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: - Mr. Md. Abdul Malek, Judge, Family Court
Jan. 26, 2022
Family Suit No. 57/2017
Mst. Shanjida Khatin Versus Mr. Md. Rasel Rana Sordar
In the presence of
Mr........…….........................…...…Learned Advocate for the Plaintiffs
Mr.....................................………...Learned Advocate for the 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 Kabinnama was
registered between the Plaintiff and the Defendant on 29/06/2017 in compliance
with Islamic sharia; and dower was fixed at Tk. 2, 00,000/. But later on, the
Defendant demanded dowry; and on refusal, he drove the Plaintiff away from his
abode with trifle apparels on 25/07/2017; and they then took shelter in her
father’s house. From that time, the Plaintiff is 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 from the defendant on 17/09/2017
through legal notice. The plaintiff also claimed that the defendant is financially
solvent and has some landed property and thus, capable of satisfying them as
prayed for.
Written Statement 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 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 a marriage was contracted and Nikahnama was registered between the
Plaintiff and the Defendant on 29/06/2017 in compliance with Islamic sharia;
and dower was fixed at Tk. 2, 00,000 with instant payment of Tk. 1000 in terms
of ornament. Out of familial discord and unpleasant incidents, their marital
tie was dissolved through Khula talaq and Tk. 2, 00,000 was paid by the
defendant to the plaintiff as dower money and iddat maintenance. The notice of
talaq was also served to the concerned U.P. chairman. Hence, the plaintiff is
not entitled to relief 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 the plaintiff is entitled to get
dower money and maintenance as prayed for.
4. Whether the plaintiff is entitled to get remedy as prayed for.
Discussions and
Decisions
In proof of the claims, the Plaintiff side examined the witness as PW. 01; and submitted a document marked as exhibit No. 01. On the other side, the Defendant examined two witnesses as DW. 01-02 and submitted documentary evidence marked as Ka-Chha. After the end of the trial of the suit, a post-trial reconciliation attempt was made, and failing which, arguments are heard from both sides.
Issue No. 01 and 02:
The plaintiff 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. Upon perusal of the materials available on record, it appears that the
marriage in question was contracted and registered in a Nikahnama (vide exhibit-01).
Besides, the evidence adduced by the PW-01 and DW-01, it appears that both parties
admitted the facts of solemnization of a valid marriage with fixing dower money at Tk. 2,00,000/. However,
the certified copy of Nikahnama speaks out that the nature of the dower is
found to be uncertain. Therefore, as per section 10 of the 1961 Muslim Family
Laws Ordinance, the entire amount of dower shall be payable on demand, no
matter marital tie subsists or not. Although the defendant in his pleading
claims that the dower money was fixed at Tk. 2, 00,000 with instant payment of
Tk. 1000 in terms of ornament, he neither substantiates in his evidence as
DW-01 nor produced any supporting documents in this regard. So, the averment of the certified copy of
Nikahnama (vide exhibit-01) should
get preponderance in this respect. Accordingly, the whole dower money of Tk. 2,
00,000 is hereby decided as prompt dower. Hence, it is decided that a valid
marriage was contracted with fixing prompt dower money of Tk. 2,00,000 between
the plaintiff and defendant.
04. Since marriage is admitted, the plaintiff is entitled to maintenance. A question arises whether the plaintiff is entitled to continued maintenance or only iddat maintenance. On perusal of the materials on record, it appears that the defendant claims the dissolution of their marriage through Khula talaq, but the plaintiff does not admit it neither in pleading nor in her evidence. Here thus becomes an issue whether their marital tie now subsists or not.
05. On careful perusal of materials on record, and exhibited documents, it apparently appears that the defendant placed before the court a true copy of the notice of Talak, registry postal receipts and acknowledgments, affidavit upon the pronouncement of Khula Talak, and the certified copy of Talak-registration[ext.: Ka-Chha]. Although the plaintiff as PW-01 denied the fact of receiving any notice of talaq from the defendant, she could not present any evidentiary materials contrary to the plaintiff’s documentary evidence. On careful perusal of documents enumerated just hereinbefore, it is the view of the court that there exists proof of the fact relating to the fact that notices of Talak were issued both to the plaintiff and the concerned U.P. chairman through registry postal letters. Specifically, it is substantiated with pre-eminent evidential materials that the required notice of Talak was ‘delivered’ to the concerned chairman, and ninety days expired from the day on which notice under sub-section (1) is delivered to the Chairman without any reconciliation whatsoever.
06. Now consider the statutory provision in this respect. Section 7 of the 1961Muslim Family Laws Ordinance stipulates that “Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife. It also envisages that “Save, as provided in sub-section (5), a talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.
07. The
plain reading of the above statutory provision gives us a lucid understanding
that any pronouncement of talaq shall not be effective until the expiration of ninety days from the day on which notice under
sub-section (1) is delivered to the Chairman. The words “in any form
whatsoever” appearing in section 7(1) of
the Ordinance 1961 is very much
significant; as it spells out that “in any form" means and includes khula
talaq too; no matter whether talaq is registered or not), or no matter whether
any modes of Talaq stated in Mahomedan Law. Because section 7 requires only a
notice of a talaq to be given to the Chairman in order to give effect to
divorce. In fact, Khula or Mubara'at is another form of talaq or dissolution of marriage by agreement Khula or Mubarat is stated in section 319 of Mulla's
Principles of Mahomedan Law. In legal parlance, it is in this regard
well-settled that a divorce is legally effective even in the absence of proof
of the constitution of the Arbitration Council. Moreover, a divorce disclosed
in an ‘affidavit’ gains good ground in proof of dissolution of marriages.
08. Accordingly, it apparently appears that as per the
relevant provisions of section 7 of the 1961 Muslim Family Laws Ordinance, the
defendant is found to be successful in proving a legally-effected-talak with
credible shreds of evidence. So, the defendant-led-reliable-evidences relating
to the proof of Talak are evidentiary value-laden, it is crystalized to the court that
their wedlock subsists no more. In the light of the discussion made
hereinbefore, the court is of view that Talak is proved to be effective, the
plaintiff shall get her iddat
maintenance. Therefore, it is decisive to the
court that the plaintiff is held to be entitled to get her “unpaid” dower and “iddat” maintenance.
09. The next question as it ensues, how much
provisions of iddat maintenance, or
whether at a rate as it is prayed for? The plaintiff claimed that the
defendant's familial as well as financial conditions are well off. He has some
landed property; and thus capable of satisfying them as prayed for. In
evidence, they concurred with the same propositions (vide PW-01). On the other
hand, the defendant claims that he is van-driver, and has no landed property.
He also stated in cross-examination that he earns tk. 100/500 per day. In fact,
it appears that the record contains no sufficient materials to decide upon the
socio-economic conditions of the parties to the suit.
10. On further perusal of the materials on
record, there also arises another incidental question that poses as one of the
most crucial questions to decide in this suit. That is to say, the question is
whether dower money is still unpaid or not. As aforesaid, although the
defendant in his pleading claims that the dower money was fixed at Tk. 2,
00,000 with instant payment of Tk. 1000 in terms of ornament, he neither substantiates
in his evidence as DW-01, nor produced any supporting documents in this
regard. So, as per the averment of the
certified copy of Nikahnama (vide
exhibit-01), the whole amount of dower money (Tk. 2, 00,000) is unpaid, if
subsequently proved to be not paid at all.
11. In evidence, it is conspicuous that the
plaintiff is examined as PW-01 and the defendant made cross-examination to her as
well but put no question to her as to how she took or he paid the dower money,
or how the transaction of payment of dower money was made in between; except
the fact of putting her signature on the agreement of Khula talaq. Here, the
plaintiff denied the claims of the defendant as to his payment of dower money
to her. The defendant as DW-01 deposed that he has already paid the dower money
to the plaintiff at the (Rajshahi) court premise through the affidavit in the
presence of one Mozammel (DW-02) and one Nazrul (not examined before the court). The agreement of Khula talaq is
disclosed in the affidavit, which contains an averment that dower money is paid to
the plaintiff. It appears that although the time of payment of dower money is
significant, the DWs 01-02 could not tell the court when that agreement was
executed at the court premise.
12. Moreover, neither the notary public officer nor the identifying advocate was examined by the defendant's side before the
court. Even no expert evidence as to the parties’ signature is available on
record on the defendant’s side. Besides, the defendant’s assertion appears to
be unconvincing because how he managed those amounts of money (2 lakhs) is not
proved by examining the defendant’s cousin one Dulal, from whom he borrowed
money, as he claims (vide DW 01, cross-examination). He further failed to
produce the purchase or sale receipt of his auto (vehicle) as a part of a series
of transaction relevant to the fact in issue. Surprisingly, no one was
present on behalf of the plaintiff when the alleged payment of dower money to
the plaintiff was made.
13. The defendant’s case apparently also becomes
unconvincing if the fact of their returning from the court premise to their
home is carefully considered. The DW-01 asserted that his mother went with
the plaintiff while she was returning to her home from the court premises. But the DW-02 claims that the defendant,
his mother, and he together returned to their home. Moreover, the
defendant’s affidavit is a personal oath or affirmation which is based on his
own knowledge. The rules of evidence do not apply to affidavits. The bottom
line is that what it transpires, such incongruent and contradictory evidence
carries the defendant nowhere. Therefore, considering the discussion made
hereinbefore, it appears to the court that the defendant has not become
successful in proving his claim that he has already paid the dower money to the
plaintiff. Hence, it is decided that the whole amount of dower money (Tk. 2,
00,000) is still unpaid, and thus, the plaintiff is found to be entitled to
recover it from the defendant. This issue is settled in the plaintiff’s favor.
Issue No. 04:
In the light of the socio-economic conditions of the Plaintiff and defendant to the extent of what the available evidence goes, as well as the entailing circumstances and conditions reflected in the instant case, it appears that the plaintiff has proved her case with satisfactory and convincing materials of evidence. Since all issues are settled in the plaintiff’s favor, the suit will be decreed, but in part. 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 be decreed in part on contest
against the defendant without any order as to costs. The plaintiff is hereby
entitled to get Tk. 2,00,000/- as unpaid dower money; and Tk. 3,000 (3x1000) as
iddat Maintenance; in toto, Tk. 2,03,000 [i.e. (2,00,000+3,000] 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, the Plaintiff may take steps in accordance with the law.