HEADING OF JUDGEMENT IN ORIGINAL SUIT/CASE
District: Rajshahi
In the Court of Family Judge, Mohonpur, Rajshahi
Present: Md. Abdul Malek, Judge, Family Court
31 March 2022
Family Suit No. 97/2020
Mst. Ashamoni Versus Mr. Md. Rayhan Ali
In the presence of.......
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 on a sitting between
the Plaintiff and the Defendant on 17/05/2019 in compliance with Islamic sharia;
and dower was fixed at Tk. 1, 20,000/ with instant pay of Taka 700. But later
on, the Defendant demanded dowry; and on refusal, he drove the Plaintiffs away
from his abode with trifle apparels; 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 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 04/09/2020. It is also
claimed that he is 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 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. The Defendant stated that the dower money for their marriage contract was fixed at Tk. 1, 20,000/ with instant pay of Taka 700. But due to familial discord, the plaintiff took shelter with her parents’ house, and demanded for unpaid dower money. After some unpleasant incidents, their marital ties got repudiated. Hence, the plaintiff is not entitled to get relief as prayed for.
Issues:
Considering the pleadings of the parties, the
issues are framed in a 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 witnesses as PW. 01; and submitted a document marked as exhibit No. 01. On the other side, the Defendant examined a witness as DW. 01.
Issue No. 01 and 02:
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. 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 was registered in a Nikahnama (exhibit-01) and both parties
admitted the facts of solemnization of the valid marriage and dower was fixed at Tk. 1, 20,000/ with
instant pay of Taka 700. The plaintiff claims that their marital relationship still
exists. But the defendant unequivocally
asserted that he did serve notice of talaq to the concerned U.P. chairman.
Even, the defendant placed evidence on the fact that the notice of talaq was
served upon the concerned U.P. chairman.
On this very
vital point, the defendant put forward the copy of the notice for talaq, postal
receipt, etc., and thus, claims that the talaq in question becomes effective as
such. So, it is proved with sufficient
evidence that notice of talaq was served upon the concerned UP chairman. Accordingly,
it becomes incumbent to consider the pertinent provisions of law that touch on the
ensuing facts. 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.
The plain reading of the above statutory provision gives us a lucid understanding that any pronouncement of talaq shall be effective after the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman. So, it is the legal position that there shall be a Talak in the eye of law when provisions contained in section 7(1) are sternly complied with. The whole materials on record also reveal that the talaq in question was also disclosed in an affidavit. So, it can also aptly be argued that “when divorce is disclosed in an affidavit and clearly established by the conduct of the husband, it vividly transpires to the court that their marital tie exists no more. Most importantly, it appears to the Court that it is admitted by the plaintiff while deposing as the PW-01 that the marital tie between the Plaintiff and the Defendant has already ended with dissolution. Accordingly, the unpaid dower of Tk. 1,19,300/ is decided as immediately payable. Hence, it is decided that the whole unpaid dower money of tk. 1, 19,300/ is unambiguously immediately payable. Therefore, it is decisive to the court that the plaintiff is held to be entitled to get her unpaid dower and iddat maintenance.
But the next question as it ensues, how much provisions of maintenance, or whether as much as it is prayed for? The plaintiff also 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 (vide PW-01). In evidence, they concurred with the same propositions. On the other hand, the defendant also claims in his pleading and evidence, that he is still a student of a public university. He has no capacity to pay for money as the plaintiff prayed for. In fact, 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 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, it appears that the plaintiff has proved her case with satisfactory and convincing materials of evidence. But it will be decreed in part. In consideration of pleadings, facts, surrounding circumstances, and both oral and documentary evidence on record, the court is of the view that the suit deserves to be decreed on the contest in part
The court fee paid is sufficient.
Hence, it is ordered
that the suit be decreed on contest
against the defendant without any order as to costs. Accordingly, the Plaintiff
is entitled to get Tk. 1,19,300/- as unpaid dower money; and Tk. 1700/- as iddat Maintenance; being total of Tk. 1,21,000/ 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.