Elias (Md (Petitioner)
Vs.
Jesmin Sultana (Respondent)
Supreme Court
Appellate Division
(Civil)
JUSTICE
ATM Afzal CJ
Mustafa Kamal J
Latifur Rahman J
Bimalendu Bikash Roy Choudhury J
AM Mahmudur Rahman J
Judgment : February 8, 1999.
The Code of Civil Procedure, 1908 (V of 1908), Order XIV, rule 1
Learned judges of the High Court Division indulged in the discussion on polygamy in Islam totally unnecessary which was neither an issue in the suit nor required to be decided in the context of pleadings of the parties. In the circumstances of the case, we feel compelled to observe that the discussion on polygamy in Islam and recommendation thereon as recorded in the impugned judgment should be taken to be deleted lest it may create confusion in the mind of the subordinate Courts and the people at large……………(5)
Lawyers Involved:
MG Bhuiyan, Advocate-on-Record — For the Petitioner.
Not represented — The Respondent.
Civil Petition for Leave to Appeal No. 1165 of 1998.
(From the judgment and order dated November 26, 1996 passed by the High Court Division, Dhaka in Civil Revision No. 4591 of 1995).
Judgment
ATM Afzal CJ.- This petition by the defendant-husband which arises out of a Family Suit, No.35 of 1993, of the Court of Assistant Judge and Family Court, Mirsarai, Chittagong for prompt dower and maintenance allowance filed by the respondent-wife is barred by 649 days and we are going to dismiss this petition as time-barred but not before we express ourselves against part of the impugned judgment dealing with polygamy in Islam and recommending amendment in the Muslim Family Laws Ordinance, 1961 (Ordinance No.VIII of 1961) prohibiting polygamy which was totally irrelevant for a decision in the matter.
2. The trial Court decreed Taka 60,000.00 as prompt dower, Taka 4,500.00 as maintenance allowance and further Taka 500.00 per month for the same purpose. On appeal, however, the amount of prompt dower was reduced to Taka 40,000.00 whereupon the respondent took a revision, Civil Revision No.4591 of 1995, against the appellate judgment and decree. A Division Bench, by the impugned judgment and order dated 26 November 1996 disapproved the reduction of the amount of prompt dower and restored the decree as passed by the trial Court.
3. In course of the hearing of the matter the High Court Division noticed that the defendant- husband had filed an application to the Chairman of the Local Union Council seeking permission under section 6 of the aforesaid Ordinance to take a second wife alleging that the present wife, namely, the plaintiff was sick and incapable of performing conjugal relationship. The learned Judges observed that section 6 of the Ordinance prohibits contracting of a second marriage during the subsistence of an existing marriage without the previous permission of the Arbitration Council but it does not declare the second marriage as illegal or invalid but only prescribes for punishment of violation of the said section. Then the learned Judges observed: “We, therefore, find it necessary to examine the issue as to whether Islam truly approves polygamy or more properly speaking, polygyny”. The learned Judges themselves noticed that there had been great difference of opinion regarding this issue since long and then embarked upon a legal monologue referring to the Holy Quran and the hadith and finally came out with a recommendation that section 6 of the aforesaid Ordinance be deleted and substituted by a section prohibiting polygamy. A copy of the judgment was directed to be sent to the Ministry of Law.
4. It has been brought to our notice that the impugned judgment has also been published in a law journal (1997 BLD 04).
5. From the facts of the case as noticed above briefly, it is evident that it was unnecessary for the learned Judges to indulge in the discussion on polygamy in Islam, which neither was an issue in the suit nor required to be decided in the context of the pleadings of the parties. The exercise undertaken by the learned Judges was not only gratuitous but wholly illegal being not within their jurisdiction under the Code of Civil Procedure. In a recent case relating to maintenance of a divorced Muslim wife we have noticed that the learned author Judge of the impugned judgment had indulged in the same kind of gratuitous exercise not required within the framework of that suit and abruptly laid down a law which was contrary to the centuries old Muslim Personal Law. In the present case also the learned Judge quite unnecessarily expressed an opinion on a subject of Muslim Law without anybody asking for it and without hearing anybody whatsoever which the learned Judges themselves observed was a contentious subject since long. We must record our total disapproval to the learned Judge’s practice of incorporating his personal opinion on a legal subject which is not at all required to be decided for the disposal of the matter before him, the parties not being in issue in the suit over such subject. We are sorry to say that this is a kind of aberration which seems to be pathological with the learned Judge which is not at all desirable in a system of law and norms under which our Courts have been functioning in this country since long. In the circumstances of the case, we feel compelled to observe that the discussion on polygamy in Islam and recommendation thereon as recorded in the impugned judgment should be taken to be deleted lest it may create confusion in the mind of the Subordinate Courts and the people at large.
With these observations, the petition is dismissed.
Ed.
Source : 51 DLR (AD) (1999) 99.