Dr. Md. Rashidul Islam Vs. Morsheda Parveen

Dr. Md. Rashidul Islam. (Appellant)

Vs.

Morsheda Parveen (Respondent)

Supreme Court

Appellate Division

(Civil)

Present:

Md. Ruhul Amin J

M. M. Ruhul Amin J

Md. Tafazzul Islam J

Judgment

January 17, 2005.

Case Referred to:

Md. Abu Baker Siddique Vs. M. A. Bakar and others 6 BLD (AD) 245.

Lawyers Involved:

Md. Nawab Ali, Advocate-on-Record – For the Appellant.

Shahadat Hossain, Senior Advocate instructed by Md. Aftab Hossain, Advocate-on-Record – For the Respondent.

Civil Appeal No. 362 of 2002.

(From the Judgment and Decree dated 14.11.2001 passed by the High Court Division in Civil Revision No. 2519 of 2000).

Judgment

M. M. Ruhul Amin J.- This appeal by leave is directed against the judgment and order dated 14.11.2001 passed by a Single Bench of the High Court Division in Civil Revision No. 2519 of 2000 making the Rule absolute.

2. Short facts are that the plaintiff filed Family Court Suit No. 100 of 1998 under sec­tion 25 of Guardian and Wards Act, 1890 against the defendant for custody of his two minor sons. The plaintiff married the defendant on 14.12.1988 and in the wedlock one son was born on 30.07.1991 and another son was born 31.07.1996. The plaintiff divorced the defen­dant on 18.12.1997 and she left the plaintiffs house and went to the house of her father in the District of Rangpur taking with her two minor sons and has been living there. The plaintiff appellant is a registered Doctor and has been serving in the Government Mohammad Ali Hospital at bogra. After the divorce he has been sending money and clothes for his two minor sons but the defendant refused to accept those. The further contention of the plaintiff is that the defendant and her father has no capacity to edu­cate and to maintain the two minor sons proper­ly. Therefore, on 08.01.1998 the plaintiff sent his mother and cousin to bring his sons from the defendant and her father but they refused. In the circumstances, the plaintiff was constrained to bring the suit.

3. The defendant contested the suit by filing a written statement and contended, inter alia, that after divorce the plaintiff had driven her away from his house along with two minor sons and thereafter the defendant has been living at Mohammadpur in Dhaka where she has been working as a school teacher and her elder son is admitted in class-1 in the school where she has been serving and she has been taking good care of her sons and the plaintiff did not take care of his sons and paid no money for their mainte­nance. The defendant filed a suit being No. 228 of 1998 in the Family Court and the Court of Assistant Judge, 1st Court, Dhaka to keep her two sons in her custody but the suit was dis­missed. The defendant’s further contention is that she has means to maintain her two sons and hence the present suit is liable to be dismissed.

4. The trial court in consideration of the materials on record decreed the suit and the court of appeal affirmed the judgment and decree passed by the trial Court.

5. Being aggrieved the defendant preferred the above mentioned civil revisional application before the High Court Division and a Single Bench of that Division upon hearing the parties and considering the materials on record made the Rule absolute.

6. Leave was granted to consider the sub­mission that the learned Single Bench of the High Court Division in passing the impugned judgment did not consider the over all supervi­sory control of the father, the natural legal guardian and hence did not make any provision for the father to see the minors at suitable inter­vals and hence the impugned judgment needs to be interfered with and modified for the welfare of the minors and the submission that the learned single Judge failed to appreciate the fact that the welfare of the minors will be well guar­anteed if they are given better education and allowed them to put in a good well managed residential model school in Dhaka at the cost of the father and also the submission that in view of the fact that the elder son is above 10 years, the father is entitled to get custody of that son to put him in a good school for his better educa­tion and welfare and in the impugned judgment the welfare of the minors which is of paramount importance has not been discussed and consid­ered.

7. We have heard Mr. Md. Nawab Ali, the learned Advocate-on-record for the appellant and Kazi Shahadat Hossain, the learned Counsel for the respondent and perused the judgment of the High court Division and other connected papers.

8. It is not disputed that the plaintiff appel­lant married the defendant respondent on 14.12.1988 and out of the wedlock one son was born on 30.07.1991 and another son was born on 31.07.1996 and plaintiff divorced the defen­dant on 18.10.1997 and the respondent left the house of her husband and went to the house of her father in the District of Rangpur along with her two minor sons and at present she has been residing at Mohammadpur in Dhaka.

9. It is on record that the plaintiff is a regis­tered Doctor and has been serving in the Government Department and the defendant respondent is at present a teacher of a Nursery School at Mohammadpur in Dhaka. The plain­tiff appellant’s contention is that the defendant respondent has no means to maintain the minor sons properly and to give them proper educa­tion with her scanty income and to look after the welfare of the minor’s. They should be brought in his custody and put in a good school for better schooling. The further contention is that he sent money and clothes to the defendant respondent for the minors but the defendant refused.

10. The High Court Division relying on a decision of this court in the case of Md. Abu Baker Siddique Vs. M. A. Bakar and others reported in 6 BLD (AD) 245 has observed that according to Hanafi School, father is enti­tled to the Hizanat or custody of the son over 7 years of age. This rule is recognition of the prima facie claim of the father to the custody of the son who has reached 7 years of age, but this rule which is found neither in the Quran nor Sunnah would not seem to have any claim to immutability so that it cannot be departed from, even if circumstances justified such departure. The High Court Division further held that the welfare of the minors would be better protected in the custody of the mother as she did not take a second husband and she took service in a School where first son was admitted for proper education. Accordingly, the High Court Division made the Rule absolute with the obser­vation that if the father is interested to support his sons for better education and maintenance he may send required amount of money to the present guardian i.e. the mother of the sons and she is bound to receive the said money for the benefit of the sons and for satisfaction of her sons’ father. Further if the sons after attaining the age of 16 years desire to live with the father they may be allowed to go with the father forth­with.

11. At the time of hearing, the learned Advocate-on-record for the appellant and the learned Counsel for the respondent submitted that recently the mother has been receiving the amount of money sent by the plaintiff appellant for the minor sons and the father is allowed to meet the minor sons twice a month. The learned Advocate for the respondent submits that at present the plaintiff appellant has been sending five thousand take per month which is a meager amount for the two minor sons. The learned Advocate-on-record for the appellant submitted that the plaintiff is agreeable to send Tk. 7500/- per month for the two minor sons.

12. Accordingly the plaintiff respondent is directed to send Tk. 7500/- per month to the defendant respondent as maintenance and edu­cational expenses of the two minor sons and the defendant respondent shall be bound to receive the said amount of money for the benefit of the minor sons and she will allow the plaintiff respondent to meet the minor sons twice every month.

13. The direction of the High Court Division that the minor sons on attaining the age of 16 years would be at liberty to live with their father and they would be allowed to go to their father forthwith is maintained.

The appeal is accordingly disposed of with­out any order as to costs.

Ed.

Source: II ADC (2005) 357

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