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
April
28, 2022
Family
Suit No. 88/20
Mst. Rafia Akhtar Versus Mr. Md. Abdur Rahim
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 Plaint in the nutshell:
A daughter named Mst. Rafia Akhtar Saima, plaintiff, was born at the defendant’s paternal legitimacy. In the aftermath, the wedlock of her parents got broken up in a local arrangement; and since then, the impugned child has been in her mother's custody. But the defendant pays no care to the child to date. The defendant is alleged not to provide maintenance to her. The minor plaintiff being now in her mother’s custody demanded to Defendant for maintenance on 05/01/20 but the latter refused to pay the same; hence the suit.
The Written Statement in Brief:
On the other hand, 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 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. Defendant stated that the minor daughter is his offspring. The defendant specifically asserts that his minor daughter is now in her mother’s custody. He also claims that the plaintiff has no standing to sue because a mutual settlement was effected between them on conditions that the defendant shall be paying maintenance of Tk 300 per month for his minor daughter. He asserts that along with other amenities, he has been providing such agreed maintenance through postal service (money order) to the plaintiffs from time to time. Hence, the suit shall 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 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 a document marked as exhibit 01; on the other side, the defendant examined himself as DW 01 in support of his claim and submitted documents marked exhibit Ka (series). Another witness is also examined as CW-01. Arguments heard from both sides after post-trial reconciliation attempts became abortive.
Issue No. 01-03:
These issues are taken together for brevity, correlation, and convenience.
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 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 the 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.
03. It is unequivocally admitted that during the continuation of valid wedlock, plaintiff was born in the womb of her mother at the defendant’s paternal legitimacy. As aforesaid, it is also admitted fact that the plaintiff is now in the custody of her mother. It further transpires in evidence (vide PW-01, DW-01) that the minor daughter has been out of the defendant’s custody since their marriage was dissolved. Accordingly, it is decisive that the impugned child has been in her mother’s custody since the demise of their wedlock (vide PW 01-02, DW-01). In the light of the aforesaid narratives, it is thus decided that since this is a suit for child maintenance from a father and the child is out of that father’s custody, as well as this suit is not otherwise barred in a lawful manner, the court holds that the issues Nos. 01-02 are settled on the plaintiff’s behalf.
04. Now the deciding issue is whether the plaintiffs could get the relief as much as they prayed for. Notably, the defendant specifically claims that an agreement was reached at the time of the dissolution of their marriage between them on conditions that the defendant shall be paying maintenance of tk. 300 per month for his minor daughter; and the said money could be paid through postal. On careful perusal of exhibit No. Ka, the court finds the congruity of his assertion in clean terms. The exhibit No. Kha (series) also supports the defendant’s payment of money to the child in question for a certain period (also vide DWs 01). So, considering the evidence adduced as such, it appears that the existence of a maintenance agreement and some payments in accordance with such an instrument appears prima facie to be proved with a bulk of credible evidence.
o5. However, in pleading and evidence, the plaintiff-side noticeably underscores on the fact that they never get any maintenance from the defendant. In addition, the fact of the plaintiff’s receiving the defendants’ 12 times payments of Tk 300/ each is denied in her cross-examination. On the contrary, the defendant asserts in his pleading that along with other amenities, he has been providing such agreed maintenance through postal service (money order) to the plaintiffs. In evidence, the payment of maintenance of tk. 300 per month for his minor daughter is asserted by the DW-01. No doubt, so far as the postal department’s money order service is concerned, it could be argued that this is not a digital means of financial transaction. Accordingly, because such an accomplished transaction is meant to be done with manual methods, both sending copy, as well as receipt copy, requires to be considered together in the same sense. While the plaintiff side disregards any incidence of payments made to them, the defendant ought to turn up before the court with a copy of both types of transactional proofs. Interestingly, the defendant in his cross-examination admitted that the mother of the child in question does not receive the money he sent through postal services (DW-01). As a result, since the defendant has not provided the court with such proof, it becomes decisive that no complete payment of money in terms of maintenance of the minor daughter is proved with the best evidence. So there arises no contention about whether sending and receiving the payment of maintenance became complete.
06. Another contentious question as to the status of the agreement for child maintenance is also to be figured out now. It is time to examine and contextualize the matters mentioned above in the light of applicable laws and the purpose of the suit. As per the materials available on record, it appears that the minor daughter was only 18 months old when the agreement was brought into being. It was a condition that the defendant has to pay maintenance of tk. 300 per month for his minor daughter. Moreover, the said amount of maintenance was fixed on 18.10.2020, that is to say, it was fixed over 18 months from today. Can anyone deny that most children have right to get benefits from having both parents and guardians involved in their lives in a positive way, whether they live with them or not. Parents can help to do this by working together with their children’s long-term interests at heart. Keeping that in mind, even a layman’s mind would think that only Tk. 300/ per month for a minor daughter aged about 3 years could do a little benefit.
07. However, the financial condition of the responsible father must also be considered with utmost care. As such, it can be held that with a view to advancing the overall welfare of the minor in dispute, the custodian person should be allowed to invoke the court’s jurisdiction to reconsider or revise the provisions of maintenance even it is settled in a civil contract. It is pertinently mentionable here that even statutory provisions relating to child custody get relaxed where the best interest of child dictates otherwise. As a result, the court feels constrained to hold that this suit is a fit case to go beyond the agreement in question for the child’s best interests, although the law of maintenance endorses a valid agreement that regulates the provisions relating to the term.
08. In order to fix the provisions of maintenance afresh, the pleadings of both sides are considered again. It is deducible that the minor was born on 15/12/2019 and thus, is now a daughter of about three years old. He also claims in his evidence (DW 01) that he is not able to pay maintenance as much as it is sought for. He admitted in evidence that he is a farmer and works for others' farming, in addition to the fact that he also has to maintain his parents. However, it occurs on the materials available on record that no sufficient account of the evidence is led as to their overall social conditions.
09. With regard to the present context, the court is compelled to recollect 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. The 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. Furthermore, 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.
10. 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.
11. 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 the plaintiff is a necessitous daughter of the defendant, it is, therefore, held that the defendant is bound to provide maintenance to his minor daughter till the lawful period. Issue No. 03 is therefore decided in the plaintiff’s favor in part.
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. 300/ per month as past maintenance, and also be entitled to monthly Maintenance for a lawful period at the rate of Tk. 1200/- for each month. In consideration of pleadings, facts, surrounding circumstances, and 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 is entitled to get maintenance of Taka 5700 [i.e., 300x 19] for a period of 19 months from the date of institution of the suit by virtue of the decree. The defendant is ordered to pay the decreed amount of money within the next 30 (thirty) days from the date, failing which, the plaintiff may take steps in accordance with the law.
Moreover, the plaintiff 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 ordered to pay monthly maintenance to
the minor child within the first week of every month.
However, it is further ordered that the parties may, through the court, revise the amount of the future maintenance once within 36 months.
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