Order for not allowing a stay of proceeding of the family suit in the existence of a civil suit challenging Nikahnama
Seen. Heard. Perused the time petition of the defendant and the material available on record. On such perusal and the consideration of the grounds enshrined in the defendant’s petition, it appears that time is preyed on the ground of the Ld. Advocate as he was engaged in many other litigations otherwise than the very suit. On the contrary, in the hearing, the Ld. The plaintiff-side advocate pleaded that the plaintiff-side has sought to fix the suit for an ex parte order since no lawful step is taken from the defendant side. Moreover, the defendant himself was not present in the court while the plaintiff herself turned up before the court with two other witnesses on her behalf. Accordingly, considering the ensuing situations of both sides and the nature of the suit, the time prayer by the defendant side is hereby allowed with costs of Tk. 300/.
On
perusal of the materials on record, it also appears that the defendant placed a
petition dated 23/10/2018 before the court with a prayer for stay of the suit
on the ground that the petitioner defendant himself also instituted another
suit (Other Class suit No. 75.16) challenging the Nikahnama registered on the
occasion of the marriage between the plaintiff and the defendant of the instant
suit. As such, the defendant seeks for an order of stay of the proceeding
of this suit till the disposal of the other class suit No. 75.16.
The pleadings of both parties are
further considered. It transpires that the defendant has gainsaid and denied
the Nikahnama executed between the parties to the suit and claims that there is
no legal marriage in between. Considering such conditions made hereinbefore, it
make the court recollect that albeit the matter of validity of marriage does
not strictly fall within the purview of section 5 of the 1985 Family Court
Ordinance, the family court has jurisdiction to decide the question whether
there is any valid marriage or not (vide 2 MLR AD 153).
Accordingly, the legal position is that when decision on such a
question is required to be taken in a suit for dower like this, the family
court may decide the question, although a lawsuit challenging the marriage
itself is maintainable in civil courts. Moreover, unlike regular civil
courts, the family court established under the 1985 Family Court Ordinance
bears legal mandate for speedy adjudication of the matters in dispute as a
special importance. Hence, the petition dated 23/10/2018 for the stay
of the instant suit is hereby disallowed without costs.
And
considering the matters disclosed hereinbefore, the court is satisfied to not
to proceed ex parte with the proceeding of the suit for the
time being. Thus, the concerned Nikah Registrar is called for
examination before the court on the next date and ordered to turn up before the
court with the concerned Volume of the Nikah Registration.
The
next date is fixed 16.11.2021 for F.P.H for both parties. Inform Ld. Advocates
of both parties of the order and send copies to the concerned as well.