Islamic Law Research Centre and Legal Aid Bangladesh Vs. Eva Sunanda Chowdhury & ors

Islamic Law Research Centre and Legal Aid Bangladesh (Petitioner)

Vs.

Eva Sunanda Chowdhury & ors (Respondents)

 

Supreme Court

Appellate Division

(Civil)

JUSTICE

Mahmudul Amin Chowdhury CJ

Mainur Reza Chowdhury J

Md. Ruhul Amin J

Md. Fazlul Karim J

K M Hasan J

Syed J R Mudassir Hussain J

Abu Sayeed Ahammed J

Judgment  : June 17, 2002.

The Constitution of Bangladesh, 1972, Article 41

i) It is in no way desirable for the higher court, whose decision has binding effect on the courts subordinate to it, to embark on a matter which is totally unconnected with the subject matter before it. (7)

ii) While disposing of the Divorce Suit No. 1 of 1998 for making recommendation for enactment of ‘Unified Marriage and Divorce Act for all the citizens’ the said recommendation is totally unconnected with and irrelevant to the subject matter of the Divorce Suit……(7)

Lawyers Involved:

Muhammad Nazrul Islam, Advocate instructed by Md. Nawab Ali, Advocate-on-Record — For the Petitioner

Not Represented — The Respondents.

Civil Petition for Leave to Appeal No. 461 of 2001.

(From the Judgment and Order dated 30th October, 2000 passed by the High Court Division in Divorce Suit No.1 of 1998).

JUDGEMENT

                 Md. Ruhul Amin J.- This petition for leave to appeal is by the 3rd party against the judgment and order dated 30th October, 2000 passed by the High Court Division in Divorce Suit No. 1 of 1998. Leave to appeal is sought against certain observation in the aforementioned judgment “We recommend that a Unified Marriage and Divorce Act for all the citizens should be enacted by the Parliament keeping in pace with the modem time’.

2. In our view, instead of granting leave to appeal, petitioner’s anxiety reflected in the leave petition will be attended better if the leave petition is disposed of in the manner as hereinafter.

3. Respondent No. 1 filed Title Suit No. 2 of 1993 in the Court of District Judge under section 10 of the Divorce Act, 1869 seeking dissolution of her marriage with respondent No. 2 on various grounds including adultery. The District Court decreed the suit on 10 February 1998 and thereafter as per provision of section 17 of the Divorce Act forwarded the suit-record to the High Court Division for confirmation of the decree and thereupon Divorce Suit No. 1 of 1998 was registered in the High Court  Division. The High Court Division confirmed the decree of dissolution of marriage between the respondent Nos. 1 and 2 that was passed by the District Court in Title Suit No. 2 of 1993.

4. The High Court Division in confirming the decree of dissolution of marriage passed in Title Suit No. 2 of 1993 out of the context and is in no way relevant to the subject matter of Divorce Suit No. 1 of 1998 made recommendation for the enactment of Unified Marriage and Divorce Act for all the citizens. The petitioner on behalf of the community it is representing has taken exception to unsolicited, uncalled for as well as totally unconnected with and irrelevant to the subject matter of the suit recommendation for enactment of Unified Marriage and Divorce Act for all citizens contending the learned Judges of the High Court Division erred in not considering that Islam is a complete code of life of Muslims and that there being clear provision of law relating to marriage and divorce in the Holy Quran as well as in the Hadith which is binding upon the Muslim and that there being no scope to add, alter or modify any of the provision, relating to Muslim Marriage and Divorce in any respect and, as such, the recommendation for enactment of Unified Marriage and Divorce Act for all the citizens by the parliament keeping in pace with the modem time is without jurisdiction being violative of the provision of Article 41 of the Constitution.

5. The respondent No. 1 for dissolution of her marriage with the respondent No. 2 filed petition before the District Court under section 10 of the Divorce Act, 1869 since the said respondents are professing Christianity. The District Court passed decree for dissolution of marriage between the respondent Nos. 1 and 2 and thereupon as per provision of section 17 of the Divorce Act, 1869 made reference to the High Court Division for confirmation of decree of dissolution of marriage between the 1 Nos. 1 and 2 and Divorce Suit as mentioned herein before was registered in the High Court Division.

6. The learned Judges of the High Court Division under the law was required to see whether the decree of dissolution of marriage between the respondent Nos. 1 and 2 passed by the District Court was in accordance with law and that if the decree was in accordance with law then to confirm the same and if not then to set aside the same. The learned Judges had no occasion to go beyond the said scope and that to go for making impertinent recommendation regarding a matter irrelevant to the subject matter of the Divorce Suit No. 1 of 1998.

7. The unfortunate part of the matter is that the learned Judges of the High Court Division being totally unmindful of their legal limit while exercising the power of confirmation of the decree of dissolution of marriage passed by the District Court upon being sought by the respondent No. 1 against respondent No. 2, both professing Christianity, made impertinent recommendation which is totally unconnected with and irrelevant to the matter before the learned Judges for decision in either way. The learned Judges certainly went beyond the scope of the subject matter of the Divorce Suit in making uncalled for recommendation to which the leave petitioner has taken exception contending that the said recommendation has violated fundamental right of the community, to advocate whose grievance it has moved this Division, to profess the personal religion of the said community in all respects and the freedom of choice of regulating their personal institutions concerning different aspects of life in accordance with the direction of the Holy Quran and the highly adored Hadith as guaranteed by the Article 41 of the Constitution. The learned Judges may have their own view as regard particular matter and may seriously wish that the same be implemented by the State but the forum chosen by the learned Judges for propagation of their said personal view or wish is not the appropriate one, rather wrong. It is in no way desirable for the higher court, whose decision has binding effect on the courts subordinate to it, to embark on a matter which is totally unconnected with the-subject matter before it for adjudication and that also has no relevancy in any manner to the subject matter which comes before the court for adjudication as in the instant case the High Court Division has done. It has always been deprecated by the superior court or in other words, by the highest court that a court should not embark on a subject, which is not before it for adjudication and not to express any view as to the matter, which is not at all necessary for adjudication of the matter before it or to go for dissemination of the view either personal or activist-group as regard a matter unconnected with the matter for adjudication. In that view of the matter we are of the view that High Court Division was totally wrong in traveling beyond the scope of the Divorce Suit No. 1 of 1998 in making recommendation in respect of the matter, which had no connection or relevancy with the subject matter of the said Divorce Suit No. 1 of 1998. So, there was no necessity for the High Court Division in any manner to feel for any requirement of the enactment of ‘Unified Marriage and Divorce Act for all the citizens’ in adjudicating the matter involved in the Divorcee Suit No. 1 of 1998. Since it was not necessary for the High Court Division, in any manner, while disposing of the Divorce Suit No. 1 of 1998 for making recommendation for enactment of ‘Unified Marriage and Divorce Act for all the citizens’ the said recommendation is totally unconnected with and irrelevant to the subject matter of the Divorce Suit No. 1 of 1998 and, as such, as the said unsolicited recommendation is uncalled for and which has given rise to reasonable apprehension in the mind of the community at large. In the background of the provision of Article 41 of the Constitution we are of the view that the said recommendation, of the High Court Division taking exception to and against which the leave petition has been filed need be expunged and that can be very well done without affecting the decree as passed in Divorce Suit No. 1 of 1998. Accordingly, the controversial part of the judgment of the High Court Division which runs as, “we recommend that a Unified Marriage and Divorce Act for all the citizens should be enacted by the Parliament keeping in pace with the modern time” is hereby expunged.

The leave petition, with the above observations and upon expunging the impertinent recommendation, is disposed of.

Ed.

Source : 54 DLR (AD) (2002) 168

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