Appellate Division Cases
Md. Yousuf Ali …………………………………………….Appellant
Kazi Syed Shamsul Hoque and others…………………… Respondents
Syed J. R. Mudassir Husain C.J.
Mohammad Fazlul Karim J
Amirul Kabir Chowdhury J.
Date of Judgment
30th January, 2006
Rule 6 of the Muslim Marriage and Divorces (Registration) Rules, 1995, 11
Moulvi Md. Khurshid Alam Vs. Bangladesh 50 DLR (AD)82, Kazi Md. Amirul Islam Vs. Bangladesh 16 DLR (AD) 82, Kazi Imamuddin Bhuiya Vs. Bangladesh 10 BLC (AD) 2005 page 134
The legality of the order of curtailment of the area and also on the ground that the appellant being not a resident of the area was not eligible for the licence and as such the High Court Division committed error making the Rule absolute in his favour and the judgment being contrary to law cannot sustain (7)
A. J. Mohammad Ali, Senior Advocate, instructed by Mr. Md. Aftab Hossain, Advocate-on-Record. For the Appellant Mansur Habib, Advocate, instructed by Mr. Md. Nawab Ali Advocate-on-Record For Respondent No. 1.A.K.M. Shahidul Huq, Advocate-on-Record. For Respondent No.2 Not represented For Respondent Nos. 3-5.
1. Amirul Kabir Chowdhury, J. This appeal on leave is directed at the instance of the respondent No. 3 Md. Yousuf Ali calling in question the judgment and order dated 15.04.1999 passed by a Division Bench of the High Court Division in Writ Petition No.
2918 of 1998 thereby declaring the order passed by the respondent No. 1 Government
of Bangladesh on 07.09.1998 to be without lawful authority.
2. The case of the writ petitioner respondent No. 1 is that he passed his Alim (equivalent to Intermediate) with English as Additional subject and also passed the Fazil (equivalent to graduation) with additional subject English and logic from Darul Ulum Madrasha in the district of Chittagong. His father was appointed as Marriage Registrar of Patenga, Halishar. Agrabad and Rampur area under Double Mooring Police Station of Chittagong District and on his leave from December 17, for 10 weeks for illness the writ petitioner was appointed as Nikah Registrar giving temporary licence for 10 weeks by the Ministry of Law and Parliamentary Affairs, Government of Bangladesh on 24.12.1997. Thereafter the writ petitioner was appointed as temporary Nikah Registrar for 3months with effect from April 7, 1977 after the retirement of the previous Nikah Registrar and the temporary
appointment was extended till his appointment as permanent Nikah Registrar by order dated July 20,1977. The writ petitioner was appointed as Nikah Registrar permanently for Patenga, Halishar, Agrabad and Rampur Unions under Double Mooring Police Station within Chittagong Municipality and parts of the area were beyond Chittagong Municipality and subsequently the entire areas were included in the Chittagong Municipality and were divided into several wards instead of Unions namely, ward No. 24
Uttar Agrabad, Ward No. 27, Dakshin Agrabad, ward No.25 Rampur, ward No. 26 Uttar Halishahar, Ward No. 37 Madahya Halishar, Muiiirnagar, Ward No. 38, Dakshin Madaya Halishar, Ward No. 39 Dakshin Halishahar, Ward No. 40 Uttar Patenga and Ward No. 41 Dakshin Patenga.
3. Respondent Nos.4 and 5 are son and sonin law respectively of the writ petitioner who are qualified to become Nikha Registrar having no job to maintain their livelihood. Respondent Nos. 4 and 5 applied for Marriage Registrar to the authority. Respondent No. 4 was appointed a Nikah Registrar on temporary basis in respect Ward No.26, Uttar Haslishar of 37 Halishar Muniguagar and 38 Dakhin Madahya Halishar and respondent No.5 was appointed Nikah Registrar for Ward No.39, Dakhin Halishar, 40 Uttar Patenga, 41 Daskshin Patenga, Respondent No. 1 appointed respondent No. 3 as Marriage Registrar on temporary basis curtailing Ward No. 24 Uttar Agrabad from the area of the writ petitioner overlooking that respondent No. 3 Md. Yusuf Ali hails from he village Dakshin Kanchana S.M. Chowdhury Bari under Satkania Police Station of the Chittagong District situated about 40 miles away from City Corporation Area. According to the writ petitioner this curtailment of Ward No. 24 from the area of the writ petitioner and the appointment of respondent No.3 a person resident of different ^ police station was illegal.
4. A Division Bench J the High Court Division by the impugned judgment and order made the rule absolute as already mentioned above.
5. Leave was granted to consider the submissions made on behalf of the appellant that the
appellant was appointed as Nikah Registrar of Ward No. 34 of Chittagong Municipality on 07.09.1998 by the respondent No.2 and that the appellant was resident of Ward No. 24
having his address given at Ayesha Fakirair Bari. Moulaipara, P.S. Double Mooring, District- Chittagong within Ward No. 24 of the City Corporation of Chittagong and as such there is no legal embargo for his appointment as Nikah Registrar under Rule 6 of the
Muslim Marriage and Divorces (Registration) Rules, 1995 and further, voter list showing the appellant as resident of Ward No. 24 of Chittagong City Corporation was also filed and that the High Court Division while making the rule absolute failed to consider that the impugned notice in question was in fact one of curtailment of area under second proviso to Rule 11 of the aforesaid Rules of 1995.
6. In Support of the appeal Mr. A. J. Mohammad Ali, learned Counsel reiterates the submissions made earlier in support of the leave petition and has placed before us amended provision of Rule 6 of the Muslim Marriages and Divorces (Registration) Rules,
7. He submits that the respondent moved the High Court Division mainly calling in question the legality of the order of curtailment of the area and also on the ground that the appellant being not a resident of the area was not eligible for the licence and as such the High Court Division committed error making the Rule absolute in his favour and the judgment being contrary to law cannot sustain.
8. Mr. Mansur Habib, learned Advocate appearing on behalf of the respondent No. 1 opposes the appeal contending, inter-alia, that the appellant is not permanent resident of the area in question and so is not entitled to be appointed as Nikah Registrar of the said area and as such the High Court Division correctly decided the case declaring his appointment as illegal.
9. To examine the bone of contention between the parties let us examine relevant Rule of Muslim Marriage and Divorces (Registration) Rules 1995 which runs as follows: Qualification, etc., of candidates. (1) Candidates seeking licence of Nikah Registrar must possess Alim Certificate from a Madrasha Board established under any law for the time being in force.(2) A candidate seeking licence of Nikah Registrar must be of between 21 and 40 years of age. (3) No person shall be selected for a licence of Nikah Registrar unless be is a resident of the area in which the vacancy occurs. From the aforesaid provision of law it appears that unless being resident of an area no person shall be selected for licence of the Nikah Registrar.
10. Let us, therefore, consider whether the word ‘resident’ means a person having essentially a permanent residence. The word residence has been defined, on the basis of various judicial pronouncements of higher courts in Mitra’s Legal & Commercial Dictionary [fourth edition at page 677] to be that ‘connotes that a person eats, drinks and sleeps at that place and not that he owns it. Residence includes permanent as also temporary residence.’ 11. In the case of Ratanlal Vs. T.A. Authority reported in AIR 1969 MP 204 a question arose as to the meaning of the word residence. The case pertained to the grant of stage carriage permits in the State of Uttar Pradesh. There being vacancy in the three permits in the route, applications were invited for allotting the three permits.
12. Section 45 of the Motor Vehicles Act regulating granting of such permits provided that the permit would be given provided, ” further that if it is proposed to use the vehicle or vehicles in two more regions lying in different States, the application shall be made to the Regional Transport Authority of the region in which the applicant resides or has his principal place of business”.
13. The matter taken to the court Singh, J observed: ” 5. The question raised is about the meaning of the word” resides” as it occurs in the second proviso. In its ordinary meaning the word is capable of embracing permanent as also temporary residence. Referring to the
word “resides” in Section 33 of the Registration Act. 1908, the Privy Council in Sarat Chandra V. Bijoy Chand. AIR 1937 PC 46 at P.47 observed:
14. The expression ‘resides’ as used in Section 33, is not defined in the statute, but there’is no reason for assuming that it contemplates only permanent residence and excludes temporary residence. “
15. These observations were quoted and followed by the Supreme Court in Kishore Chandra V. Ganesh Prasad. AIR 1954 SC 316 at p 320.
16.The meaning of the word “resides1 again came up for consideration before the Supreme Court, in the context of Section 488 (8) of the Code of Criminal Procedure. 1898. in Jagir Kumar V. Jaswant Singh. AIR 1963 SC 1521 where it was said:
17. The said word has been subject to conflicting judicial opinion. In the Oxford Dictionary it is defined as: “dwell permanently or for a considerable time: to have one’s settied or usual abode; to live in or at a particular place” The said meaning, therefore, takes in both a permanent dwelling as well as a temporary living in a place. It is. therefore, capable of different meanings, including domicile in the strictest and the most technical sense and a temporary residence. Whichever meaning is given to it, one thing is obvious and it is that it does not include a casual stay in, or a flying visit to a particular place. In short, the meaning of the word would, in the ultimate analysis, depend upon the context and the purpose of a particular statute. In this case the context and purpose of the present statute certainly do not compel the importation of the,concept of domicile in its technical sense. The purpose of the statute would be better served if the word “resides” was understood to include temporary residence.”
18. Now coming to the case before us and on perusal of the law mentioned above it thus appears that the legislature in its wisdom did not mandate that in order to be selected for a
licence of Nikah Registrar the incumbent is to be a ‘permanent’ resident of an area. Only criteria required to be attained is that the incumbent should be a “resident1 of the area. It is not denied that in the application for appointment the appellant mentioned his address at Ayesha Fakirair Bari, Moulaipara, Uttara Agrabad, Chittagong within the jurisdiction of the area of Ward No.24 Agrabad under Chittagong City Corporation and in support thereof voter’s list finally published on 07.10.1995 of Ward No.24 containing the name of the appellant in the said address was also there.
19. In view of the aforesaid materials it cannot be said that the appellant incurred disqualification to be selected for licence of Nikah Registrar of Ward No.24 of Chittagong City Corporation, being allegedly not a permanent resident of the area.
20.On perusal of the impugned judgment it appears that the learned Judges of the HighCourt Division did not consider this vital aspect of the case.
21. Though grounds were taken challenging the authority of the respondent No.l to curtail
the jurisdiction of the area of the respondent No.3 resulting in the appointment of the appellant as Nikah Registrar for the curtailed area but in view of the settled position of law in this matter as reported in the decisions in the cases Moulvi Md. Khurshid Alam Vs. Bansladesh50 DLR (AD)82. Kazi Md. Amirul Islam Vs. Bangladesh 16 DLR (AD) 82, Kazi Imamuddin Bhuiya Vs. Bangladesh 10 BLC (AD) 2005 page 134 the learned Advocate for the respondent candidly refrained from pressing the ground on the point of curtailment of the area.
22. We have perused the impugned judgment of the High Court Division and in view of the discussion made above we are unable to see eye to eye it. We are of the view that the learned Judges of the High Court Division have not arrived at a correct decision and as such the impugned judgment passed by the High Court Division cannot be sustained and
so the appeal should be allowed.
23. The appeal is, therefore, allowed. In the facts and circumstances we directed the parties to bear their own costs.
SOURCE: III ADC (2006) 722