IN THE SUPREME COURT OF BANGLADESH HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Md. Bashir Ullah

 Civil Revision No. 4775 of 2011

         In the matter of:

An application under Section 115(1) of the Code   of Civil Procedure, 1908

And

In the matter of:

Md. Mofizar Rahman

    ---Defendant-Appellant- Petitioner.

-Versus-

Most. Mahfuza Akhter

---Plaintiff-Respondent-Opposite party.

                            Mr. Md. Jahangir Alam, Advocate

                   ----For the petitioner. None appeared

         ----For the opposite party.

Heard and Judgment on 18.01.2024 

At the instance of the defendant-appellant, this Rule was issued  calling upon the opposite party No.1 to show cause as to why the order dated 18.04.2011 passed by the learned District Judge, Magura in Family Appeal No. 04 of 2009 dismissing the appeal summarily and thereby affirming the judgment and decree dated 04.11.2001 passed by the learned Senior Assistant Judge, Magura Sadar, Magura and Family Court in Family Suit No. 12 of 2001 decreeing the suit should not be set aside and/or pass such other order or further order or orders as to this Court may seem fit and proper.

 The facts necessary for the disposal of the Rule, in short are:

The present opposite party as plaintiff instituted Family Suit No. 12 of 2001 before the Assistant Judge, Family Court, Magura against the present petitioner claiming her dower and maintenance stating inter alia that the defendant got married to her on 12.04.1985 fixing a dower money to the tune of Tk.15,000/-. Out of their wedlock, two daughters were born. Subsequently, the defendant went to South Korea for service and started ignoring her and their daughters. The plaintiff did not provide any maintenance, for herself or her minor daughters which compelled her to file the family suit, claiming dower and maintenance.

On the other hand, the defendant contested the suit by filing a written statement denying all material averments made in the plaint. It has been stated that he could not pay for dower and maintenance due to his poverty and finally he prayed for dismissal of the suit. Upon hearing the parties the family Court decreed the suit on 04.11.2001 on contest against the defendant. Thereafter the plaintiff as decree-holder filed Family Execution Case No. 10 of 2003 before the Assistant Judge and Family Court, Magura. The defendant as judgment debtor filed written objection. Upon hearing, the Executing Court rejected the objection filed by the defendant on 09.02.2009, directing the defendant-decree debtor to pay the decretal amount.

 The defendant preferred Family Appeal No. 4 of 2009 before the District Judge, Magura against the Judgment and order dated 04.11.2001, passed by the Senior Assistant Judge, Magura Sadar, Magura decreeing the suit after a long delay. The District Judge, Magura upon hearing the parties dismissed the appeal summarily on the ground that the appellant failed to put his signature in the memorandum of appeal. 

Being aggrieved by the said order, the defendant as appellant- petitioner filed this Civil Revision and obtained the Rule.

Mr. Md. Jahangir Alam, learned Advocate appearing on behalf of the petitioner submits that the learned District Judge, Magura failed to appreciate the case of the appellant. The learned District Judge ought to have given an opportunity to the appellant to put his signature on the memorandum of appeal, but the learned Judge failed to consider the same committed error of law, resulting in an error that occasioned a failure of justice. 

He further submits that there was no fault of the appellant because he was not aware of the legal obligation to put his signature, which was a bonafide mistake but the learned Court did not apply his judicial mind to that effect and thus committed an error of law that occasioned a failure of justice and prayed for making the rule absolute.

None appeared for the opposite party to contest the rule.  

I have heard the learned Advocate for the petitioner, perused the judgments and orders of the Courts below, the revisional application and all other connected materials on

record.

 The record shows that the opposite party as plaintiff filed

Family Case No. 12 of 2001 for dower and maintenance. It is also

admitted that the marriage between the plaintiff and the

defendant was solemnized on 12.04.1985, fixing the dower at Tk.15,000/-(Fifteen thousand). The marriage was consummated

and out of the wedlock two daughters were born.

It is also admitted that the defendant went to South Korea

for service and failed to maintain the plaintiff and his two

children, which compelled the plaintiff to claim dower and

maintenance for herself and her offspring. 

Upon hearing the trial Court decreed the suit on 04.11.2001

and as the defendant did not come forward to pay the decretal 

amount, the plaintiff filed Execution Case No.10 of 2003.

Against that the defendant as Judgment debtor filed a written

objection. The Execution Court ultimately fixed on 09.2.2009 for

hearing the written objection and upon hearing both parties, the

Execution Court passed the following order:

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Bc¡m−a c¡¢M−ml SeÉ ¢e−cÑn fËc¡e Ll¡ qCmz'' After a long delay, the defendant as appellant  preferred

Family Appeal No. 4 of 2009 before the District Judge, Magura

against the Judgment and decree order dated 04.11.2001 passed

by the Assistant Judge, Magura Sadar, Magura without putting

his signature on the memorandum of appeal and the District

Judge, Magura then dismissed the appeal summarily. The said

order is as follows:

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B¢fmÉ¡−¾Vl ü¡rl e¡ b¡L¡u Eš² œ¤¢V S¢ea L¡l−Z Aœ

B¢fm¢V öe¡e£l SeÉ NËqZ L¢l−a ANË¡qÉ Ll¡ qCmz'' Section 17 of the Family Courts Ordinance 1985 is quoted

below for better understanding:

Appeal-(1) Subject to the provisions of sub-

section (2), an appeal shall lie from a

judgment, decree or order of a Family Court

to the Court of District Judge.

2.     No appeal shall lie from a decree passed

by a Family Court-

1.   for dissolution of marriage, except in the case of dissolution for reasons specified in section 2(viii)(d) of the Dissolution of Muslim Marriages Act, 1939;
2. for dower not exceeding five thousand taka.

3.     An appeal under this section shall be preferred within thirty days of the passing of the judgment, decree or order excluding the time required for obtaining copies thereof: Provided that the Court of District Judge may, for sufficient cause, extend the said period.
4.     An appeal shall-

1. be in writing;
2. set out the grounds on which the appellant seeks to challenge the judgment, decree or order;
3. contain the names, descriptions and addresses of the parties; and
4. bear the signature of the appellant.

         (emphasized)

5.   A certified copy of the judgment, decree or order of the Court from which the appeal is preferred shall be attached to the appeal.

6. Any order passed by the Court of District Judge shall, as soon as may be, be communicated to the Family Court which shall modify or amend the judgment, decree or order accordingly and shall also make necessary entries to that effect in the appropriate column in the register of decrees.
7. The District Judge may transfer an appeal to the Court of an Additional District Judge or a Subordinate Judge for hearing and disposal and may withdraw any such appeal from such Court.                               

It is a well settled principle that once marriage is solemnized between a man and a woman and consummation takes place between them, it becomes the husband’s responsibility to maintain his wife and children, if there are any, under their wedlock. Thus the defendant-appellant-husband is under an obligation to pay dower money and maintenance to her wife and offspring.

It seems that the defendant-appellant-petitioner is delaying in making the payment of the decretal amount to the plaintiff- respondent-opposite parties who have been passing miserable lives though the plaintiff is entitled to dower and maintenance so does of her two daughters in accordance with law.

In the given discussion and observation, I do not find any merit or force in the submission so advanced by the learned Advocate for the defendant-appellant-petitioner. Furthermore, there is no merit in the Rule which is liable to be discharged.

 In the result, the Rule is discharged, however without any order as to cost.  

Communicate the copy of the judgment to the concerned Court forthwith.

(Justice Md. Bashir Ullah)

Aziz/abo