HEADING OF JUDGEMENT IN ORIGINAL
SUIT/CASE
District:
Rajshahi
In the Court of Family Judge, Mohonpur, Rajshahi
Present: - Judge, Family Court
October 26, 2021
Family Suit No. 42/2021
Versus
In the presence of....
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 maintenance against the Defendant.
The Plaint in the nutshell:
A marriage was contracted on a sitting between the Plaintiff and the Defendant on 01/07/2010 in compliance with Islamic sharia. Dower was fixed at Tk. 1, 20,000. During their wedlock, the plaintiff No. 02-03 were born in the worm of the plaintiff No. 01 at the parental legitimacy of the defendant. But later on, the Defendant demanded dowry; and on refusal, he drove the Plaintiff No. 01 along with his children away from his abode with trifle apparels; and then they took shelter in the house of the plaintiff No. 01. From that time, the Plaintiffs are still staying at that abode but the Defendant never looks after or provides provisions to the Plaintiff; and even is not taking their whereabouts. While living with no means, she demanded her dower money and maintenance for their maintenance from the defendant on 30/06/2018. The defendant denied the same and hence is the suit. The plaintiffs also claimed that they are at a disadvantage, but the defendant's familial as well as financial conditions are well off; so he is capable of satisfying them as prayed for.
Written Statement in Brief:
The Defendant contested the suit by filing a written statement denying the material averments made in the plaint. He contended, inter alia, that the Plaintiff lacks in 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. 1, 20,000 in a registered kabinnama. During their wedlock, the plaintiff No. 02 was born in the worm of the plaintiff No. 01-02 at the parental legitimacy of the defendant. The plaintiff No. 01 is a querulous woman. But later on, due to familial discord, the plaintiffs took shelter with her mother. After some unpleasant incidents, their marital ties got repudiated. While the Plaintiffs are still staying at outside his abode, the Defendant often looks after or provides provisions to the Plaintiff No. 02-03 as per his capacity. The defendant claims that he is willing to stay with the plaintiffs in his home.
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 plaintiff No. 01 is entitled
to get dower money as prayed for; and whether she is entitled to Maintenance as
prayed for.
3. Whether the plaintiffs Nos. 02-03 are entitled to maintenance remedy as prayed for.
Discussions and Decisions
In proof of the claims, the Plaintiff side examined 04 witnesses including herself as PW. 01-04. On the other side, the Defendant examined 03 witnesses including himself as DW. 01-03. Both sides put forward some documentary evidence which are marked as Exhibited.
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
recognises any aggrieved person’s right to file a lawsuit in relation to the
matter of dower and maintenance. So, since there appears 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, this issue is settled in the
plaintiff’s favour.
Issue No. 2:
Presumably, where there is a marriage, there is
dower. On perusal of 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 the both parties admitted the
facts of solemnization of the valid marriage and dower was fixed at Tk.
1,20,000/ with instant payment of tk. 500/ in terms of ornament. In addition,
the defendant’s claim of the payment by him of dower money to the plaintiff has
not been substantiated with credible evidence (vide DW 01:
cross-examination).
Most importantly, although the plaintiff No. 01 claims that their marital tie still in the continuity, it is admitted in evidence as the PW-01 that the marital tie between the Plaintiff No. 01 and the Defendant has already dissolved (also vide exhibit: ka-Umma). Therefore, it is decisive to the court that the plaintiff No. 01 is held to be entitled to get her unpaid dower of Tk. 1,19,500/ and some other amount of money in the name of her iddat maintenance as per attributes of them.
Issue No. 03:
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. So much weight is
attached to children maintenance under Muslim law. 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, 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.
In cognizance of such a position of law, now is
to examine the issues of child maintenance. It is very trite to say that it is
also admitted that the plaintiff No. 01-02 are the defendant’s
offspring. The defendant further admitted in evidence (DW-01) that their
children have been in the custody of the plaintiff No. 01 for 3 or 4 years back.
The defendant also took no plea of any other disqualifications which may
specifically disentitle the plaintiff No. 02 from his entitlement to
maintenance. Hence, it is decided that the plaintiffs Nos. 02-03 are entitled
to get maintenance form the defendant.
As per the birth certificates of the minor
plaintiff No. 02-03, their age estimates nine and six years old to date.
The plaintiffs claimed that the defendant's familial as well as financial
conditions are well off; so he is capable of satisfying them as prayed for. In
evidence, the PW 01-04 stated that the defendant is a farmer. But, on the other
hand, the defendant claims as DW-01 that he works as a security guard at a
house in Dhaka and earns about 8/9 thousand taka per month. DW-03 also
concurred with the same proposition. In fact, it appears that the record
contains no sufficient materials to decide upon the socio-economic conditions
of the parties to the suit.
Moreover, the defendant claims that he often
looks after or provides provisions to his children. He asserted that till
today, he paid about a lakh taka at times to the plaintiffs during three or
four year back. But in evidence, he as DW-01 did not specify how he did it or
provide any proof of such payment. Accordingly, it is decided that since no
evidence is shown on the fact of making any payment to the plaintiffs, such a
claim holds no water.
In the light of the socio-economic conditions of the Plaintiffs and defendant to the extent of what the available evidence goes, as well as the entailing circumstances and conditions reflected in the instant case, the maintenance of the plaintiffs Nos. 02-03 is decided at tk. 1000/ per month as past maintenance from the date of the institution of the suit to date; and prospective maintenance at Tk. 1500/ and 2000/ per month in their favour till lawful period from the date. And also, the amount of iddat maintenance for the plaintiff No. 01 is decided at Tk. 3000 (i.e.3x1000). 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 contest in part.
Court fee paid is sufficient. Hence, it is ordered that the suit be decreed in part on contest against the defendant without any order as to costs. Accordingly, the Plaintiff No. 01 is hereby entitled to get Tk. 1,19,500/ as unpaid dower money; and Tk. 3000/- as iddat Maintenance; in toto Tk. 1,22,500 [in words, one lakh, twenty two thousand and five hundred taka only]. The plaintiff No. 02 and 03 is also hereby entitled to get Tk. 78,000 [i.e., (1000x39) x2] for the last 39 months as child maintenance from the date of institution of the suit to date, by virtue of the decree. The Defendant is ordered to pay the decreed amount within next 30 (thirty) days from the date, failing which, the plaintiffs may take steps in accordance with law.
Moreover, the plaintiff No.02 and 03 will be getting maintenance at the rate of Tk. 2000/- and Tk. 1500/ respectively for each month from the date till the lawful period; and Tk. 200/ shall be added up to the said amount at the beginning of January of each Christian Calendar. The defendant is with this ordered to pay the monthly maintenance to the minor child within the first week of every month. However, it is further ordered that the parties may, through the court, revise the amount of the future maintenance once within 36 months.
Composed and corrected by