District: Dhaka

In the Supreme Court of Bangladesh

High Court Division

(Civil Revisional Jurisdiction)

  Present

Mr. Justice Md. Zakir Hossain

Civil Revision No. 267 of 2023 Saima Haque

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

Md. Sharif Mahmud Apu

......Plaintiff-Respondent-Opposite Party

Ms. Fawzia Karim Firoz, Senior Advocate with Mr. Quazi Maruful Alam, Advocate

...... For the petitioner Mr. Jyotirmoy Barua, Advocate

....... For the opposite party

Heard on:14.11.2023 & 05.12.2023 Judgment on: 12.02.2024

At the instance of the petitioner, the Rule was issued by this Court with the following terms:

“Records of the case be called for

Let a Rule be issued calling upon the opposite

party to show cause as to why the judgment and

order dated 19.01.2023 passed by the learned

Senior District Judge, Dhaka in Family Appeal

No. 03 of 2023 dismissing the appeal summarily

and thereby affirming the judgment and decree

dated 24.11.2022 (decree being drawn on 27.11.2022) passed by the learned 3rd Additional

Assistant Judge and Judge of the Family Court,

Dhaka in Family Suit No. 740 of 2021 shall not be

set aside and/or such other or further order or

orders passed as to this Court may seem fit and proper.”

Facts leading to the issuance of the Rule are inter alia that the opposite party being plaintiff instituted Family Suit No. 759 of 2019 for the custody of the minor child Md. Sarim Sharif which was later on renumbered as Family Suit No. 08 of 2020 and thereafter, it was again renumbered as Family Suit No. 740 of 2021. The plaintiff’s case, in short, is that as per Islami Shariah, the marriage of the plaintiff and the defendant was solemnized on 25.01.2013 and the dower money was fixed as Tk. 10,00,001/-. From their wedlock, a son namely Md. Sarim Sharif was born on 31.05.2014. By a short span of time, their marital relation has been tainted due to many worldly affairs and eventually, the marital relation between the petitioner and the opposite party came to end. Thereafter, the opposite party filed the aforesaid suit for the custody of the minor child. The defendant (mother) also filed the Family Suit No. 441 of 2021 for the custody of the minor child. The defendant by filing written statement denied the material allegations set out in the plaint contending inter alia that after marriage, the plaintiff tortured her both physically and mentally and eventually, the marital relation has been come to end. Her further contention is that she is entitled to get the custody of the minor child and the minor child was handed over to the petitioner as per the order of the High Court Division passed in Writ Petition No. 9002 of 2018. The specific case of the defendant is that after divorce, the  plaintiff-father got married for the second time and the welfare of the minor child cannot be preserved in the custody of father, therefore, the mother can be appointed as guardian.

On the pleadings, the learned Judge of the Family Court framed the following issues:

1.                Is the suit maintainable in its present form?
2.             Is the plaintiff-father is entitled to custody of the minor son? After conclusion of the trial, the learned Judge of the Family

Court decreed the suit which was filed by the father and as such, gave the custody (hizanat) of the minor son to his father and thereby rejected the prayer of the mother to be custodian of the minor child but the learned Judge provided visiting right of the mother. Challenging the legality and propriety of the judgment and decree of the Family Court, the mother being appellant preferred Miscellaneous Appeal No. 03 of 2023 before the Court of the learned Senior District Judge, Dhaka. Upon hearing, the learned Judge of the Appellate Court was pleased to dismiss the appeal summarily. Impugning the judgment and decree of the Appellate Court, the petitioner moved this Court and obtained the aforesaid Rule.

Ms. Fawzia Karim Firoz, the learned Senior Advocate along with Mr. Quazi Maruful Alam, the learned Advocate for the petitioner submits that the learned Judge of the Family Court without considering the facts and circumstances of the case specially the welfare of the minor child most illegally decreed the suit of the opposite party and thereby appointed the opposite party as the guardian of the minor child and as such, committed an error of law occasioning failure of justice. She further submits that the concurrent findings of the Courts below are not based on sound reasoning rather perverse, therefore, the same is liable to be turned to secure the ends of justice. She finally submits that the mother has sacrificed her life for the minor child than  that of the opposite party-father who already remarried and from his 2nd marriage, two sons were born, therefore, the Courts below ought to have considered the welfare of the minor child in the custody of the of the mother than that of the father. In support of her submissions, she submits a plethora of cases reported in 17 BLC (AD) (2012) 77, 74 DLR (AD) (2022) 116, 10 BLT (HD) 327, 4 BLC (AD) (2008) & 38 DLR (AD) (1986) 106.    

Per contra, Mr. Jyotirmoy Barua, the learned Advocate for the opposite party submits that the learned Judge of the Family Court after considering the evidence on records came to the finding that the welfare of the minor child will be best served in the custody of the father than that of the mother and the learned Judge of the Appellate Court rightly concurred with the finding of the Family Court. He further submits that it is a settled principle of law that under the Muslim Law, the mother is entitled to custody or hizanat of her male child until the age of seven years and for female child, she has attained puberty or marriage. In this case, the male child almost attained 10 years and therefore, the father is the rightful custodian of the child and he further submits that the 2nd marriage of the father does not make him unfit to be the guardian and as

such, both the Courts below did not commit any error of law in their decisions occasioning failure of justice. He further submits that the mother losses her right of custody as she neglected to take proper care of the minor child and the negligence has been well proved, therefore, the concurred findings of the Courts below do not warrant for any interference. He further submits that due to the care of the father, the minor child got admitted into a reputed institution and by lapse of time, the child improved his educational, physical and psychological activities in the custody of his father and his immediate result shows that he secured better marks in the custody of his father. He finally submits that the welfare of the minor child will be best served in the custody of the father and therefore, the concurrent finding of the Courts below are immune from any interference. In support of his contention, he also relies on the cases reported in PLD 1963 (W.P) Lahore 534, 74 DLR (2022) 121.

Heard the submissions advanced by the learned Advocates of the petitioner and the opposite party at length and perused the materials on record thoroughly and also waded through the legal position of law critically embroiled in this case with great care and attention and seriousness as they deserve. 

The learned Judge of the Family Court held that the mother neglected to take proper care of the minor child. The relevant portion of the judgment and decree of the Trial Court is as follows:

Òweev x-gvZv KZ©…K Revbe›`x c«`vbKv‡j `vex Kiv nq bvevjK cyÎmšÍvb R‡b¥i mgq premature wn‡m‡e Rb¥jvf K‡ib| wKš`

weev`x KZ©…K `vwLjx wjwLZ Rev‡ei ‡Kv_vI GB `vex Kiv nq wb| D³ `vexi mg_©‡b weev`x-gvZv `vwjwjK ‡Kv‡bv c«gvYvw I

Dc¯’vcb Ki‡Z  m¶g nb wb| ‡m‡nZy  weev`xi GB `vex  AÎ Av`vj‡Zi mvg‡b Av‡`Š c«gvwYZ nqwb| ev`xc¶ KZ©…K hyw³ZK© ïbvbxKv‡j AviI `vex Kiv nq, bvevjK mšÍv‡bi eqm 5 eQi cvi

nevi c‡iI weev`x-gvZv wb‡Ri K¨vwiqv‡ii e¨¯ÍZvi Kvi‡Y Zv‡K

¯‹y‡j fwZ© Kivbwb Ges ‡mB welqwU Av`vj‡Zi mvg‡b avgvPvcv

‡`Iqvi D‡Ï‡k¨ weev`x-gvZv KZ©…K nVvr K‡iB premature

welqK `vex DÐvcb Kiv nq| AÎ Av`vjZ ev`xc‡¶i GB hyw³i

m‡½ mngZ ‡cvlY Ki‡Qb| ev`xc¶ KZ©…K Aci GK `vex‡Z ejv

nq, bvevjK GK mgq ¸iæZi Amy¯’ _vKvKvjxb ev`x Zv‡K j¨veGBW nvmcvZv‡j fwZ© K‡ib Ges weev`x‡K msev` ‡`b| ¯^xK…Zg‡Z weev`x msev` ‡c‡q Amy¯’ bvevjK‡K nvmcvZv‡j ‡`L‡Z ‡M‡jI nvmcvZv‡j Amy¯’ wkïwUi kh¨vcv‡k KLbI ivwÎhvcb K‡ibwb| hw`I weev`x `vex K‡ib ev`x KZ©…K m…ó bvbv c«wZK~jZvi Kvi‡Y weev`x nvmcvZv‡j ivwÎhvcb Ki‡Z cv‡ibwb,

wKš` wVK Kx c«wZK~jZv ev`x m…wó K‡iwQ‡jb Zv we¯ÍvwiZ e‡jbwb|

hw` Av`vjZ KZ©…K a‡iI ‡bqv nq ‡h wKQy c«wZK~jZv we`¨gvb wQj, Zvic‡iI GKRb gv‡qi Kv‡Q nvmcvZv‡j fwZ© Amy¯’ wkïmšÍv‡bi kh¨vcv‡k iv‡Z bv _vKvi welqwU ‡Kv‡bvfv‡eB M«nY‡hvM¨ bq| c«wZK~j cwi‡e‡k ‡h‡Kv‡bvg~‡j¨ mšÍvb‡K i¶v

KivB gv-evevi Pig vwqZ¡, hv weev x-gvZv cvj‡b P~ovšÍ fv‡e

e¨_© n‡q‡Qb e‡j AÎ Av`vjZ g‡b K‡ib| D³ mg‡q ¯^xK…Zg‡Z

ev`x I Zvui cwiev‡ii m`m¨iv cvjvµ‡g nvmcvZv‡j bvevj‡Ki

cv‡k Ae¯’vb K‡i‡Qb| weev`xc¶ KZ©…K hyw³ZK© ïbvbxKv‡j ev‡i ev‡i `vex Kiv nq bvevj‡Ki gv D”Pwkw¶Z ¯^vej¤^x bvix, whwb wb‡R ‡ckvq GKRb wk¶K Ges Zvjv‡Ki ci n‡Z A`¨ewa Avi

we‡q K‡ib wb Ges bvevj‡Ki Gevi g½jv‡_© Rxeb evwR ‡i‡L P‡j‡Qb| wKš` ¯^xK…Zg‡ZB bvevjK‡K AÎ weev`x Av`vj‡Zi AbygwZ e¨wZ‡i‡K wgicy‡ii GKwU AL¨vZ wKÛviMv‡W©‡b GK K¬vm wb‡P bvwg‡q fwZ© K‡i ‡`b| weev`xi G‡nb AvPiY ¯úóZtB bvevj‡Ki wk¶vweKv‡ki AšÍivq g‡g© c«Zxqgvb nq| cieZ©x‡Z Av`vj‡Zi Av‡`‡k bvevjK‡K ev`x exi‡k«ô b~i ‡gvnv¤§` ¯‹yj

A¨vÛ K‡j‡R fwZ© Kivb Ges GLb ch©šÍ bvevjK ‡mLv‡bB wk¶vM«nY Ki‡Q| weev`x KZ©…K `vex Kiv nq GUv ev xiB Kv÷wW

jv‡fi GKwU Ac‡KŠkj| c¶všÍ‡i ev`xc¶ `vex K‡ib, weev`x

‡Zv B”Qv Ki‡j wgicy‡i ‡h‡Kvb L¨vZbvgv wk¶vc«wZôv‡b bvevjK‡K Zvi Dchy³ K¬v‡m fwZ© Kiv‡Z cvi‡Zb| AÎ Av`vj‡Zi g‡Z, ‡m my‡hvM wZwb (weev`x/gvZv) ‡njvq nvwi‡q‡Qb| AZx‡Z weev`xi G‡nb A‡hŠw³K AvPi‡Yi Kvi‡Y

fwel¨‡Z bvevj‡Ki ¯‹yj wbe©vP‡bi ‡¶‡Î Zvu‡K (weev`x/gvZv)

Avi fimv Kiv m¤¢e bq e‡j AÎ Av`vjZ g‡b K‡ib| ZvQvov

bvevjK eZ©gv‡b ‡h wk¶vc«wZôv‡b co‡Q ‡mwU‡Z GBP.Gm.wm ch©šÍ Aa¨qb Kivi ch©vß my‡hvMmyweav i‡q‡Q| GgZve¯’vq, bvevj‡Ki wk¶vc«wZôvb cwieZ©b Kivi ‡Kv‡bv Avek¨KZv ‡bB

g‡g© Kij| bvevj‡Ki gvZv-weev`x AÎ Av`vjZ wm×všÍ M«nY

Kij|Ó

The Appellate Court considering the materials on record concurred with the judgment and decree of the Trial Court. Both the Courts below concurrently found that the welfare of the minor child will be best secured to the custody of the father. I have talked to minor child; Md. Sarim Sharif who is interested to reside with his mother but he does not appear to be intelligent enough to form his opinion. I have also perused the result of the minor boy at Beer Shrastha Noor Mohammad Public College issued by Beer Shrastha Noor Mohammad Public College Authority. The result of the minor demonstrates that he is doing well having obtaining grade- A+ in English Version.

It cannot be denied that a muslim father is the legal and natural guardian of a child until they attain the age of majority and the mother has the right of custody or hizanat up to the age of seven years even during this period, the right of custody or hizanat is to be exercised under the supervision and control of the father who is admittedly the legal guardian of the minor child. Considering the social, financial and educational position of the father and the mother as depicted in the pleadings of the parties and evidence on record in juxtaposition, I am of the view that the welfare and best interest of the minor child will be protected in the custody of the father than that of the mother.

Having considering the facts and circumstances of the case, I do not find any reason to interfere with the concurrent findings of the Court below so far it relates to custody of minor son, therefore, the penultimate decision of the Court below is immune from any interference. But the mother’s right to visit her minor son cannot be ignored and it should be reasonable and it will continue till minor attaining 18 years i.e. since he becomes sui juris. The Family Court held to the effect:

Òweev`x (gvZv) c«wZ mßv‡n ïµevi mKvj 10.00 NwUKv n‡Z ivZ 08.00 NwUKv ch©šÍ bvevjK‡K wbR wR¤§vq ivL‡Z cvi‡ebÓ

The visiting right of the mother decided by the Family Court to be modified by this Court to the effect:

ÒcÖwZ ïµevi weKvj cvuP NwUKvq wcZv ev Zvi cÖwZwbwa wbR cwienb‡hv‡M bvevjK wkï ‡gvt mvixg kixd‡K Zvui gv‡qi evmm¯’v‡b ‡cuŠwQ‡q w`‡eb Ges kwbevi weKvj cuvP NwUKvq wcZv ev wcZvi g‡bvbxZ e¨w³ wkï †gvt mvixg kixd‡K gv‡qi Kv‡÷vwW †_‡K wb‡q Avm‡eb|

wkï wkï †gvt mvixg kixd C -Dj -wdZi gv‡qi mv‡_ D hvcb Ki‡e Ges C -Dj -Avhnv evevi mv‡_ D hvcb Ki‡e|Ó 

With the above observation and direction, the Rule is disposed of; however, without passing any order as to costs.

Let a copy of the judgment along with LCRs be transmitted to the Court below at once for taking necessary step.

...............................................

Md. Zakir Hossain, J

Naser Po