Act/Law wise: Judgment of Supreme Court of Bangladesh

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Mahomedan Law/ Muslim Law/ Principles of Mohammedan Law
Section/Order/Article/Rule/Regulation Head Note
Article 117

Where a Mahomedan bequeaths less than one-third of his property to a person, such bequest is valid under Mahomedan law–
Mahomedan Law is concerned, a testator may lawfully transfer ⅓ of his property to any person (third party), other than his heirs. Any transfer in excess of ⅓ would not be valid unless the heirs consented after the death of the testator. “A bequest to an heir is not valid unless the other heirs also consent to the bequest after the death of the testator.” It would appear, therefore, that the consistent view is that transfer of any quantum of property to an heir requires the consent of the other heirs after the death of the testator. In the case before us the bequest being in favour of heirs of the testator can only be valid if the other heirs consent. In the facts of the instant case there does not appear to be consent by other heirs and, therefore, the deed in question cannot be a valid deed of transfer. .....Noorjahan Begum =VS= Aminul Huq, (Civil), 2018 (2) [5 LM (AD) 20] ....View Full Judgment

Section 156

Mohammedan Law, Wakfs
Section - 156 (D.F. MuIIa) Wakf by immemorial user Held; though the previous Khatian of the land was recorded to be "Peer's Dargabari" but the land at present appears to be nal land duly cultivated by the plaintiff. The nature and character of the suit land having been changed and the Government also treated the same as cultivable land and considering the true state of affairs leased out the same to the plaintiff on permanent basis. - There is no substance in this application for interference with the impugned judgment. Md. Nafaruddin Mollah Vs. Md, Serajuddin Khan & Ors 20 BLT (AD) 143 ....View Full Judgment

Section 164

Merely because even the preemptor failed to prove mutation of her name in respect of ˙09 acre land, title passed by the deed of gift could not be said to have been lost.
The Appellate Division held that the trial Court also took the erroneous view that the preemptor could not prove that by virtue of the deed of heba, she mutated her name, but failed to consider that merely because even the preemptor failed to prove mutation of her name in respect of ˙09 acre land, title passed by the deed of gift could not be said to have been lost and the Appellate Court rightly found that the trial Court in rejecting the application for preemption made some irrelevant comments.
Mosammat Farida Begum -Vs.-Mohd. Nurul Alam (Civil) 13 ALR (AD) 170-173 ....View Full Judgment

Mohamedan Law of Bequest–
Bequest by a Mohamedan to his heir of any quantum of property requires the consent of his other heirs after his death to be valid. But a bequest by a Mohamedan to any stranger (other than his heir) upto one-third of the surplus of his property which remains after payment of his funeral expenses and debts is valid and does not require consent of the heirs of the testator. Bequest to a stranger over and above one-third of the property of the testator which remains after payment of funeral expenses and debts of the testator requires the consent of the heirs of the testator after his death to be valid. .....Rabeya Khatoon(Most.) =VS= Jahanara alias Shefali Bewa, (Civil), 2018 (1) [4 LM (AD) 298] ....View Full Judgment

Sections 342 to 344

Legitimacy of a child—Whether acknowledgement by father without proof of any valid marriage between the father and mother of such child is sufficient to establish legitimacy?— Where paternity of a child is unknown, the law presumes him to be the child of the acknowledger—But acknowledgment will not establish legitimacy if it is found that the child is an offspring of Zina or of another person—If the defendant failed to prove the marriage of his mother that will not create an impediment to the acknowledgment itself—Since the’ plaintiff did not take up the plea that the marriage could not have been possible, it being within the prohibitory degree or offspring of Zina—The force of logic therefore upholds the contention of the defendant for the doctrine of acknowledgement to dome into play—Defendant proved acknowledgment by the father—The plaintiff failed to establish that there was no marriage between the father and mother of the defendant—Therefore acknowledgement is sufficient to establish paternity of the defendant. [Majority per B.H. Chowdhury, J (Munim, CJ and Masud, J, concurring]
Valid marriage between the parents is the essential precondition of legitimacy—If such a marriage is disproved, no amount of acknowledgement shall make the child legitimate it must be borne in mind that acknowledgement’ in Mohammadan Law is no substitute for adoption in Hindu Law or Roman Law—under the Mohammadan Law relationship by consanguinity is prerequisite for legitimacy and the latter is dependent upon’ a valid marriage of the parents—If Amir Au had acknowledged the defendant as his son, then he knew better who was defendant’s mother but that woman not being any of his three wives, the defendant is not his legitimate son——The learned Single Judge is found to have rightly refused interference with the findings of the Court below which stand on a solid basis.. Khorshed Alam alias Shah Alam Vs. Amir Sultan Ali Hyder and another, 5 BLD (AD) 121 ....View Full Judgment

Mohammedan Law
Acknowledgement–Witnesses are partisan witnesses totally unworthy of credit–Onus to prove that defendant I (Khorshed Alam) is the son of a prostitute Baramoni, is on the plaintiff, but he could not discharge it. Khorshed Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133. ....View Full Judgment

Mohammedan Law
Acknowledgement–Onus of proof­–Status of an individual–When it is assailed much higher degree of proof necessary–All courts below overlooked this point– Trial Court ought not to have allowed such question to be led in ­Entire plaintiff's evidence on this point should have been discarded–Presumption of law on the point not rebutted–Plaintiff having failed to prove that defendant J was the son of Baramoni his suit to be dismissed. Khorshed Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133. ....View Full Judgment

Mohammedan Law
Acknowledgement by a man of a child– ­Case-law on the subject. Khorshed Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133. ....View Full Judgment

Mohammedan Law
–When acknowledgement established­–Onus to rebut in the person who denies marriage. Khorshed Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133. ....View Full Judgment

Mohammedan Law
–Legitimacy– For legitimacy valid marriage is essential. Khorshed Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133. ....View Full Judgment

Mohammedan Law
–When illegitimacy is proved beyond doubt, by reason of the marriage of his parents being either disproved, etc. cannot be legitimatised by acknowledgement. Khorshed Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133. ....View Full Judgment

Mohammedan Law
–A concubine giving birth to a son– Such son cannot be legitimate son. Khorshed Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133. ....View Full Judgment

Mohammedan Law
–Under Mohammedan Law, "a person to be legitimate son of another person must be the offspring of a marriage between his mother and his alleged father and that any other offspring is the offspring of Zina, that is, illicit connection and cannot be legitimate". Khorshed Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133. ....View Full Judgment

Mohammedan Law
–Acknowledgement– Subsequent disowning the acknowledgement, of no legal effect. Khorshed Alam vs Amir Sultan Ali Hyder 38 DLR (AD) 133. ....View Full Judgment

Mohammedan Law Hizanat (Custody of Infant)
Right of mother to custody of infant children–
The mother is entitled to the custody (hizanat) of her male child until he has completed the age of seven years and of her female child until she has attained puberty. The right continues though she is divorced by the father of the child unless she marries a second husband in which case the custody belongs to the father–Right of father and paternal male relations to custody of boy over seven and girl who has attained puberty–The father is entitled to the custody of a boy over seven years of age and of an unmarried girl who has attained puberty. Failing the father, the custody belongs to the paternal relations in the order given in section 355 above, and subject to the proviso of that section–If there be none of these, it is for the Court to appoint a guardian of the person of the minor." Mullah's Principles of Muhammedan Law. Md Abu Bakar Siddiqui vs SMA Bakar 38 DLR (AD) 106. ....View Full Judgment

Mohammedan Law Hizanat (Custody of Infant)
– Question regarding hizanat (custody) of a minor boy or daughter not solely dependant on his or her age but the consideration is the welfare of the minor and this has assumed to be the determining factor even though the opinion of well–known Muhammedan jurists may not be followed. Md Abu Bakar Siddiqui vs SMA Bakar 38 DLR (AD) 106. ....View Full Judgment

Mohammedan Law Hizanat (Custody of Infant)
–No uniform law obtains in the Muslim world–Difference amongst the principal jurists. Departure is permissible. Md Abu Bakar Siddiqui vs SMA Bakar 38 DLR (AD) 106. ....View Full Judgment

Mohammedan Law Hizanat (Custody of Infant)
–Hidayah and Fatawa-Alamgiri are the standard authorities in Hanafi Branch of Sunni Law. Md Abu Bakar Siddiqui vs SMA Bakar 38 DLR (AD) 106. ....View Full Judgment

Mohammedan Law Hizanat (Custody of Infant)
–Rule about hizanat propounded in the Hanafi law in permissible circumstances, can be departed from on consideration of minor's welfare. Md Abu Bakar Siddiqui vs SMA Bakar 38 DLR (AD) 106. ....View Full Judgment

Mohammedan Law Hizanat (Custody of Infant)
–In matters of personal laws in Bangladesh Sunni Muslims are governed by Hanafi School of law. Md Abu Bakar Siddiqui vs SMA Bakar 38 DLR (AD) 106. ....View Full Judgment

Mohammedan Law Hizanat (Custody of Infant)
–Mother preferred to be the guardian of the minor. Md Abu Bakar Siddiqui vs SMA Bakar 38 DLR (AD) 106. ....View Full Judgment

Mohammedan Law
There may not be presumption of jointness of family in the Muslim Law, but the fact has been established that after the death of Faizuddin Sheikh, father of the plaintiffs and defendant No.l, the members of Faiz-uddin's family were in one mess and the income of the property left by Faizuddin was in the common fund of the plaintiffs and the defendant No.l and in the background of the said fact the lower appellate Court observed that by the money of the joint fund of the plaintiffs and the defendant No.l the auction purchase was made. It was not established that the defendant No.2 had any independent source of income. Daliluddin Sheikh vs Alek Sheikh 14 BLC (AD) 32. ....View Full Judgment

Mohammedan Law on Marriage
Whether non-registration of the marriage under Mohammedan Law makes the marriage illegal or irregular or non-existent
A doctrine of Muslim Marriage - Held; The recognized custom of all sects are that a marriage is solemnized by a person conversant with the requirements of the law who is designated for the occasion, the Kazi. Two other persons, formally appointed for the purpose, act on behalf of the contracting parties, and the terms are usually embodied in a deed of marriage called 'Kabin-nama'. Under the Sunni law what is required more is that a declaration should precede the acceptance, in order to demonstrate conclusively the intention of the parties. A marriage contracted without witnesses is invalid. But a marriage contracted at a place where compliance with it is impracticable, the marriage would not be void on that ground. Where it is possible to obtain testimony, and the ceremony of marriage has gone through without the presence of witnesses to attest its performance, it may be declared to be invalid. The condition of testimony, therefore, is not so essential that it can not be dispensed with. Once the marriage is consummated and the parties have cohabited, the contractual defect is removed; and the marriage is declared to be legitimate. Mst. Momtaz Begum Vs. Anowar Hossain 20 BLT (AD) 143 ....View Full Judgment

Muslim Law
The donor executed a deed of ‘Arpannama by making a provision for the donee. Thereby for enjoyment of usufruct of the land gifted but prohibiting any kind of transfer during her life time having reservation therein of heirship if donors heirs after donees death. Such deed is not a deed of gift, but a gift of usufruct knownin Muslim law as ‘Ariyat”. There is a distinction between gift (Hiba) and Arlyat’ in Muslim law. Such gift by Arpannama is not a gift of corpus, but a gift of usufruct for life, which is permissible as the Muslim law stands today in the sub-continent. [Paras-10, 11, 12 & 16] Rebjel Mondal Vs. Didar Mondal & Ors. 3 BLT (AD)-83. ....View Full Judgment

Muslim Law
Custody of the daughters of a broken home
The petitioner father claimed custody of both the daughters, alleging that respondent mother had not been looking after the children properly since she had re-married—Held: We have carefully perused the impugned judgment which has at length taken notice of all the facts attending the question of welfare of the two children, The learned Judge in his anxiety also examined the two children in his chamber. The elder daughter clearly made her preference to live with her father and similarly the younger one opted for the mother. It seems from their examinations that both the children have fairly and intelligently developed their own preferences and keeping in view the subsequent family life of both the petitioner and the respondent, we do not think that the learned Judge of the High Court Division acted wrongly or in detriment to the interest of the children in any way by modi1ring the decree of the Courts below, We are satisfied that the impugned order will be in the best interest of the girls. [Para-6] Major (Retd.) Rafiq Hasan Farook Vs. Zeenat Rehana & Ors 7 BLT (AD)-106. ....View Full Judgment

Muslim Law
The donor executed a deed of “Arpannama” by making a provision for the donee. Thereby for enjoyment of usufruct of the land gifted but prohibiting any kind of transfer during her life time having reservation therein of heirship if donor’s heirs after donee’s death. Such deed is not a deed of gift, but a gift of usufruct known-in Muslim law as “Ariyat”. There is a distinction between gift (Hiba) and ‘Ariyat’ in Muslim law. Such gift by ‘Arpannama’ is not a gift of corpus, but a gift of usufruct for life, which is permissible as the Muslim law stands today in the sub-continent. Rebjel Mondal Vs. Didar Mondal & Ors. 3BLT (AD)-83 ....View Full Judgment

Muslim Law
Custody of the daughters—of a broken home
The petitioner father claimed custody of both the daughters, alleging that respondent mother had not been looking after the children properly since she had re-married—Held: We have carefully perused the impugned judgment which has at length taken notice of all the facts attending the question of welfare of the two children. The learned Judge in his anxiety also examined the two children in his chamber. The elder daughter clearly made her preference to live with her father and similarly the younger one opted for the mother. It seems from their examinations that both the children have fairly and intelligently developed their own preferences and keeping in view the subsequent family life of both the petitioner and the respondent, we do not think that the learned Judge of the High Court Division acted wrongly or in detriment to the interest of the children in any way by modifying the decree of the Courts below. We are satisfied that the impugned order will be in the best interest of the girls. Major (Retd.) Rafiq Hasan Farook Vs. Zeenat Rehana & Ors. 7BLT (AD)-106 ....View Full Judgment

Muslim Personal Law
Pardanashin lady —transaction involving transfer of Property —question of special onus
The proposition of law relating to special burden of prove in respect of the Heba-bil-ewaz deed in question if considered in the background of the admitted facts that on the self same date Rativan Bibi executed 2 Heba-bil-ewaz deeds, one in favour of the defendant who is the son of Rativan Bibi’s deceased daughter Rokeya and another in favour of Rativan Bibi’s daughter Rahela and that as no exception was taken in respect of the Heba-bil-ewaz deed in the name of Rativan Bibi’s daughter Rehela conclusion can safely be arrived at that Rativan Bibi executed the Heba deed in favour of his grandson through her daughter at the relevant time deceased and in favour of her another daughter totally of her own free will and she (Rativan Bibi) executed the deed being fully aware of the contents thereof and the nature of the transaction as deposed by the D.Ws.2 and 6 in respect of whom hardly any exception legally sustainable can be taken. It is seen from the judgment of the High Court Division that while the said Division considering the transaction in question in favour of the defendant referring to the concept of special onus with regard to a transaction entered into by a pardanashin lady failed to consider the material fact that Rativan Bibi on the same date executed 2 (two) documents, one in favour of the defendant and other in favour of her daughter Rahela and registered the same subsequently on the same date, but taking exception only in respect of the transaction in respect of the defendant. It has already been mentioned that the defendant has established by the evidence of D.Ws.2 and 6, that Rativan Bibi, the grandmother of the defendant executed the document in favour of the defendant after being aware of the nature of the transaction. Mustafizur Rahman Vs. Md. Amjad Hossain 16 BLT (AD)104 ....View Full Judgment

Muslim Personal Law
Heba -bit- ewaz deed — Product of fraud or undue influence —Burden of proof
The plaintiff has filed the suit alleging fraud in bringing into existence the deed in question. The law is now settled that one who alleges fraud for setting particular transaction, the burden lies on him —That the transaction in question was not the product of fraud or undue influence is evident from the fact as stated hereinbefore, that Rativan Bibi on the same date executed 2 Heba-bil-ewaz deed, one in favour of the defendant and another in favour of her daughter and later on registered the said deeds on the same date, but taking exception only in respect of the transaction made in favour of the defendant. Had the transactions were the product of fraud, coercion or undue influence or had the transactions been not the product of Rativan’s free will and that had the Heba-bil-ewaz deeds were not executed and registered by her without understanding the nature of the transaction and of being unaware of the contents of the documents, Rativan Bibi would in the normal course of conduct and behavior have taken exception to both the transactions instead of that she is taking exception only in respect, of one transaction i.e. the transaction which was made in favour of the defendant and this shows lack of bonafide on her part and that she being influenced by some other interested persons, as contended by the defendant by the sons of Amzad, one of the sons of Rativan Bibi, instituted the suit. Mustafizur Rahman Vs. Md. Amjad Hossain 16 BLT (AD)104 ....View Full Judgment

Muslim Family Law
Custody of the Minor girl aged about 4 years
Admittedly under the principle of Mohammadan Law, Hijanat of a minor daughter naturally devolves upon mother and maternal grand-mother to the exclusion of the father and his mother. The welfare of the minor daughter is the paramount consideration in the matter of allowing custody. But in case of female child the mother is entitled to natural custody of the minor girl until and unless the mother acquired disqualification, the custody of minor daughter is usually given to the mother who serve the welfare of the minor most than other relations including the father and the grand-mother and grand-father. George Bin Shams Vs. Amir Ali Chowdhury and Ors. 13BLT(AD)155. ....View Full Judgment

Valid marriage–

Principles of Mohammedan Law
The Family Courts Ordinance, 1985
Valid marriage– Where there has been prolonged and continuous cohabitation as husband and wife, in the absence of direct proof a presumption arises that there was a valid marriage– The Family Court on assessment of the evidence of Shadrul Islam (P.W.2), Madu Mia (P.W.3), Swapan (P.W.4) and Babul Mia (P.W.5) came to the definite finding that the respondent married the appellant and that they lived as husband and wife, and decreed the suit. The Court of appeal below affirmed the judgment. A single Bench of the High Court Division in exercise of revisional jurisdiction reversed the judgments of the courts below and dismissed the suit.
Once the marriage is consummated and the parties have cohabited, the contractual defect is removed; and the marriage is declared to be legitimate.
There are unanimous views of the jurists and authorities that even in the absence of formal proof of a valid marriage, a marriage can be presumed by evidence of conduct and reputation, and the question of consummation forms often an important element in the status of valid marriage.
Where there has been prolonged and continuous cohabitation as husband and wife, in the absence of direct proof a presumption arises that there was a valid marriage. The law permits no specific ceremony for the contractual performance of a marriage: and no religions rites are necessary for contracting a valid marriage. There are even opinions that a marriage may be constituted without any ceremonial and even in the absence of direct proof, indirect proof might suffice.
Therefore, the decision of the High Court Division is based on a misconception of the basic principles of Mohammedan Law and thus the interference of the judgments of the Courts below is an error of law apparent on the face of the record. The evidence on record sufficiently proved that there was existence of legal marriage between the appellant and respondent. The appeal is, allowed with costs of Tk.10,000/-. ...Momtaz Begum(Mst.) =VS= Anowar Hossain, (Civil), 2020 [9 LM (AD) 153] ....View Full Judgment