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
Family
Suit No. 93/2020
Mst. Sharifa Khatun Versus Mr. Md. Akhtaruzzaman
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 and maintenance against the Defendant.
The Plaint in the nutshell:
A marriage was contracted between the Plaintiff and the Defendant on
22/10/2019 in compliance with Islamic sharia; and dower was fixed at Tk.
1,50,000/. 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 Plaintiff 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
20/07/2020. It is also claimed that the defendant 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 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, 50,000. But the plaintiff took shelter at
her parents’ house, and demanded for unpaid dower money. The marriage has not
been consummated. After some unpleasant incidents, their marital ties got
repudiated. The defendant has no farming land. Hence, the plaintiff is not
entitled to get anything from him except her iddat maintenance.
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 witnesses as PW. 01; and submitted a document marked as exhibit No. 01. On the other side, 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 concerning 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). In addition, both parties to the suit (the PW-01 and DW-01), admitted the facts of solemnization of the valid marriage and the dower was fixed at Tk. 1,50,000/. Most importantly, on further perusal of the record, it appears to the Court that the plaintiff admitted as the PW-01 that the marital tie between the Plaintiff and the Defendant has already ended with dissolution. Consequently, the whole unpaid dower money becomes 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. However, since the defendant claims that the marriage has not been consummated in between, questions then arise about how much unpaid dower money and provisions of maintenance are to be paid by the defendant.
In evidence, the defendant as DW-01 claims that the marriage has not been consummated between them as they did not ever spend time under the same roof. He further particularly explains in ways that no physical relationship has been established between them after the marriage was contracted. The defendant also made a cross-examination to the PW-01 (the plaintiff) and tried to establish such of his claim. The PW-01 adduced in her cross-examination testimony that after the marriage was contacted, she was brought to his house and stayed the night together under the same roof. She also exposes that the defendant has two houses, one in his village and the other in Noyahata, Rajshahi (a suburb of Rajshahi metropolitan city); and also claims that she also resided at the latter house with her husband after returning from his country house. She is also shown to be known to the particulars of both houses of the defendant. Surprisingly, if the whole evidential edifice available on record is carefully observed, it appears that the defendant did not deny such particulars of his houses in his evidence adduced as DW-01.
Moreover, it also transpires that the defendant-side exposes some testimonial inferences that support the position of the plaintiff. For example, the plaintiff stated as PW-01 that the defendant has a brother named Rafiqul and three (unnamed sisters), as well as had three mothers; of them, two mothers are still alive. Furthermore, she also narrated a particular fact that the defendant’s first spouse administered poison to herself on the day when she was brought to his village house. But, it occurs in evidence that the defendant neither produced any of them before the court for advancing the veracity of the plaintiff’s testimony nor did he provide a better explanation to her propositions. In addition, the DW-01 in his cross-examination stated that he repudiated his marriage through talaq after two months of their marriage contract. The record reveals that marriage was contracted on 22/10/2019 and the notice of talaq was served upon the plaintiff on 08/01/2020. That’s means, talaq becomes complete and effective even after three months after the service of notice. Hence, the court finds the defendant’s testimony to be both less veracious and less dependable.
It is the general rule of evidence that he who desires the court to believe the existence of the fact is liable to prove the existence of that fact. Even, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. In this respect, the defendant is found to be failed to discharge his onus so far, relating to the particular claim that marriage has not been consummated. The legal position is that the dower becomes confirmed by the consummation of the marriage [vide Para 289A, Pri. of. Mahomedan L. 19th ed. (LexisNexis) p. 246] accordingly, it is decided that the plaintiff is entitled to get full dower money in respect of the marriage in question. Hence, issue No. 03 is settled in the plaintiff's favor.
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. Issue No. 04 is also decided in the favour of the plaintiff.
In consideration of pleadings, facts, surrounding circumstances, shreds of evidence, oral and documentary, available on record, the court is of view that the suit deserves to be decreed on contest.
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. Accordingly, Plaintiff is entitled to get Tk. 1, 50,000 as unpaid dower money and Tk. 3000 as iddat Maintenance 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.