Obaidur Rahman Vs. Tahmina Ahmed, (Soumendra Sarkder, J.)

Case No: Civil Revision No. 1055 of 2016

Judge: Soumendra Sarker, J

Court: High Court Division,

Advocate: Mr. Sk. Rashedul Hoque, Advocate ,

Citation: 2018(2) LNJ

Case Year: 2017

Appellant: Obaidur Rahman

Respondent: Tahmina Ahmed alias Mst. Tahmina Begum

Subject: Family Laws Ordinance

Delivery Date: 2019-12-02

 

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Soumendra Sarker, J

 

Judgment on

08.11.2017

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Obaidur Rahman

. . . Defendant-Appellant- Petitioner

-Versus-

Tahmina Ahmed alias Mst. Tahmina Begum

. . . Plaintiff-Respondent-Opposite Party.

Family Laws Ordinance (VIII of 1961)

Section 7(1) and 7(4)

Code of Civil Procedure (V of 1908)

Order XLI, Rule 27

With regard to giving “talaq” as alleged from the side of the defendant-petitioner, some legal formalities are pre-conditions of a valid Talaq, but I have come across from the connected papers that it is not the pleading’s case of the defendant that under the ambit of Muslim Family Laws Ordinance, 1961 he gave “talaq” to his wife after completion of the formalities laid down in section 7(1) and (4) of the relevant law. Furthermore; it is not the case of the defendant in his written statement that he ever gave any notice of “talaq” to his wife or the concerned Union Parishad Chariman. Therefore, obviously under the ambit of Order XLI rule 27 of the Code of Civil Procedure for additional evidence, there is no scope to entertain the application submitted from the side of the defendant-petitioner which is apparently beyond the pleading of the defendant-petitioner. Moreso; at this stage, to fill-up the lacuna; the defendant-petitioner is not entitled to amend his pleading under Order VI, rule 17 of the Code of Civil Procedure as verbally prayed for by the learned Advocate of the Petitioner. Having regard to the facts, circumstances and the decisions the learned court of appeal below during passing the impugned judgment and decree committed no such illegality or infirmity or misreading and non-reading of evidence or non-consideration of material facts resulting in an error in the decision occasioning failure of justice by which the impugned judgment and decree can be interfered with.                                           . . . (15 and 17)

Mr. Sk. Rashedul Hoque, Advocate

. . . For the petitioner

Mr. Shashti Sarker, Advocate

. . . For the Opposite Party.

JUDGMENT

Soumendra Sarker, J: The Rule was issued calling upon the opposite party to show cause as to why the impugned judgment and decree dated 24.02.2016 passed by the learned Additional District Judge, Rajbari in Family Appeal No.06 of 2015 allowing the appeal-in-part by reducing the dower money from Tk.3,00,000/- (Three lac) to Tk.1,49,500/- (One lac forty nine thousand and five hundred) and thereby modified the judgment and decree dated 06.04.2015 passed by the learned Judge, Family Court, Pangsha, Rajbari in decreeing the Family Suit No.43 of 2013 should not be set aside and/or such other or further order or orders passed as to this Court may seem fit and proper.

2.             The facts leading to the issuance of the Rule in a nutshell can be stated thus, the present opposite party as plaintiff instituted the original Family Suit being No. 43 of 2013 in the Court of learned Judge, Family Court, Pangsha, Rajbari against the present petitioner for getting a decree on dower money and maintenance contending inter alia that on 25.11.2010 the plaintiff got married to the defendant according to Muslim Shariah Law. In the office of the Notary Public, Dhaka in presence of one Mawlana the dower money was fixed at Tk. 3,00,000/- (Three lac). Subsequently, after the execution of ‘holofnama’ (affidavit) with regard to the marriage, according to the terms and conditions of that ‘holofnama’ on 10.12.2010 the marriage ceremony was held in the residence of the plaintiff’s father through one Md. Yousuf Kari. The ‘kabinnama’ was executed and registered on that date. Thereafter, the plaintiff and the defendant lived together as husband and wife in the residence of the defendant. The marriage was duly consumed, and at a stage of that; the defendant became addicted and he started to give pressure to the plaintiff for obtaining money as dowry from her father. The plaintiff while denied to bring money as dowry from her father, the defendant started torture to her and on 14.04.2013 the defendant driven her out from his residence and as a result of that; the plaintiff finding no other alternative returned back to the residence of her parents in one cloth. The further case of the plaintiff is such that the defendant was requested repeatedly to resolve the matter, but without resolving the matter of demanding dowry, the defendant again demanded Tk. 2,00,000/- (Two lac) dowry from the father of the plaintiff. The parents of the plaintiff was not in a position to give the dowry amount and since then the plaintiff is residing in the residence of her parents.

3.             The contrary case of the defendant-petitioner in short is thus, that a relationship was developed between the plaintiff and the defendant through mobile phone initially and at a stage of that; the plaintiff asked the defendant to come at Savar of district Dhaka. Accordingly, the defendant on 25.11.2010 went to Savar, where the plaintiff and her other relatives with the help of some terrorists confined the defendant in a room and managed to obtain his signatures in a volume book and other papers. The further case of the defendant is such that the plaintiff and her men created a ‘kabinnama’ of marriage between he and the plaintiff, in where; the dower money was fixed at Tk.1,50,000/- (One lac and fifty thousand), out of which Tk.1,000/- (one thousand) was paid instantly. Subsequently, the defendant coming to his own residence from the residence of the plaintiff, informed the matter to his parents and other relatives and a “Shalish-boithak” was held. In that “Shalish-boithak” it was decided that the plaintiff will take the rest dower money including maintenance at a time. Accordingly, the plaintiff in that “Shalish-boithak” accepted Tk.1,50,000/- (One lac fifty thousand), which was given by the defendant to her. Thereafter, the defendant on 02.02.2013 going to the office of the marriage register gave “Talaq” to the plaintiff and an affidavit was executed to that effect in the office of the Notary Public on 03.02.2013. The defendant denied the marriage-tie with the plaintiff and prayed for dismissal of the original suit.

4.             The learned trial court at trial of the original suit on 06.04.2015 passed the ex-parte judgment and decree against the defendant.

5.             Being aggrieved the defendant preferred an appeal being Family Appeal No.06 of 2015 in the court of learned District Judge, Rajbari, which was transmitted to the Court of learned Additional District Judge, Rajbari for hearing and disposal and the learned appellate court hearing the appeal by his judgment and decree dated 24.02.2016 disallowed the appeal in part and affirmed the judgment and decree passed by the learned trial court in modified form.

6.             Being aggrieved by and dissatisfied with the impugned judgment and decree the defendant-appellant-petitioner have preferred this revisional application under section 115(1) of the Code of Civil Procedure and obtained the Rule with an interim order of stay.

7.             During hearing of this Rule Mr. Sk. Rashedul Hoque, the learned Advocate appeared on behalf of the petitioner while Mr. Shasti Sarkar the learned Advocate appeared on behalf of the opposite party.

8.             The learned Advocate appearing on behalf of the petitioner submits that in fact; there was no lawful marriage between the plaintiff and the defendant and the plaintiff taking advantage of good relationship between she and the defendant, with the help of her relatives and some terrorists managed to create a “kabinnama” forcibly confining the defendant in a room and taking his signatures by threatening. The learned Advocate further submits that, the trial court as well as the appellate court committed illegality in holding the view that in fact the marriage ceremony was solemnized between the parties and there was unpaid dower money of that marriage. The learned Advocate also submits that the defendant after the so-called marriage divorced the plaintiff in proper way and swear an affidavit in the office of the Notary Public. The learned Advocate for the petitioner during his submissions after filing an application under Order XLI, rule 27 along with section 151 of the Code of Civil Procedure supported by two acknowledgement receipts and copy of notice under section 7(1) of Muslim Family Laws Ordinance, 1961 prays for giving the defendant-petitioner an opportunity to prove his case after accepting the papers submitted by him as additional evidence.

9.             As against the aforesaid submissions and application, the learned Advocate appearing on behalf of the opposite party opposing the Rule and application, vehemently controverted the submissions advanced from the side of the petitioner and submits that the papers filed at present are all collusive, fraudulent and created and that, there was no threat or coercion from the side of the plaintiff-opposite party for the marriage ceremony between the plaintiff and the defendant. The learned Advocate further submits that the defendant-petitioner voluntarily with his free and full consent married the plaintiff-opposite party and the “kabinnama” was executed and registered fairly and legally, in which; the dower money was fixed at Tk. 3,00,000/- (Three lac). The learned Advocate also submits that during disposal of the original suit and it’s subsequent appeal the learned trial court as well as the appellate court committed no illegality or irregularity, rather; on the basis of sufficient credible evidence the judgment and order was passed. The learned Advocate argued that at this stage; there is no scope for additional evidence or acceptance of the papers filed from the side of the defendant-petitioner under Order XLI, Rule 27 read with section 151 of the Code of Civil Procedure, since all these papers are recent in origin and are forged, fabricated and manipulated. The learned Advocate further submits that, neither in the trial court nor in the appellate court, these papers were filed or exhibited after proof from the side of the defendant-petitioner and subsequently out of ill-motive to deprive the plaintiff-opposite party from getting her lawful demand which is her legal right, all these papers has been created. The learned Advocate lastly after referring some decisions of this Court and our Apex Court submits that the learned appellate court below rightly in his judgment and findings conclusively held that no notice under section 7(1) of the Muslim Family Laws Ordinance, 1961 was given or issued by the defendant in support of the alleged ‘Talaq’. The acknowledgement due notice and the papers showing ‘Talaqnama’ are all spurious papers. In the written statement also it is not the pleading’s case of the defendant that notice under section 7(1) of the Muslim Family Law Ordinance, 1961 was given or issued by him. Apart from this; in the pleading of the defendant or in his written statement, the story of “Shalish-boithak” is totally absent. Hence; in no way the defendant-petitioner is in a position to take any advantage of additional evidence under Order XLI, Rule 27 of the Code of Civil Procedure or any relief as prayed for.

10.         Considering the submissions of the learned Advocates I have perused the impugned judgment and decree passed by the learned appellate court below and the judgment and decree passed by the trial court along with the plaint and the written statement of the original family suit being No.43 of 2013 including all other relevant papers and evidences lead from the sides of the respective parties.

11.         Having gone through the case records and the evidences it transpires that the plaintiff to the suit in order to get a decree of dower money and maintenance instituted the original suit under the ambit of Muslim Family Laws Ordinance, 1961. It has been contended within the pleading of the plaintiff that the marriage was held between the plaintiff and the defendant initially on 25.11.2010 and subsequent to that, with the consent of the guardians of the both bride and bride-groom on 10.12.2010 in the residence of the bride, plaintiff-opposite party at a village namely “Para-Belgachi”, under Kalukhali Upazaila of District-Rajbari; the concerned ‘Kazi’ of Kalikapur Union Parishad gave the marriage as per law and the ‘kabinnama’ was executed on the same date 10.12.2010. It is the further contention of the plaintiff-opposite party in her plaint that during the subsistence of their conjugal life, the defendant became drug addicted and at a stage of that; he demanded dowry from the father of the plaintiff amounting to            Tk. 2,00,000/- (Two lac) and while the plaintiff denied to pay the amount after bringing the same from her parents, the defendant has driven her out of his residence with one cloth on 14.04.2013 and since then; the plaintiff-opposite party is residing in the residence of her parents.

12.         Vis-à-vis; it is the pleading’s case of the defendant-petitioner that the marriage ceremony was not held under his free consent and desire. It was further case of the defendant that between he and the plaintiff a good relationship was devolved through a cell phone and taking advantage of that, the plaintiff requested him to come at Savar on 25.11.2010. On that date when the defendant went to Savar, the plaintiff in collusion with her relatives and some miscreants forcibly confined the  defendant in a room and managed to take his signatures in a volume book by which the ‘kabinnama’ was created and in that ‘kabinnama’ the dower money was fixed at Tk.1,50,000/-. It was further case of the defendant in his pleading that subsequently; on 02.02.2013 going to the office of the Marriage Register he gave “Talaq” to the plaintiff and on the following date i.e. on 03.02.2013 the defendant going to the office of the ‘Notary Public’ terminated the relationship of husband and wife by swearing an affidavit. In the pleading it was contended by the defendant-petitioner that there was a family ‘shalish-boithak’ between the two families and it was decided in that ‘boithak’ that the defendant will pay Tk.1,50,000/- to the plaintiff and according to that decision, the defendant paid the entire money to the plaintiff.

13.         Having gone through the evidence on case records I find that in the original suit the defendant after taking several adjournments for pre-emptory hearing; finally, on the date fixed for further pre-emptory hearing again filed an application for time and the learned trial court after imposing a cost amount of Tk. 3,000/- (Three thousand) fixed a date for further pre-emptory hearing. On the date fixed; without payment of the cost amount the defendant-petitioner again filed an application for time and the learned trial court rightly after rejecting his prayer has taken the case for exparte disposal. On that date the plaintiff Tahmina Ahmed deposed in support of her plaint case. She has proved the ‘kabinnama’ which has been marked as Exhibit-1 and the defendant remaining absent did not cross-examine the plaintiff. Subsequently; during appeal hearing the defendant Md. Osman Haider deposed before the appellate court as D.W.1. In his testimony the defendant testified at a stage that in a family ‘Shalish Boithak’ in presence of his relatives it was decided that he(defendant) will pay a sum of Tk.1,50,000/- to the plaintiff and according to that decision the plaintiff accepted the amount from the defendant.

14.         During cross-examination in a reply to a question, D.W.1 testified at a stage that, it is not known to him that in the ‘kabinnama’ of their marriage the dower money was Tk.3.00 lac. In the deposition the defendant-petitioner admits that there was no “Shalishnama” in the “Shalish Boithak” and he cannot recollect the date of “Shalish Boithak” and he also cannot state the names of the presentees of that “Shalishnama” excepting the names of the father and uncle of the plaintiff. The defendant testified in his testimony that, on the following day of 02.02.2013 he gave “Talaq” to the plaintiff. In this context; the provisions laid down in section 7 of the Muslim Family Laws Ordinance, 1961 is required to be looked into, which reads as follows:-

“7(1). Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsovever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.”

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“7(4). Within thirty days of the receipt of notice under sub-section (1), the Chairman shall constitute an Arbitration Council for the purposes of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.”

15.         Hence, I find that with regard to giving “talaq” as alleged from the side of the defendant-petitioner, the above mentioned legal formalities are pre-conditions of a valid Talaq, but I have come across from the connected papers that it is not the pleading’s case of the defendant that under the ambit of Muslim Family Laws Ordinance, 1961 he gave “talaq” to his wife after completion of the formalities laid down in section 7(1) and (4) of the relevant law. Furthermore; it is not the case of the defendant in his written statement that he ever gave any notice of “talaq” to his wife or the concerned Union Parishad Chariman. Therefore, obviously under the ambit of Order XLI rule 27 of the Code of Civil Procedure there is no scope to entertain the application submitted from the side of the defendant-petitioner which is apparently beyond the pleading of the defendant-petitioner. Moreso; at this stage, to fill-up the lacuna; which has already been accrued in favour of the plaintiff, the defendant-petitioner is not entitled to amend his pleading under Order VI, rule 17 of the Code of Civil Procedure as verbally prayed for by the learned Advocate of the Petitioner.

16.         In the context of “talaq” as provided in the relevant law of Muslim Family Laws Ordinance, 1961, this court in the case of Dilruba Aktar –vs.- AHM Mohsin 55 DLR 568 held that, ‘Talaq in any form shall not stand effective and talaq shall not be talaq in the eye of law unless provision contained in section 7(1) is sternly complied with’. Besides this; in the case of Kazi Rashed Akhter Shahid –vs.- Rokshana Choudhury  (Sanda) 58 DLR 271, it is observed by this Court that section 7(1) of Muslim Family Laws Ordinance (VII of 1961) requires the husband to give a notice in writing of his having pronounced talaq. If the husband abstains from issuing such notice to the Chairman, it would be deemed that the husband has revoked the talaq and the material status of the parties has not been changed.

17.         Having regard to the facts, circumstances and the decisions referred to above, I am constrained to hold such a view that the learned court of appeal below during passing the impugned judgment and decree committed no such illegality or infirmity or misreading and non-reading of evidence or non-consideration of material facts resulting in an error in the decision occasioning failure of justice by which the impugned judgment and decree can be interfered with.

18.         In the result, the Rule is discharged. The impugned judgment and decree dated 24.02.2016 passed by the learned Additional District Judge, Rajbari in Family Appeal No.06 of 2015 allowing the appeal-in-part by reducing the dower money from Tk.3,00,000/- (Three lac) to Tk.1,49,500/- (One lac forty nine thousand and five hundred) and thereby modifying the judgment and decree dated 06.04.2015 passed by the learned Judge, Family Court, Pangsha, Rajbari in decreeing the Family Suit No.43 of 2013 is hereby affirmed.

19.         Let the order of stay granted earlier by this Court at the time of issuance of the Rule stands vacated.

20.          However; there will be no order as to costs.

21.          Let a copy of the judgment along with the Lower Court’s Record be sent down at once.

 

         End of volume.



Civil Revision No. 1055 of 2016