BANGLADESH FORM NO. 3701
HIGH
COURT FORM NO. (J) 2
HEADING OF JUDGEMENT IN
ORIGINAL SUIT/CASE
District: Rajshahi
In the Court of Family Judge (Mohonpur), Rajshahi
Present: Md. Abdul Malek, Senior Assistant Judge
Family Suit No. 64/2019
Mr. Md. Shahibul Islam, Plaintiff Versus Mrs. Morium Nesa (Mou), Defendant
The
suit’s coming on trial from 17/01/21 to 30/09/2021.
In
the presence of
Mr. ….……....Leaned Advocate for the Plaintiff.
Mr. ................Leaned Advocate for the Defendant.
And having stood for consideration to this day, the Court delivered the following judgment: This is a family suit for child custody.
The Plaint in the nutshell:
A daughter named Mst. Fariha Khatun was born in the womb of the Defendant
at the Plaintiff’s paternal legitimacy. In the aftermath, due to family feud, the
defendant and plaintiff repudiated their marital tie on compromise on
The Written Statement in brief:
The Defendant No. 01 contested the suit by filing written statement denying the material averments made in the plaint. He contended inter alia that the Plaintiff lacks in locus standi, the impugned facts lack in veracity, and the very suit is legally untenable, unjustifiable; and dismissible for cloudy cause of actions. The Defendant also stated that she is her biological mother and offers a safe place for her. The child in question has been in her custody since their marriage was dissolved. She also claims that if the child is given in the plaintiff’s custody, she would not be properly cared, treated, educated, and overseen. In addition, she objects to the plaintiff’s custody over the child because the latter even does not know the actual name of the child in question that evidences negligence to the child. Hence, the suit deserves to be dismissed with costs.
Issues:
Considering the pleadings of the parties, the issues are framed with
modifications for discussion in the following way:
1.
Whether the suit is
maintainable in the present form and manner.
2.
Whether the plaintiff is
entitled to get custody of the minor in questions.
3. Whether the plaintiff is entitled to get remedy as prayed for.
Discussions and Decisions:
In proof of the claims, the Plaintiff examined himself as PW 01; and produced other two witnesses as PW2-3 and some documents marked as exhibit No. 01-02. On the other side, the Defendant in support of her claim examined herself as DW- 01; and produced another witness as DW-02. After-trial reconciliation attempts become failed and arguments from both parties are heard.
Issue No. 1, 2 and 3:
All issues
are jointly taken up for brevity, convenience, and cohesion. Upon considering
the materials on record, it unambiguously appears that both the parties in
their pleadings admitted by that ‘during the continuation of the
wedlock between the plaintiff and the defendant No. 01, the minor child
(defendant No. 02) was born in the womb of the Defendant at the Plaintiff’s
paternal legitimacy. It is also admitted that their wedlock exists no more; and the
minor daughter has been in the custody of the defendant mother since
11/01/2018. Since evidence shows that the minor child is now in the custody of
the defendant mother, the suit is hereby held to be maintainable in the present
forma and manner.
02. Now, the court is to decide upon whether the plaintiff
should get custody of the child in question. It is trite to highlight that the
plaintiff is a father and the defendant is a mother of the daughter child in
question. Evidence shows (birth certificate) that the child in question is less
than seven years old. Undoubtedly, the general principle of Muslim law
prioritizes the fathers’ custody of older boys and the mothers of older girls.
Since the law of child custody in such a situation gives a preferential right
of custody to the mother until and unless she is disqualified, it cogently
appears that the mother defendant holds preferential positions over the
plaintiff father.
03. To put points relating the facts of any disqualification
attributed to the custodian mother, the plaintiff claims in his pleading the
existence of marriage of the mother defendant with another man; firstly, with
one Rafiqul Islam, and secondly, with one Md. Ibrahim. In proof of his claims,
he also submitted the copy of their Nikahnama (Ext: 02) and asserted in his
evidence (PW-01) that although the defendant’s marriage with Rafiqul Islam
exists no more, the defendant is now residing with Md. Ibrahim. So, it becomes
clear that the plaintiff claims that the defendant's remarriage with the latter
disqualifies the former from being entitled to the custody of the child in
question.
04. Conversely, the defendant expressed in her cross-examination
that her marital tie was established with Ibrahim but it was repudiated later
on, and thus, currently she has not been residing with any of her husband. In
evidence, the defendant custodian mother is recurrently seen to gainsay the
existence of any marriage with any man right now. Instead, she reiterated his
living in her father’s house with the child in question. The maternal
grandfather of the child also deposed as DW-01 and is vividly found to be
concurrent with the position of the custodian mother defendant. Even, the
PW-03, who is the father of the plaintiff, also supported the defendant’s
custody in a way that the minor daughter child is now staying with her mother
defendant under the shelter of the child’s maternal grandfather. In addition,
the evidence adduced by the PW-02 carries the plaintiff nowhere so far as the
current marital status of the defendant and the residence of the child in
question. Accordingly, the evidence available on record suggests that the
custodian defendant is now out of any marital knot and has been residing along
with her minor child in her father’s house. Hence, the court holds that the
plaintiff-side has not substantiated the disqualification of the defendant on
the ground of remarriage with weighty and convincing evidential materials.
05. Moreover, the plaintiff underscores in his pleading that
since the custodian mother is not taking care of his daughter in an appropriate
manner, she is not entitled to child custody. The plaintiff also expressed his
apprehension that as long as the minor is in his mother’s custody, she would
not properly be raised and brought up to be a good man. As a result, for the
sake of the child’s proper care, education and good health, he claims that he
is entitled to the custody of the child in question. But it appears on the
record that although the plaintiff claims as such, in evidence, he neither put any collaborative
causes, nor his other supporting witnesses did the same while standing in the
witness-box. Moreover, the
custodian mother was made subject to cross-examination, but it sheds no light
in his favor on such points. However, PW-02 & 03 in their evidence,
narrated that they tried to take up the child in their custody on behalf of the
plaintiff from the custody of the defendant, but they put forward no sufficient
relevant justifications for why the court should hand over the child to the
plaintiff. In addition, the PW-02 clarified his evidential proposition by
saying that he does not know the child's whereabouts. That being so as such,
such words of comparative advantage equips the plaintiff with no armor.
06. Another point is also mentionable that the father’s right of
Hizanat is preferential only in the absence of ‘an able-mother’. The evidence
on record tells the court that the plaintiff father offers no such better
position than the mother defendant. In such conditions, it is to be kept in
mind that the parent's earning capacity does not determine custody, but the
capacity to provide a safe and secure environment does. Hence, it would be
verbose to comment that the principle on which custody is decided is the ‘best
interests of the child’. It may, for example, be a case that even a mother who
is a housewife can gain custody of the child and the father will be asked to
provide child support. Deciding facts include who can take better care of the child’s emotional,
educational, social and medical needs is to be favored. The court is thus of view that the materials on
the record does not adequately gives rapport to the existence of closer bonding
and emotional ties between the plaintiff and the child than that of the mother.
07. Furthermore, in pleading and evidence, the plaintiff
noticeably underscores that the defendant has relinquished her custodian rights
due to an agreement made between them at the time of their marriage
dissolution. In evidence, the plaintiff as DW-01 placed the copy of the
agreement marked as exhibit No. 01. As a result, there arises a contention
about whether the provision of the agreement made between them shall determine
the suit's fate so far as the custody of the child. For this, an issue as to the
status of such an agreement requires to be figured out now. As per condition
No. 04 of the agreement, the child was handed over to the plaintiff’s custody
at that time. Surprisingly, it also conditions that no party shall be allowed
to take legal actions regarding the child custody in agreement.
08. As aforesaid, it is admitted that the child in question is
now in her mother’s custody. So, the plaintiff has already lost the physical
custody of the child. In addition, in case of child custody, a bar to take
legal recourse by any party appears to be abusive and untenable under the law
of child custody, where the child’s best interest prevail in all circumstances.
Besides, the agreement seems executed in a sitting where their wedlock got
repudiated. The custodian defendant as DW-01, asserted in her cross-examination
that she is not able to recall the incident of such an agreement. As a matter
of fact, it could happen so far for any person in such an undergoing case.
Accordingly, in contextualizing the issues mentioned above and considering
applicable laws and purposes of the suit, it can be opined that the legal
position of the contract law ought to be taken into consideration in the
instant occasion: a contract (agreement) is voidable under at the option of the
party who undergoes as such.
09. Pertinently, it is well established that the quality of the
relationship between the children and each parent is of paramount
consideration; and thus, ‘the
thinking has shifted from custody and access being the ‘right of a parent’ to
being the ‘right of a child’. It
also transpires in evidence (vide PW 01-03, DW-01 & DW-02) that the plaintiff father could not have in the child’s
best interest demonstrated sufficient evidence to prove his comparative
advantage with regard to his capacity and disposition to give the child love,
affection, and guidance and to continue the education and rearing of the child. On that premise, it is not skeptic that the
whole fabric of the materials on record conspicuously favors the defendant
mother in the present context.
10. Again, it is concurrently contextual that the general
principle of Muslim law prioritizes fathers’ custody of older boys and mothers
of older girls, but it is not a strict rule and is primarily decided based on
the child’s interests (best interest consideration). Therefore, only the mother
holds the ultimate right to seek her child/children’s custody under the Right
of Hizanat as long as she is not convicted or found guilty of any misconduct;
that is to say, there is no
confirmed evidence of domestic violence, abuse, or neglect by mother defendant. The whole evidential paradigm of the suit at hand
does not demonstrate that the defendant mother is proven to neglect or
ill-treat the child, or found guilty of any misconduct committed to the child,
that could oust her custody rights.
In consideration of pleadings, facts, surrounding circumstances,
evidence of both oral and documentary on record, it appears before the Court
that the suit deserves to be dismissed on the contest. However, this is not a
suit relating to office or property; it is a suit that impacts the life and
interest of a child in question. Hence, despite the suit being dismissed, the
non-custodial father can get different types of access to the child based on
circumstances and convenience, i.e., weekly, fortnightly, daily or monthly
visitation rights. It can be a day or overnight access. It could also be free
access with no fixed schedule, but as per the parents’ and the child’s
convenience.