Judgment: (For information purpose only)
In the Court of Family Judge, Mohonpur, Rajshahi
Present: -Judge, Family Court
February 25, 2021
Family Suit No. 49/2019
Mrs. Versus Mr.
And having stood for consideration to this day, the Court delivered the following judgment: This is a family suit instituted with a prayer for recovering unpaid dower money; and child maintenance against the Defendant.
The Plaint in the nutshell:
Marriage was contracted on a sitting between Plaintiff and Defendant in compliance with Islamic sharia. Dower was fixed at Tk. 1, 50,000. During their wedlock, plaintiff No. 02-03 was born in the worm of plaintiff No. 01 at the parental legitimacy of the defendant. But later on, Defendant demanded dowry; and on refusal, he drove the Plaintiffs away from his abode with trifle apparels on 27/02/2018; 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 child maintenance from the defendant on 28/02/2018. The plaintiffs are at a disadvantage, and the defendant's familial as well as financial conditions are well off; so that he is capable of satisfying them as prayed for.
Written Statement of the Defendant:
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. Defendant stated that the dower money for their marriage contract was fixed at Tk. 30,000 in the presence of local Mawlana. During their wedlock, plaintiffs No. 02-03 were born in the worm of plaintiff No. 01 at the parental legitimacy of the defendant. But later on, the plaintiffs took shelter outside his adobe. After some unpleasant incidents, their marital ties got repudiated. While the Plaintiffs are still staying outside his abode, Defendant often looks after or provides provisions to his children; and he has often even been taking care of his son as per his capacity. Hence, plaintiff No. 01 is not entitled to get monthly maintenance.
Issues:
Considering the pleadings of the parties, the issues are framed in a following-modified way:
Whether the suit is maintainable in the present form and manner, and whether the suit is barred by limitation.
Whether the plaintiff No. 01 is entitled to get unpaid dower money as prayed for; and whether she is entitled to maintenance as prayed for.
Whether the plaintiff No. 02-03 is entitled to maintenance as prayed for.
Whether the plaintiffs should get a decree as prayed for.
Discussions and Decisions
In proof of the claims, the Plaintiff side examined 05 witnesses including herself as PW. 01-05 and put forward some documentary evidence which is marked as Exhibited. On the other side, Defendant examined 03 witnesses including himself as DW. 01-03. CW-01 was also examined by the court.
Issue No. 01:
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. The period of limitation to recover dower money is three years from the date when prompt dower is demanded and refused [Sch. I, art 103, the limitation Act.] In the absence of materials to the contrary, the suit is also not found to be barred by limitation. Hence, these issues are settled in the plaintiff’s favour.
Issue No. 2:
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 not registered in a Kabinnama. However, on perusal of the pleadings, the PW-01, and DW-01, it appears that both parties admitted the facts of solemnization of the valid marriage. No doubt, an admitted fact needs not to be proved. Again, “non-registration cannot vitiate a marriage duly contracted in compliance with Islamic Sharia”. Therefore, it is decisive to the court that the plaintiff is held to be entitled to get her unpaid dower. But the next question as it ensues, how much dower, or whether as much as it is prayed for?
In the pleadings, it reflects that marriage was contracted on a sitting between Plaintiff and Defendant in compliance with Islamic sharia. The record spells out that it was done without registration. The plaintiff side in pleading claims that “dower was fixed at Tk. 1, 50,000/”. But the defendant objects to such a claim. So, adduced evidence is to be considered in this perspective. The PW-01 in evidence also asserted that the marriage was solemnized 16 years ago from today with fixing dower at Tk. 1, 50,000/.
Noticeably, PW-01 and PW-05 stated that one Gias Uddin administered the marriage contract in the presence of Sobuj Rana (PW-2) and Abdul Halim (PW-02). One Gias Uddin was not examined before the court, but the others as mentioned deposed as such in the plaintiff’s favor. Plaintiff No-01 as PW-01 in her cross-examination reiterated her dower as aforesaid and denied the defendant’s suggestion. Pertinently, the evidence adduced by the PW-02, 03, and 05 also stresses the fact of fixing dower money at Tk. 1,50,000/. She was also crossed examined but no contrary evidence was led to bring it out.
Surprisingly, the PW-02, Abdul Halim, is the brother of the defendant, and husband of the plaintiff’s sister. So, he is closer to the defendant than the plaintiff in terms of blood relation. The DW-03 also admitted that the PW-02, Abdul Halim was present at the impugned time. Hence, he stands as a vital witness to the facts of the case. He supported the plaintiff’s claim while standing in the witness box. He is also crossed-examined, but no contrary material was unearthed from his evidence. Again, according to the evidence led by the PW-01, PW-02, one Afser Uddin was present at the time when marriage was contracted. He was examined as PW-05 and supported the plaintiff’s position in relation to their claims. Hence, if the evidence of the plaintiff side is considered jointly, it clearly appears that they made a case for their claims.
On the other hand, the defendant both in pleading and as the DW-01 claimed that their wedlock was brought into being with dower money of Tk. 30,000/ only in the presence of a local maulana. He disregarded the story of fixing dower money at Tk. 1,50,000/. He produced a witness as DW-02 and 03 who is found to be supportive of the defendant in terms of dower money. In addition, he surprisingly mentioned the name of Maulana as Moslem Ali; according to him, he already died. But the fact is that the defendant does not mention his name in his pleading. Even his witnesses DW-02 and 03 are also not such persons who are claimed to be present at the time when dower money was determined. Interestingly, the defendant admitted in his cross-examination that his other witnesses are of the Talak, not of marriage. Since the witnesses of the plaintiffs were evidently shown to be present at the time when dower money was fixed, and the PW-02 is a blood relation of the defendant, the balance of preponderance turns towards the plaintiff’s side.
On perusal of the testimonies available on record, it appears that the defendant is found to be taciturn on the point that who was present at the marriage time, although the plaintiff did it both in evidence. Furthermore, on careful perusal of the materials on the record, it appears to the court that one of the vital witnesses PW-02 Abdul Halim adduced circumstantial evidence in a manner that two lakhs taka was firstly proposed, but one and a half lakh taka as dower money was fixed finally. The PW-05 also concurred with the essence of the PW-02’s evidence on the very point.
Moreover, the comparative statement of the dower money of the plaintiff’s sister provokes no lawful presumption as to the amount of dower money because each fact of every case is to be considered and weighed separately. Hence, the whole evidence on the record as a whole should be noticed and weighted. In the light of the aforesaid discussion as such, the cumulative effect and cogency of legal inference help the court hold that plaintiff No. 01 is entitled to get her full dower as much as prayed for (i.e. a nose pin valued as Taka 500 was instantly given as dower at the time of marriage contract).
The evidence of the DW-01 and the CW-01 and their submitted documents (Exhibit-Ka, etc.) clearly shows that the marital tie is ended in between. Nothing is cogently proved to the contrary. As such, it is decided that the plaintiff is entitled to iddat maintenance.
Issue No. 03:
On the issues of child maintenance, it is very trite to say that the defendant admitted plaintiff No. 02 and 03 as minor children of him, who are now in her mother's custody. It is also admitted in evidence (DW-01) that plaintiff No. 03 has been in her mother’s custody since the demise of their marital tie. But the defendant claimed that plaintiff No. 02 went to her mother’s custody during the closure of the Covid-19 pandemic. Interestingly, the defendant said nothing on the point in his pleading, but in evidence, he pointed it out and the DW-03 supported him on that point. Most importantly, plaintiff No. 02 herself deposed as PW-04 and asserted that she has been out of her father’s house since 2018. She also denied his father’s claim as aforesaid. She also added in her cross-examination that the defendant does not talk to her, let alone taking care of her.
The defendant also took no plea of any other satisfactory disqualifications which may specifically disentitle them from his entitlement to maintenance. Although the defendant claims that he often looks after or provides provisions to the minors and he has often even been taking care of them as per his capacity, the evidence from the defendant’s side sheds no light in relation to that narrative. In cross-examination, the defendant (DW-01) also admitted that he has no proof of such payment. Hence, in the light of such materials of evidence, it is decided that plaintiff No. 02 and 03 are entitled to maintenance from the date of the institution of the suit.
In fact, Muslim personal law naturally requires a father to maintain his children and take them every care, and sons can ask for maintenance until they reach the age of puberty, and also later if they are handicapped or they are penniless. Maintenance of children is incumbent upon the father only where the children possess no independent property or have not reached their puberty, or if reached, are incapable to work. It is 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. So, the Maintenance of children is the responsibility of the father but such maintenance is to be assessed in cognizance of the father’s affordable conditions or the customs and practices. So, it is decided that plaintiff No. 02 and 03 are entitled to adequate maintenance.
As per the evidence available on the record, the minor plaintiff No. 02 is about fifteen years old, and now a student of class ten; and plaintiff No. 03 is of near five old children. They also claimed that the defendant's familial as well as financial conditions are well off; so he is capable of satisfying them as prayed for. On the evidence, they concurred with the same propositions. On the other hand, the defendant also claimed that he is a farmer and works for others. The whole fabric of the evidentiary edifice of the suit does not provide a satisfactory level of accounts regarding the financial conditions of the defendant to determine the quantum of maintenance. Hence, it appears that the record contains no sufficient materials to decide upon the socio-economic conditions of the parties to the suit.
Issue No. 04:
In the light of the aforesaid discussion, decisions, socio-economic conditions of the parties to the extent of what the available evidence goes on as well as the entailing circumstances and conditions reflected in the instant case, it is decided that the suit deserves to be decreed in part. As such, plaintiff No. 01 is entitled to get her unpaid dower money of taka 1,49,500/; and iddat maintenance at taka 4500/(i.e.3x1500). The past maintenance of plaintiff No. 02 and 03 is decided at Tk. 1500/ and Tk. 1000/ respectively per month from the date of the institution of the suit to date; and at Tk. 2500/ and 1500 per month till lawful period from the date. In consideration of pleadings, facts, surrounding circumstances, evidence both oral and 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 contest against the defendant without any order as to costs.
Accordingly, plaintiff No. 01 is entitled to get her unpaid dower money at TK. 1,49,500/; and iddat maintenance at taka 4500/[i.e.3x1500]; being total of Tk. 1,54,000/-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.
It is also ordered that Plaintiff No. 02 and 03 are entitled to get Tk. 30,000 [i.e., 1500x20] and Tk. 20,000/ [i.e., 1000x20] respectively for the last 20 months as child maintenance from the date of the institution of the suit to date.
It is further ordered that plaintiff No. 02 and 03 shall be getting maintenance at the rate of Tk. 2500 and Tk. 1500 per month till lawful period. The said amount of child maintenance may also be revised once a year at the start of every Christian year. The defendant is ordered to pay his child maintenance in the first week of every month. In default, the Plaintiffs may take steps in accordance with the law.
Composed and corrected by
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