HEADING
OF JUDGEMENT IN ORIGINAL SUIT/CASE
District: Rajshahi
In
the Court of Family Judge, Mohonpur, Rajshahi
Present: Md. Abdul Malek, Judge, Family Court
31.03.2022
Family
Suit No. 31/2021
Mst. Sundori Begum Versus Mr. Md. Abdul Mojid
In the presence of.....
And having stood for consideration to this day, the Court delivered the following judgment: This family suit is for recovering maintenance against the defendant.
The Pleadings of the parties in the nutshell:
Md. Shanto Islam was born at the defendant’s paternal legitimacy. In the aftermath, After the wedlock of his parents got broken up, the impugned child has been in her mother custody; but the defendant pays no care of to the child till to date. The Defendant is alleged not to provide maintenance to his child, and even not to take their whereabouts. The minor being now in her mother’s custody demanded to the Defendant for maintenance on 29/08/21 but he refused to pay the same; and hence the suit.
On the other hand, the Defendant 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 are fabricated and fraudulent, and the very suit is legally untenable, unjustifiable; and dismissible for the cloudy cause of actions. The Defendant stated that due to familial discords and conflicts, their marital tie sees the end. The defendant specifically asserts that the minor has been out of his custody is true; but the children is now over 7 years. He also claims that plaintiff No. 02 has no standing to sue the minor daughter and thus, he retains right to take the child into his custody. He claims that he is not capable of providing provisions for his child as per prayer. He also instituted a suit for custody of the child in questions. So, the plaintiff should not get any relief.
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 and whether the suit is barred by limitation.
2. Whether the plaintiff no. 01 is entitled
to Maintenance as prayed for.
3. Whether the plaintiff is entitled to get remedy as prayed for.
Discussions and the Decision
In proof of the claims, the Plaintiff side examined a witness as PW. 01 on behalf of the minor child; and produced documents; on the other side, the defendant examined himself as DW-01 in support of his claim.
Issue No. 01-03:
These issues are taken together for brevity, correlation, and
convenience. 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 decree 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 maintenance. Again, as it is admitted that
the minor child is now in the custody of her maternal grandmother. So, the
needful custodian of a child has full right to claim maintenance from the
capable biological father. 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.
02. It is unequivocally admitted that during the continuation
of valid wedlock, plaintiff No. 01 was born in the womb of her mother at the
defendant’s paternal legitimacy. As aforesaid, it is also admitted fact
that plaintiff No. 01 is now in the custody of her maternal grandmother. It
transpires in evidence (vide PW-01,
DW-01) that his minor has been out of his custody since their marriage was
dissolved. The defendant also specifically admits that he has paid no
money to the child in question after this suit was filed against him (vide DW-01). Accordingly, it is
decisive that the impugned child has been in her mother’s since the demise of
their wedlock.
03. As per the birth certificate of the child in question, she was
born on 30.09.2014. Considering the evidence adduced as such, it also appears
that the child was then given nothing in terms of maintenance by the defendant
father from the time when the suit was brought in being. There is no evidence
from the defendant side that the defendant paid some money in terms of child maintenance.
In the light of the aforesaid narratives, it is decided that since this is a
suit for maintenance for a minor child from her father, and the child is out of
the father’s custody, and this suit is not otherwise barred in a lawful manner,
the issue Nos. 01-02 are settled on the plaintiff’s behalf.
04. Now the left-out issue is that whether the plaintiffs could get
the relief as much as they prayed for. The defendant only claims in his
evidence that he is a farmer and works for others. It is worth mentioning that
nothing more is demonstrated on the material available on the record regarding
the present status and educational condition of the child. Even no sufficient
account of the evidence is led as to the financial conditions or family member
or dependents of the defendant.
05. With regard to the present context, it is germane to pinpoint that
‘right to maintenance’ forms a part of the personal law; and Muslim Personal
Law naturally requires a father to maintain his children and take them every
care. There is also a scholarly consensus on a father's obligation to bear his
children's expenses due to the words of Allah the Almighty [Al-Baqarah, 233],
even when the child is in its mother’s custody. Accordingly, daughters can ask
for maintenance until they get married. So, the maintenance of children is, as
a general rule, the responsibility of the father. Maintenance of children is,
therefore, incumbent upon the father. The decided facts of the suit thus fall
within the four walls of such an edifice of law.
06. However, the applicable law also resonates that a father must be
either financially capable of supporting his child or ability to earn in excess
of his own expenses. A father's obligation to support his child is not waived
except if he is incapable of earning a livelihood such that he is financially
dependent on any of his ancestors or descendants. In such a case, the
obligation to support his child is not waived. Because a child is attributed to
its father and is a part of him, much weight is attached to children’s
maintenance under Muslim law. Even, children have got priority over parents as
far as maintenance is concerned.
8. In essence, as aforesaid, the law governing the very suit
vindicates the rights of the child to be maintained by the father despite the
fact that the child is in the custody of the mother or grandmother. The concept
of ‘maintenance’ includes food, raiment, and lodging but this definition of
‘maintenance’ is not exhaustive. This word includes other necessary expenses
for the mental and physical well-being of a minor, according to his status in
society. Educational expenses were included therein. [Para 369, Mulla,
Principles of Mahomedan Law, 18th Ed. (1977) reprint 1985, p. 382)].
Therefore, Plaintiff is proved to be entitled to ‘adequate’ maintenance.
09. It is even permissible 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 and the like [vide 16 BLD (AD
(1996)]. But such maintenance is to be assessed in cognizance of the father’s
affordable conditions or the customs and practices. Likewise, it is decided
that plaintiff No. 01 is proved to be entitled to past maintenance from the
date of institution of the instant suit. Additionally, they will be entitled to
monthly Maintenance for the lawful period. Since Plaintiff is a necessitous
daughter of the defendant, it is, therefore, held that Defendant is bound to
provide maintenance to his minor daughter till the lawful period. These issues
are therefore decided in the plaintiff’s favor.
Additionally, as a matter of convenience, a good conscience, and reality along with the entailing circumstances, and the socio-economic conditions of the Plaintiffs and the Defendant, it is also decided that she will get tk. 1000/ per month as past maintenance, and also be entitled to monthly Maintenance for a lawful period at the rate of Tk. 1300/- for each month. In consideration of pleadings, facts, surrounding circumstances, evidence both oral and documentary on record, it appears before the Court that the suit deserves to be decreed on the contest.
The court fee paid is
sufficient.
Hence, it is ordered that the suit is decreed on contest against the defendant without any order as to costs. Accordingly, Plaintiff No. 01 is entitled to get maintenance of Taka 7,000/ [i.e., 1000x07] for a period of 07 months from the date of institution of the suit by virtue of the decree. Defendant is ordered to pay the decreed amount within the next 30 (thirty) days from the date of the order of this decree, failing which, the plaintiff may take steps in accordance with the law.
Moreover, Plaintiff No. 01 will be getting maintenance at the rate of Tk. 1300/- 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 directed to pay the monthly maintenance to the minor child within the first week of every month. It is also ordered that the plaintiff may through court revise the amount of the prospective maintenance once within a period of 36 months.
Composed and corrected by