Sree Jibon Sharma Vs. Sreemoti Subasini Sharma and another, 15 MLR (AD) (2010) 167

Case No: Civil Petition for Leave to Appeal No. 2207 of 2009

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Md. Khurshid Alam Khan,,

Citation: 15 MLR (AD) (2010) 167

Case Year: 2010

Appellant: Sree Jibon Sharma

Respondent: Sreemoti Subasini Sharma

Subject: Family Law,

Delivery Date: 2010-2-23

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Mohammad Fazlul Karim, CJ.
Bijan Kumar Das, J.
ABM Khairul Haque, J.
 
Sree Jibon Sharma
.....................Petitioner
Vs.
Sreemoti Subasini Sharma and another
 ....................Respondents
 
Judgment
February 23, 2010
 
Family Courts Ordinance, 1985
Section 5
Family court is vested with exclusive jurisdiction to decide the suit for maintenance.
Section 3
Makes the Family Court Ordinance, 1985 applicable all citizens of Bangladesh irrespective of their faith.
 
Lawyers Involved:
Md. Khurshid Alam Khan, Advocate instructed by Md. Zahirul Islam, Advocate-on-Record- For the Petitioner.
Not represented- the Respondents.
 
Civil Petition for Leave to Appeal No. 2207 of 2009.
(From the judgment and order dated the 19th day of July, 2009 passed by the High Court Division in Civil Revision No. 733 of 2006).
 
JUDGMENT
Mohammad Fazlul Karim J.
 
1. This Petition for Leave to Appeal is directed against the judgment and order dated the 19th day of July, 2009 passed by the High Court Division in Civil Revision No.733 of 2006 discharging the Rule and affirming those dated 23.11.2005 passed by the District Judge, Jamalpur in Family Appeal No.18 of 2005 dismissing the appeal affirming those dated 20.08.2005 passed by the Assistant Judge, Family Court, Islampur, Jamalpur decreeing the suit against the petitioner on contest in Family Case No.41 of 1999.
 
2. The facts involved in the case, in short, are that the plaintiff No.1 was given in marriage with defendant and out of their wedlock the plaintiff No.2 was born. Few days after the birth of plaintiff No.2 the defendant stopped the maintenance of the plaintiffs and married second time violating the customs of Hindu religion. A salish was held over the matter but the same was ended without any result. Then the plaintiffs filed the Family Suit for maintenance according to the provisions of Family Courts Ordinance, 1985.
 
3. The defendant contested the suit by filing written statement denying all the material allegations contending that the suit was not maintainable, it was barred by limitation and also barred by the provisions of waiver, estoppels and acquiescence.  He stated that he was forced to marry the plaintiff No.1 on 21.02.1992. But on 22.02.1992 she left the house of defendant. He denied the story of marriage and also stated that the plaintiff No.2 is not his son. So, the suit is liable to be dismissed.
 
4. Mr. Md.  Khurshid Alam Khan, learned Advocate, appearing for the petitioner submitted that in the case of the Mohammedan Law the decision of the past maintenance is applicable. The provision of the past maintenance is applicable only for the Muslim ladies. But in respect of Hindu ladies there is no such provision for granting past maintenance and as such, the decisions of the High Court Division and the Courts below is an error in the impugned decision which cannot be sustained in the eye of law. The learned Advocate further submitted that from Section 5 of the Family Courts Ordinance, 1985 it appears that there is no provision for past maintenance but there is a provision of maintenance in the said Ordinance and the maintenance can be available to the wife so long she resides with the domain of the husband and up to certain period after the divorce. There is no provision for divorce in the Hindu marriage and as such, the question of past maintenance does not arise at all. The learned Advocate also submitted that the Courts of Appeal below committed serious illegality in dismissing the appeal with a compensatory cost of TK. 4,000.00 (four thousand) which is not applicable in respect of the family cases because it is a special law. But in the present case, the Court of Appeal below has no jurisdiction to grant compensatory cost. The High Court Division affirmed the said judgment without assigning any reason and as such, the High Court Division's judgment is hit by want of jurisdiction.
 
5. The High Court Division observed that after coming into force of Family Courts Ordinance five subjects enumerated therein are made exclusively triable by the Family Courts and Section 3 of the said Ordinance made it available to all citizens irrespective of their faith. From the argument of Mr. Khan it appears that the instant suit was filed on 01.11.1999. The plaintiff prayed for maintenance of plaintiff No. 1 from 03.05.1998 which was decreed by the Trial Court. It further appears that the Trial Court decreed the suit for a sum of TK. 86,000.00 against maintenance of the plaintiff No.1 from 03.05.1998 and also allowed maintenance at the rate of TK. 1000.00 per month from the date of decree. The trial Court decreed for TK. 25,000.00 in favour of the plaintiff No. 2 and TK.500.00 per month from the date of the decree. The trial Court directed the defendant to pay TK. 86,000.00 and TK. 25,500.00 within 60 days from the date of the decree.
 
6. In view of the above, we find no substance in the submissions of the learned Counsel for the petitioner.
 
7. Accordingly, the petition is dismissed.
 
Ed.