Act/Law wise: Judgment of Supreme Court of Bangladesh

ALL A B C D E F G H I J K L M N O P Q R S T U V W X Y Z



Family Courts Ordinance, 1985
Section/Order/Article/Rule/Regulation Head Note
Sections 3 and 5

Family Court has exclusive jurisdiction to decide the suit for maintenance of the parties
irrespective of their faith— In the instant case both the parties are members of Hindu faith according to whose customs there is no provision of divorce. The trial court decreed the suit for past and future maintenance which both the High Court Division and the Appellate Division upheld. Jibon Sharma (Sree) Vs. Sree Siibasini Sharrna and another 15 MLR (2010) (AD) 167. ....View Full Judgment

Section 5

In view of the advance by way of ijtihad made in the right directions within the bounds of sunni Law, the enunciation on past maintenance made in 1964 by the Lahore High Court being affirmed twice by the Pakistan Supreme Court in this respect should not be overlooked or discarded. The High Court Division was therefore wrong in denying past maintenance to the appellant on the ground of lack of prior agreement. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. ....View Full Judgment

Section 5

Section 3 of the Ordinance of 1985 only means that if there are provisions in the Ordinance which are different from or are in conflict with the provisions of any other law then the provisions of the said Ordinance will prevail. Section 3 does not debar the application of Limitation Act to suit filed under the Ordinance of 1985. The fact that the Ordinance of 1985 speaks of "Suit", "plaint", "Written statement", "decree", etc. clearly attracts the Limitation Act under section 29(2) thereof. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. ....View Full Judgment

Section 5

Residuary Article 102 of the First Schedule, providing for a period of limitation of 6 years from the time when the right to sue accrues in respect of a suit for which no period of limitation is provided elsewhere in the First Schedule will be applicable to a suit for maintenance under Ordinance of 1985. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. ....View Full Judgment

Section 5

Under section 5 of the Ordinance of 1985 it is not only the wife who can file a suit in a Family Court for her own maintenance but also for the maintenance of her child. It is not correct to say that all the six subjects mentioned in section 5 relate to suits exclusively between husband and wife. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. ....View Full Judgment

Section 5

Children in easy circumstances under Mohammadan Law are bound to maintain their poor parents, although the latter may be able to earn something for themselves. These poor parents may also file a suit in Family Court for maintenance from their opulent children. Similarly, poor or disabled relatives, even servants of the wife, can maintain a suit for maintenance under the Ordinance of 1985 under circumstances enjoined by Mohammadan Law. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110. ....View Full Judgment

Section 5(d)

Whatever be the meaning of Mataa it is certainly not maintenance as can be claimed within the meaning of maintenance under the Family Courts Ordinance. Hefzur Rahman (Md) vs Shamsun Nahar Begum and another 51 DLR (AD) 172. ....View Full Judgment

Section 5(d)

There is a clear direction in respect of a pregnant woman who has been divorced and the direction is to bear her expenses till she has delivered. In the case of such a woman her period of lddat will be till delivery. It is apparent that the maintenance has been related to the period of lddat. Hefzur Rahman (Md) vs Shamsun Nahar Begum 51 DLR (AD) 172. ....View Full Judgment

Section 5

Liability of the husband to pay the dower and maintenance to his wife on the dissolution of marriage—
When the marriage is admittedly dissolved by talak at the instance of the husband and the husband failed to establish the payment of the dower as claimed, the wife is legally entitled to realise the dower money as well as the maintenance during the period of her iddat. Shahid Ha mid Vs. Niliifar Momtaz 14 MLR (2009) (AD) 33. ....View Full Judgment

Section 5 (e)

Custody of the child– At any time in the future either of the parents of the child shall be at liberty to move the appropriate Court for an appropriate order in respect of the custody of/access to the child in the light of prevailing circumstances at that time and the Court shall be at liberty to entertain such application and to pass necessary order in respect of the child’s custody keeping in view the best interests of the child giving the child an opportunity to express his views.
The observation of the learned Judge of the High Court Division that “violation of any terms of the solenama by any party shall be treated as contempt of Court,” being unwarranted and beyond jurisdiction, is hereby expunged.
We do not find any reason to interfere with the judgment and order of the High Court Division. This petition is dismissed with the above observations without, however, any order as to costs. ...Anika Ali =VS= Rezwanul Ahsan, (Civil), 2020 [9 LM (AD) 363] ....View Full Judgment

Sections 5 and 16(3)

read with
Convention of the Rights of the Child
Articles 9 and 12
Both the parties to the marriage filed Suits in the Family Courts with their own claims and narrated events that led to the dissolution of the marriage. Both the family suits were heard simultaneously and decreed in terms of a solenama filed in each of the family suit. The terms and conditions in each of the solenama are essentially the same. The parties have agreed to the amount of dower money, maintenance for the wife and maintenance for the child. They also agreed, though by implication, that the child, who was at that time about two years and three months old, should remain in the custody of his mother and a schedule of access/visits was agreed upon whereby before his admission in school the child would visit his father's house on two days in every week between 10:00 a.m. and 10:00 p.m. Since both the parties to the ill-fated marriage amicably agreed to abide by certain terms and conditions with regard to the payment of dower, maintenance and custody of the child, as embodied in the solenama, there is no illegality in the essence of the impugned judgment and order. Since the payment of maintenance for the child is a continuous process, the door of the Courts is always open to the child's mother to ensure the payment of the maintenance for the child. Equally, the father has the right of access as mentioned in the solenama. Anika Ali, daughter of late Kazi Haider Ali -Vs- Rezwanul Ahsan, son of Monjurul Ahsan Munshi 1 ALR (AD)38 ....View Full Judgment

Section 6(4)

In the name of granting general or other relief the Court cannot and would not mount any surprise on the defendant and make him liable for something which does not arise out of the plaint and, as such, he had no occasion to answer the same. This is merely an extension of the principle of natural justice (ATM Afzal CJ). Hefzur Rahman (Md) vs Shamsun Nahar Begum and another 51 DLR (AD) 172. ....View Full Judgment

Section 6(1)

Place of institution of suit—Within the local limits of whose jurisdiction the parties reside or last resided together —Parties where reside or last resided together—can be gone into at the time of trial of the suit if a proper issue is raised on the point. Abdul Matlib Gaznvi Vs.Toiyab Ali and others, 12 BLD (AD) 30 - ....View Full Judgment

Section 6(4)(g)

read with
Code of Civil Procedure, 1908, Order VII Rule 7
Per A.T.M. Afzal, CJ: The law requires that the relief must be specifically claimed either simply or in the alternative. It is true that general or other relief which the Court may think just may be granted although not specifically asked for. But the essential conditions are that the averments in the plaint must justify such relief and the defendant must get an opportunity to contest such relief. In the name of granting general or other relief the court cannot and would not mount any surprise on the defendant make liable for something which does not arise out of the plaint and as such he had no occasion to answer the same. This is merely an extension of the principle of natural justice.
The defendant was admittedly absent at the hearing of the revision before the High Court Division. The worst that could happen to him was that the Rule could have been discharged for default or on merit and the appellate judgment and decree would have been maintained in that case. But if the learned Judges entertained some bright and innovative ideas about some verses of the Quran hitherto not known for saddling the defendant with more liability than the plaintiff had claimed and received, then was it not necessary and lot elementary that the defendant ought to have been put on notice again? It was like enhancing the sentence of an accused in exercise of revisional jurisdiction in a criminal case. Could any tribunal do it without putting him on prior notice? This is exactly what has been done by the High Court Division which to say the least, was unfortunate. Md. Hefzur Rahman Vs. Shamsun Nahar Begum and another, 19 BLD (AD) 27. ....View Full Judgment

Section 6(4)(g) and 17

read with
Code of Civil Procedure, 1908, Section—115
Per Mustafa Kamal, J: Section 6(4)(g) of the Ordinance provides that the plaint shall contain inter alia the relief which the plaintiff claims. An appeal lies under section 17 of the Ordinance to the Court of District Judge. The High Court Division interferes in revision under section 115 of the Code of Civil Procedure when the lower appellate Court appears to have committed an error of law resulting in an error in the decision occasioning failure of justice. In such a case the High Court Division may make such order in the case as it thinks fit. The High Court Division did not say in the impugned judgment that the lower appellate Court committed any error of law on the point of maintenance. Giving the plaintiffs a substantive relief beyond the frame of the suit is beyond the jurisdiction of the revisional court and is a sad case of judicial excess defying all judicial norms and trampling the judicial procedure. Md. Hefzur Rahman Vs. Shamsun Nahar Begum and another, 19 BLD (AD) 27. ....View Full Judgment

Section 7(1)(3)(5)

The Muslim Family Laws Ordinance, 1961 when interpreted in the light of Articles 8 and 8(1A) of the Constitution preserves iddat as laid down in the Holy Qur–an : (Mustafa Kamal J). Hefzur Rahman (Md) vs Shamsun Nahar Begum 51 DLR (AD) 172. ....View Full Judgment

Section 16(4) & (5)

Call it the executing Court or the trial Court, it is nontheless the Family Court which passed the decree and its power to allow installments even after passing of the decree is undoubted. Resima Sultana vs Khaez Ahmed Mojumder 49 DLR (AD) 57. ....View Full Judgment

Section 16(3)

In the execution proceeding whether the subsequent execution against the judgment- debtor is maintainable or not?
From the materials on record it was found that on the own seeking of the petitioner 40 installments were granted but the petitioner did not pay a single installment. The execution was started for one installment only in respect of Tk. 13,000/- and odd whereas the total decree was for Tk. three lac and odd and as such the entire decretal amount remained unpaid. As a matter of fact, the execution was for one installment and there is no legal bar to proceeding with the executing under section 16(3) of the Ordinance for the unpaid amount. The entire amount having remained unpaid. there is no legal bar to proceeding with the subsequent execution. Md. Serajul Islam Vs Maksuda Akhter (Navy) Advocate, 20 BLD (AD) 84. ....View Full Judgment

Section 16(5)

Enforcement of decrees
Under the general law the trial Court may allow payment of the installments even after the passing of the decree under certain circumstances. Under sub-section (5) of Section 16 of the Ordinance it is permissible for the Court to allow installments even after the passing of the decree. The difference between the general provisions and those provided in section 16(5) of the Ordinance is that whereas under the former the power is hedged by certain conditions including one of limitation. But under sub-section (5) of section 16 of the Ordinance there is no such condition except that the power should be exercised by way of proper judicial discretion. This power is wider under subsection (5) of section 16 of the Ordinance and it may be exercised either on the application of a party or even suo motu so long as the decree remains unsatisfied. A Family Court therefore has the power to allow installments as it deems fit even after the passing of the decree. Reshma Sultana Vs Khaez Ahmed Mojumder, 17 BLD (AD) 72. ....View Full Judgment

Section 20

Abatement of a legal proceeding challenging validity of the notifications constituting reserved forest known as Attia Forest—There is no scope for challenging the validity of notification of 1972 under the Forest Act (XVI of 1972) constituting reserved forest after the promulgation of the Attia Forest (Protection) Ordinance (XXXIII of 1982)- All judgments, decrees or orders in respect of Attia Forest shall have no force and all suits, appeals and other legal proceedings chal— lenging constitution of Attia Reserved Forest shall abate-Independently of the Attia Forest (Protection) Ordinance, the Notification of 1972 constituting reserved forest known as Attia Forest is valid. Bangladesh Vs. Abdul Baset Mia, 6 BLD (AD) 62. ....View Full Judgment

The parents fight their children’s custody cases–
The children shall be brought by their father to the office of the Department of Social Services, Chattogram every Friday and Saturday and he shall leave them there in the custody of Md. Shahidul Islam, Deputy Director, Department of Social Services, Chattogram. Ms. Mahjareen Binta Gaffar, Clinical Psychologist shall visit the children for the purpose of continuing with their counselling, which shall be for a period of two hours every Friday and Saturday afternoon at 3:00 pm. Rumana Foiz, the mother of the children shall have the right to visit the children at the office of the Department of Social Services, Chattogram during the said period. We make it clear that the father of the children will not be present in or near the office of the Department of Social Services at that time when the children are in that office. .....Mainul Islam Chowdhury =VS= Rumana Foiz, (Civil), 2018 (2) [5 LM (AD) 358] ....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