Mst. Rousan Ara
Alhaj Mst. Hazera, Begum alias, Hazera Khatun & another,
MM Ruhul Amin J
Md. Hashan Ameen J
Mst. Rousan Ara ……………………………………………………….Petitioner
Alhaj Mst. Hazera, Begum alias, Hazera Khatun & another……..Respondents
June 5, 2007.
Md. Nawab Ali, Advocate-on-Record-For the Petitioner.
N. H. Khandaker, Advocate-on-Record-For Respondent No. 1.
Not represented-Respondent No. 2.
Civil Petition for Leave to Appeal No. 992 of 2003
(From the Judgement and order dated 09.11.2002 passed by the High Court Division in Civil Revision No. 4897 of 1998).
MM Ruhul Amin J. – This petition for leave to appeal is directed against the judgment and order dated 09.11.2002 passed by a Single Bench of the High Court Division in Civil Revision No. 4897 of 1998 discharging the Rule.
2. The plaintiff instituted other Class Suit No.274 of 1988 in the Court of Additional Assistant Judge, 1st Court, Rajshahi Sadar for a declaration that the plaintiff was the only legally married wife of late Alhaj Faruque Hossain till his death stating, inter alia, that she married late Alhaj Faruque Hossain, son of late Abdul Malek fixing a dower money of Tk. 3,001/- on 26.07.1981 under the Muslim Family Laws Ordinance. Late Alhaj Faruque Hossain was a retired police officer and after the death of his first wife, Morzia Khatun she was married to the said late Alhaj Faruque Hossain. The further case of the plaintiff is that she was a widow before her marriage with Alhaj Faruque Hossain and both of them has no children. The defendant No.1 was appointed as maid servant by the plaintiffs husband to look after the household affairs of said Alhaj Faruque Hossain and she was working till the death of late Alhaj Faruque Hossain. The plaintiff performed her iddat and others religious formalities. Thereafter, the defendant No.1 claimed herself to be the wife of late Alhaj Faruque Hossain for the first time on 10.11.1988. The further case of the plaintiff is that late Alhaj Faruque Hossain never divorced her and he did not marry the defendant No.1 of the suit.
3. The defendant No.1 contested the suit by filing written statement denying the material allegations made in the plaint. Her case is that the plaintiff has no locus-standi to file this suit. Late Alhaj Faruque Hossain acquired some properties in the benami of his first wife Morzia Khatun who instigated him to make wakf of those properties. Late Alhaj Faruque Hossain then filed other class suit No. 377 of 1962 in the Court of Subordinate Judge (now Joint District Judge), Rajshahi. In that suit Morzia Khatun admitted that she was benamder. Thereafter, Alhaj Faruque Hossain died. The present plaintiff was brought from India by her relation Kazi Abdus Sami and she was married with late Alhaj Faruque Hossain on 26.07.1982 and she secretly smuggled the household goods of late Alhaj Farque Hossain and as a result Alhaj Faruque Hossain divorced her on 27.03.1983 by a registered Talaknama and married defendant No. 1 on 16.04.1983 by a registered Kabinnama.
4. The trial Court on consideration of the materials on record decreed the suit. On appeal in Title Appeal No.215 of 1990, the appellate court affirmed the judgment of the trial court. Being aggrieved, the defendant moved the High Court Division in revisional jurisdiction and obtained the Rule, which after hearing was discharged as stated above.
5. We have heard Mr. Md. Nawab Ali, the learned Advocate-on-Record for the petitioner and Mr. N. H. Khandaker, the learned Advocate-on-Record for respondent No. 1 and perused the judgment of the High Court Division and other connected papers.
6. The High Court Division observed that in Title Suit No.238 of 1983 Alhaj Faruque Hossain was a defendant. Kazi Abdus Shami who was a relative of the plaintiff filed an application for substitution of the heirs of Alhaj Faruque Hossain and the plaintiff was accordingly impleaded as substituted defendant No.1-A. Thereafter, the defendant no. IB (defendant of the present suit) appeared in the said suit and by filing an application stated that Alhaj Faruque Hossain divorced the plaintiff. Then Kazi Abdus Shami filed an application for expunging the name of Hajera Khatun and order was passed accordingly. The High Court Division held that in the documents Exhibits-Jha, Neo and Ta there is nothing to show that Alhaj Faruque Hossain divorced the present plaintiff. The High Court Division further observed that in the said suit Alhaj Faruque Hossain did not say that he divorced the plaintiff. The statement made by the third party in this regard is not admissible in evidence against the plaintiff who was substituted defendant No. 1-A in the suit and appeared. Accordingly the High Court Division and the appellate court and trial court concurrently held that the defendant No.1 failed to prove that late Alhaj Faruque Hossain divorced the plaintiff on 17.03.1983 and that the marital tie between the plaintiff and late Alhaj Faruque Hossain was in existence till the death of late Alhaj Faruque Hossain.
7. In view of the materials on record Mr. Nawab Ali, the learned Advocate -on-Record found difficult to assail the Judgment of the High Court Division. Accordingly, the leave petition is dismissed.
Source:IV ADC (2007) 689