Shahid Hamid Vs. Nilufar Momtaz, 14 MLR (AD) (2009) 33

Case No: Civil Petition for Leave to Appeal No.1357 of 2008

Judge: M. M. Ruhul Amin ,

Court: Appellate Division ,,

Advocate: Mrs. Sufia Khatun,Mr. Chowdhury Md. Zahangir,,

Citation: 14 MLR (AD) (2009) 33

Case Year: 2009

Appellant: Shahid Hamid

Respondent: Nilufar Momtaz

Subject: Family Law,

Delivery Date: 2008-10-14

Supreme Court
Appellate Division
M.M. Ruhul Amin CJ
Md.Tafazzul Islam J
Md. Joynul Abedin J
Md. Abdul Matin J
Shahid Hamid
Nilufar Momtaz
October 14, 2008.
Family Court Ordinance, 1985
Section 5
When the marriage is admittedly dissolved by talak at the instance of the husband, the wife is legally entitled to realize the dower money as stipulated in the kabinnama and also maintenance during the period of her iddat. The husband having failed to prove the payment of dower by any cogent evidence the Family Court decreed the suit which has been upheld consistently upto the apex court by concurrent findings.
Lawyers Involved:
Mrs. Sufia Khatun, Advocate-on-Record-For the Petitioner.
Chowdhury Md. Zahangir, Advocate-on-Record- For the Respondent.
Civil Petition for Leave to Appeal No.1357 of 2008.
(From the Judgment and Order dated 1st June, 2008 passed by the High Court Division in Civil Order No.2080 of 2008.)
M.M. Ruhul Amin CJ.
1. This petition for leave to appeal is directed against the judgment and order dated 1st June, 2008 passed by the High Court Division in Civil Order No. 2080 of 2008 summarily rejecting the application.
2. Short facts are that the opposite party of this application as plaintiff instituted Family Suit No. 185 of 2006 in the Court of 2nd Assistant Judge and Family Court, Dhaka for realization of dower and maintenance contending inter alia, that marriage was solemnized between her and the petitioner on 19.2.1999 and they started living together. Dower was fixed at Tk. 5,00,001/- and that the marriage was registered by a kabinnama dated 19.9.1999. It was her case that the 19.9.1999. It was her case that the petitioner ousted her from his mess and she lodged a G.D. Entry with Kafrul Police Station to that effect and it was her further case that since 2005 she had not been given any maintenance and that while she was living alone she received a registered talaknama on 19.3.2006. Following talaque a proceeding was started before the City Corporation, Dhaka and the marriage tie ended on 22.5.2006. Thereafter she instituted a suit for realization of dower and maintenance for Tk. 5,00,000/-.
3. The defendant contested the suit contending inter alia, that the dower has already been paid and that thereafter he has sent a divorce letter and that the divorce vas ultimately effected upon starting a proceeding by the concerned City Corporation.
4. We have heard Mrs. Sufia Khatun, the learned Advocate-on-Record for the petitioner and Chowdhury Md. Zahangir, the learned Advocate-on-Record for the respondent and perused the judgment of the High Court Division and other connected papers on record.
5. The vital question for consideration in the case was whether payment of dower was made by the defendant husband to the plaintiff wife.
6. The High Court Division on consideration of the materials on record held as under: 
"Save and except that submission made by the learned Advocate there is no other evidence to show that the payment of dower was made by the defendant. The Family Court below discussed the evidences of both the parties side by side and has come to the finding that no dower was paid by the defendant in favour of the plaintiff and decreed the suit. The payment of dower is a question of fact and the Courts below decided the issue in favour of the plaintiff that no dower money was paid by the defendant. That finding is concurrent and based on evidence". 
7. The High Court Division further held that since the Courts below by concurrent findings on the question of fact concluded that the husband could not prove that he made payment of dower to the wife and the finding is based on evidence.
8. In the above facts and circumstances of the case, we are of the view that the learned Counsel for the petitioner could not point out any error of law or infirmity in the decision of the High Court Division.
Accordingly, the petition is dismissed.