 1000x49] for a period of 49 months from May 2017 by the virtue of the decree. The defendant is ordered to pay the decreed amount within the next 30 (thirty) days from the date, failing which, the plaintiff may take steps in accordance with the law. In addition, Plaintiff No.02 will be getting maintenance at the rate of Tk. 1500/- for each month from the date till lawful period. The defendant is directed to pay the monthly maintenance to the minor child within the first week of every month. It is also ordered that plaintiff No. 02 may through court revise the amount of the prospective maintenance once within a period of twelve months.
Seal of the Court Signature of the Judge
Date ......................... Family Court .........