Section 4
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For realization of dower Family Court established under Section 4 of Family
Court Ordinance, 1985 is the right forum:
Since the land in question is the portion of dower as paid or purportedly
transferred in favour of the plaintiff by the father of her husband, this
Court is of the view that the forum as chosen by the plaintiff to realize
such dower was not the correct forum under the law of the land. As our
country has special law, namely Family Court Ordinance, 1985, the
provisions of which will have effect irrespective of any contrary
provisions in any other law including the Registration Act, 1908 and the
Transfer of Property Act, 1882, the plaintiff should have taken recourse to
the provisions of the said special law and should have filed a suit for
dower under the provisions of the said Ordinance before the Family Court
established under Section 4 of the said Ordinance. …Sadrul Huq being dead
his heirs & ors. Vs. Farhana Firdousi & anr, (Civil), 16 SCOB [2022] HCD
62
When plaintiff chooses wrong forum, he/she should be given a chance to
withdraw the said suit even at the appellate stage to file the same before
the right forum:
Since the plaintiff in the present case has chosen a wrong forum, namely
filed a partition suit before a civil Court having territorial
jurisdiction, we are of the view that the plaintiff should be given a
chance to withdraw the said suit at this appellate stage to file the same
before the Family Court, as established by the Family Court Ordinance,
1985, for seeking a decree of dower in respect of the said property. Since
we have already held that the land in question can be treated as dower, we
are of the view that the plaintiff should be allowed to withdraw the suit
at this appellate stage with a permission to file the same before the
correct forum, namely the Family Court established under the Family Court
Ordinance, 1985. …Sadrul Huq being dead his heirs & ors. Vs. Farhana
Firdousi & anr, (Civil), 16 SCOB [2022] HCD 62
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Sadrul Huq being dead his heirs & ors. Vs. Farhana Firdousi & anr |
16 SCOB [2022] HCD 62 |
Section 5 and
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Section 10 of the Muslim Family Law Ordinance, 1961:
In this regard, we have examined the provisions of the Family Court
Ordinance, 1985. It appears from the relevant provisions of the said
Ordinance that the same is a special law by which a special Court, namely
Family Court, has been established and that the provisions of the said law
have been given overriding effect over any other law found to be
inconsistent. As per Section 5 of the said Ordinance, the jurisdiction of
the Family Court has been conferred relating to or arising out of all or
any of the following matters, namely (a) dissolution of marriage (b)
restitution of conjugal rights (c) dower (d) maintenance (e) guardianship
and custody of children. Therefore, it appears that a wife is entitled to
file a suit claiming a decree of dower before the Family Court established
under the Family Court Ordinance, 1985. The term ‘dower’ has not been
defined either by the Muslim Family Law Ordinance, 1961 or by the Family
Court Ordinance, 1985. However, Section 10 of the Muslim Family Law
Ordinance, 1961 provides that where no details about mode of payment of
dower are specified in the nikahnama for the marriage contract, the entire
amount of dower shall be presumed to be payable on demand. …Sadrul Huq
being dead his heirs & ors. Vs. Farhana Firdousi & anr, (Civil), 16 SCOB
[2022] HCD 62
Form of dower and who may undertake to pay the dower in Islamic law:
From the above opinion of the said islamic scholars, it appears that the
landed property, being a valid property under Islam, may take the form of
dower under Islamic principles, and anyone, including the father of the
husband, may undertake to pay or transfer such dower. Therefore, it appears
that the landed property in question was rightly taken to be a form of
portion of dower to be transferred in favour of the plaintiff and that the
father of the husband, namely defendant No.1, was allowed under the Islamic
law to undertake or to transfer the said land in lieu of certain portion of
the said dower money in favour of his daughter-in- law. …Sadrul Huq being
dead his heirs & ors. Vs. Farhana Firdousi & anr, (Civil), 16 SCOB [2022]
HCD 62
....View Full Judgment
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Sadrul Huq being dead his heirs & ors. Vs. Farhana Firdousi & anr |
16 SCOB [2022] HCD 62 |
Section 9(6)
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It appears that both the courts after proper consideration of the evidence
on record rightly opined that since the petitioner himself received the
summons so without filing any appeal against the experte judgment and
decree he cannot get any relief. ...Md. Bazlur Rahman Vs Shamsun Nahar &
ors., (Civil), 7 SCOB [2016] HCD 61
....View Full Judgment
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Md. Bazlur Rahman Vs Shamsun Nahar & ors. |
7 SCOB [2016] HCD 61 |