HEADING OF
JUDGEMENT IN ORIGINAL SUIT/CASE
District: Rajshahi
In the Court of
Family Judge, Mohonpur, Rajshahi
Present: Judge, Family Court
March 31, 2022
Family Suit No.
09/2021
Mst. Ayesha Bibi Versus Mr.
Md. Imran Husen Mondol
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 and registered between the Plaintiff and the Defendant
on 08/04/2016 in compliance with Islamic sharia; and dower was fixed at Tk.
85,101/. The plaintiff No. 02 was born in the womb of the plaintiff No. 01 in
the parental legitimacy of the defendant. 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 their
maintenance from the defendant on 10/07/2020. Upon denial of such a demand, the
plaintiffs have brought in the very suit. The plaintiffs’ claims the
defendant’s ability to satisfy them as prayed for.
The Pleading 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 the dower money for their marriage contract was fixed at
Tk. 85,101/ with instant payment of TK. 800/. The plaintiff No. 02 was born in
the womb of the plaintiff No. 01 in the parental legitimacy of the defendant. But
later on, due to familial discord, he repudiated their marital tie in between. The
defendant has no ability for satisfying the amount of maintenance of plaintiff
No. 02 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 No. 01 is entitled to get dower money and
maintenance and whether the plaintiff No. 02 is entitled to maintenance.
4. Whether the plaintiffs 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. 01-02. On the other side, the Defendant examined a witness as DW. 01; and submitted documents marked as exhibit No. Ka-Ga.
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 recognises any aggrieved person’s right to file a lawsuit in relation to the matter of dower and maintenance. So, since there appears 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 favour.
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). However, on perusal the pleadings, the PW-01 and DW-01, it appears that the both parties admitted the facts of solemnization of the valid marriage and dower was fixed at Tk. 85,101/ with instant payment of TK. 800/ at the very sitting.
Most importantly, on perusal of the case record (exhibit Ka-Kha), it appears to the Court that the defendant served notice of Talaq upon the concerned Chairman of the Union Parishod, and the same office acknowledged the receipt of such notice on 15/09/2020. No contrary material is led by the plaintiff No. 01, except the mere fact of the denial by the plaintiff No. 01 of receipt of the notice served upon her (vide PW-01). As per the provisions of section 7 (3) of the 1985 Family Court Ordinance, a Talaq shall be effective after expiry of ninety days from the day on which notice is delivered to the concerned Chairman/Mayor. Hence, it is decided that their marital tie between the Plaintiff and the Defendant has already ended with dissolution. Hence, it is decided that whole unpaid dower money of tk. 84,301/ is unambiguously immediately payable. Therefore, it is decisive to the court that the plaintiff is held to be entitled to get her whole unpaid dower and iddat maintenance.
Now, the next question ensues how much provisions of maintenance, or whether as much as it is prayed for. But before discussing it, it is high time to decide upon the child maintenance. Upon close perusal of the defendant’s pleading and the deposition given as DW-01, it lucidly admittedly appears that the plaintiff No. 02, a minor child, is now in the custody of his mother, plaintiff No. 01. According to the EPI card of the minor, he appears to be a child of about three years. The Plaintiff also added up to his evidence that their child, plaintiff No. 02, has been in her mother custody since 10/07/2020; and paid no provisions for him meanwhile. Nothing appears to be otherwise on record. Therefore, it is evidently decided that the minor child is out of the defendant custody since the very date.
In essence, it would be verbose to reiterate that the law governing the very suit vindicates rights of child to be maintained by father despite the fact that the child is in the custody of the mother or grandmother. 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. But such maintenance is to be assessed in cognizance of the father’s affordable conditions or the customs and practices. Accordingly, the plaintiff No. 02 is entitled to get maintenance till the lawful period.
Issue No. 04:
The
plaintiffs claimed that the defendant's financial conditions are well off. He
is capable of satisfying them as prayed for (vide pleading). On
evidence, the plaintiff side however concurred with the same propositions. On
the other hand, the defendant also claims in as DW-01 that he is a farmer, and
has no landed property in his credit. In evidence, he also added that he is yet
to remarry another woman. In fact, it appears that the record contains no
sufficient materials to decide upon the socio-economic conditions of the
parties to the suit.
However, the concept of ‘maintenance’ includes food, raiment and lodging but this definition of ‘maintenance’ is not exhaustive. This word includes other necessary expenses for mental and physical well-being of a minor, according to his status in society. Educational expenses were included therein. [vide Para 369, Mulla, Principles of Mahomedan Law, 18th Ed. (1977) reprint 1985, p. 382)]. Therefore, the Plaintiff No. 02 is entitled to ‘adequate’ maintenance from May 2017 to the lawful period.
That is why, in the light of the socio-economic conditions of the defendant and the life-style of the plaintiffs to the extent of what the available evidence goes, along with entailing circumstances and conditions reflected in the instant case, it appears to the court that the plaintiffs have proved their case with satisfactory and convincing materials of evidence, but in part. Accordingly, 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 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, Plaintiff No. 01 is entitled to get Tk. 84,301/- as unpaid dower money; and Tk. 1500/- as iddat Maintenance; in toto, Tk. 85, 801 by virtue of the decree. Defendant is ordered to pay the decreed amount within the next 30 (thirty) days from the date, failing which, Plaintiff may take steps in accordance with the law.
Accordingly, Plaintiff No. 02 is also entitled to get past maintenance of Taka 13,000/ [i.e., 1000x13] for a period of 13 months from the date of the institution of the suit 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. In addition, Plaintiff No.02 will be getting maintenance at the rate of Tk. 1800/- 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 No. 02 may through court revise the amount of the prospective maintenance once within a period of 36 months.