IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Moinul Islam Chowdhury

CIVIL REVISION NO. 4463 OF 2014

IN THE MATTER OF:

An  application  under  section  115(1)  of  the Code of Civil Procedure.

-And-

IN THE MATTER OF:

Md. Ismail Hossain

--- Defendant-Appellant-Petitioner. -Versus-

Bibi Khodeza and another

---Plaintiff-Respondent-Opposite Parties.

Mr. Nur Mohammad Talukder, Advocate

--- For the Defendant-Appellant-Petitioner. Mr. Mohd. Abdul Momin, Advocate

---For the Plaintiff-Res.-Opposite Parties.

Heard on: 19.07.2023 and 29.08.2023. Judgment on: 29.08.2023.

At  the  instance  of  the  present  defendant-appellant- petitioner,  Md.  Ismail  Hossain,  this  Rule  was  issued  upon  a revisional application filed under section 115(1) of the Code of Civil Procedure calling upon the opposite party to show cause as to why the impugned judgment and decree complained of in the petition moved in court should not be set aside.

The relevant and important facts for disposal of this Rule, inter-alia, are that the present opposite party No. 1, namely, Bibi

Khodeza as the plaintiff filed the Family Suit No. 33 of 2011 for realization of dower money and maintenance in the court of the learned  Senior  Assistant  Judge,  Family  Court,  Begumgonj, Noakhali. The plaint contains that the plaintiff No. 1 and the defendant got married by solemnizing Kabinnama on 12.02.2009 and Tk. 3,50,000/- (three lac fifty thousand) was fixed as dower. During  their  wedlock  plaintiff  No.  2  was  born.  During  their marriage,  they  started  living  in  their  matrimonial  home  and sometimes  the  defendant  tortured  plaintiff  No.  1  (wife)  for demanding  a  dowry  of  Tk.  1,00,000/-  (one  lac)  which  was refused by plaintiff No. 1. The defendant contested the suit by filing a written statement contending, inter alia, that the plaintiff No. 1 and the defendant got married on 12.02.2009 by fixing dower money at Tk. 1,50,000/- (one lac fifty thousand) which was subsequently shown to have been fixed as dower money at Tk. 3,50,000/- (three lac fifty thousand) by forgery, thereafter, plaintiff  No.  1  left  the  matrimonial  home  and  the  defendant divorced plaintiff No. 1 on 27.02.2011.

The  learned  Senior  Assistant  Judge,  Family  Court, Begumgonj, Noakhali heard both the parties who adduced and produced their documents in support of their respective cases and the  learned  Judge  of  Family  Court,  Begumgonj,  Noakhali decreed the suit on 31.03.2013 by directing the defendant to pay at Tk. 1,50,000/- + 1,85,000/- = 3,35,000/- (Taka Three Lac and Thirty-Five Thousand) to the plaintiff No. 1 within 30 (thirty) days. Being aggrieved the defendant preferred a Family Appeal No. 12(A) of 2013 in the court of the learned District Judge, Noakhali who affirmed the judgment of the learned trial court by his judgment and decree dated 19.06.2014.

Mr.  Nur  Mohammad  Talukder,  the  learned  Advocate, appearing for the petitioner submits that the petitioner divorced the opposite party No. 1 on 27.02.2011 by way of affidavit which has been admitted by the Plaintiff-Witness No. 1 (wife) and PW. 2 in their depositions. As such, both the courts below committed an error of law by misreading and non-considering the fact of divorce, nevertheless, the courts below decreed maintenance for plaintiff No. 1 as a wife, as such, this Rule should be made absolute.

The  Rule  has  been  opposed  by  the  present  plaintiff- opposite parties.

Mr.  Mohd.  Abdul  Momin,  the  learned  Advocate, appearing  on  behalf  of  the  opposite  parties  submits  that  on 12.02.2009 plaintiff No. 1 and defendant No. 1 got married but the  present  defendant-appellant-petitioner  failed  to  prove  the claim of divorce of the Muslim Marriage and Divorce Ordinance, as  such,  the  defendant-petitioner  could  not  adduce  sufficient documents as to the divorce, therefore, both the courts below concurrently found that the plaintiff No. 1 successfully proved her case. The decision of the courts below by concurrent findings over  the  points  no  error  of  law  in  passing  the  impugned judgment, as such, the courts below concurrently decreed the suit by awarding to the defendant to pay  at Tk. 3,35,000/- (Taka Three Lac and Thirty-Five Thousand) within 3 (three) months as of the date of the decree passed, thus, the Rule was obtained by the  petitioner  by  misleading  the  court  which  is  liable  to  be discharged.

Considering the above submissions made by the learned Advocates appearing on behalf of the respective parties and also considering  the  revisional  application  filed  by  the  present defendant-appellant-petitioner under section 115(1) of the Code of  Civil  Procedure  along  with  the  annexures  therein,  in particular,  the  impugned  judgment  and  decree  passed  by  the learned appellate court below disallowing the appeal and thereby affirming the judgment and order of the learned trial court, it appears to me that the present defendant-appellant-petitioner and the plaintiff No. 1 got married on 12.02.2009 and during their wedlock a daughter was born. Accordingly, the learned appellate court below affirmed the judgment and decree of the learned trial court  by  awarding  in  total  at  Tk.  1,50,000/-  +  1,85,000/-  = 3,35,000/- (Taka Three Lac and Thirty-Five Thousand) as dower and maintenance to the plaintiff No. 1 within 3 (three) months for maintenance of the plaintiff opposite party No. 2 (daughter child).

It also appears to me that the defendant is also directed to pay Tk. 5000/- (five thousand) per month for plaintiff No. 1 until the  continuance  of  the  marital  tie  and  Tk.  2,000/-  (Tk.  Two Thousand) per month for plaintiff No. 2 until her marriage or until the defendant lawfully takes the custody of the plaintiff whichever is earlier from April 2013 before the expiry of the first week of every next month for the future maintenance of the plaintiffs.

In view of the above discussions as to the fact and law involved  in  this  Rule,  I  am  of  the  opinion  that  the  learned appellate court below committed no error of law and there is no

misreading as to the claim of divorce by the present defendant- petitioner  because  there  is  no  required  procedure  which  was followed in the case of divorce by affirming the judgment and decree of the learned trial court.

However, the learned Advocate for the petitioner claimed that the defendant-petitioner is a poor person he will not pay the said amount instantly, as such, he would get the schedules of payment in installments.

Accordingly, I do not find merit in the Rule.

In the result, the Rule is hereby discharged.

In view of the above submission of the learned Advocate for the defendant-petitioner, the decretal amount cannot be an excuse as to the commit no error of law. However, considering the  capability  to  pay  the  decretal  amount  in  the  following manner:

The defendant is hereby directed to pay the total amount of  the  remaining  decretal  money  within  6  (six)  months  in monthly 6 (six) equal installments.

The defendant is hereby also directed to pay the decretal amount  within  6  (six)  months  in  6  (six)  installments  in  the Family Execution Case No. 19 of 2013 which is pending in the court  of  the  learned  Senior  Assistant  Judge,  Family  Court, Begumgonj, Noakhali in failure to pay the amount as per the above direction the plaintiff- opposite party No. 1 shall continue with the execution case.

The  learned  Senior  Assistant  Judge  of  Family  Court, Begumgonj, Noakhali is hereby directed to stay the proceeding of the execution case, only if, the defendant-petitioner fails to pay any installments within the above 6 (six) months from the date of receipt of this judgment and order.

The interim order passed at the time of issuance of the Rule staying the operation of the impugned judgment and decree dated 19.06.2014 is hereby recalled and vacated.

The concerned section of this court is hereby directed to communicate  this  judgment  and  order  to  the  learned  courts below immediately.