Md. Ijal Uddin Munshi Vs. Mst. Rokeya Khatun and another, 2009, 38 CLC (AD)

Monday, 02 November 2009 16:56

Written by Md. Ershadul Karim

Supreme Court

Appellate Division

(Civil)

Present:

Mohammad Fazlul Karim J

Md. Tafazzul Islam J

Md. Joynul Abedin J

Md. Ijal Uddin Munshi ………..Petitioner

Vs.

Mst. Rokeya Khatun and another……..Respondents

Judgment

January 19, 2009.

Lawyers Involved:

Abu Siddique, Advocate-on-Record-For the Petitioner.

Not rep­resented-the Respondents.

Civil Petition for Leave to Appeal No. 1629 of 2007.

(From the judgment and order dated the 5th day of February, 2007 passed by the High Court Division in Civil Revision No.1101 of 2007).

Judgment

             Mohammad Fazlul Karim J. - Delay of 273 days is condoned. This petition for Leave to Appeal is directed against the judgment and order dated 05.02.2007 passed by the High Court Division in U.O. No.1101 of 2007 affirming the judgment and order dated 28.09.2006 passed by learned District Judge, Jhenaidah in Family Appeal No.17 of 2006 thereby affirming those dated 06.09.2006 passed by Senior Assistant Judge, Harinakundu, Jhenaidhah in Family Suit No.17 of 2005 allowing the application for D.N.A. test of the plain­tiffs and defendant filed by the plain­tiffs.

2. The facts of the case, in short, are that the plaintiff filed Family Suit No.17 of 2005 before the Assistant Judge, Harinakundu on 26.05.2005 against the petitioner. The defendant and the plain­tiff are of same village. The plaintiff No.1, Rokeya Khatun married defen­dant, Izaluddin before 16 years at a dower of TK. 30,000.00 according to the Muslim Sariah. After their marriage while living as husband and wife daugh­ter-plaintiff No. 2, Sheuli Khatun was born out of the said wedlock. After birth of the plaintiff No. 2 defendant neglected both of them. The cause of action for the suit arose on 15.04.2005 corresponding to 2nd Baishakh, 1412 B.S. on Friday at 10 A.M. the defendant went to the house of brother of the plaintiff No. 1 for a visit and plaintiff No.1 demanded mainte­nance for her daughter at a rate of TK. 1,000.00 per month and TK.2, 000.00 per month for herself from the defendant. The plaintiff No.1 also claimed unpaid dower of TK.30, 000.00 from the defendant. Defendant refused to pay the dower and maintenance claimed by the plaintiff No.1. Therefore, the plaintiffs filed the suit for dower and maintenance.

3. The defendant contested the suit by filing written statement denying all the material allegations stating, inter alia, that there was no cause of action for the suit; that the suit was not maintainable and the suit was barred by principle of estoppels, waiver and res judicata. Plaintiff No.1 was not a wife of the defendant and as such, she has no right to claim dower and maintenance. The defendant did not marry plaintiff No.1 according to Muslim Shariah at a dower of TK.30, 000.00. Plaintiff No.2 was not born during the existence of wedlock between the defendant and plaintiff No.1. The plaintiff No.1 was never mar­ried to the defendant and she is not a wife of defendant No.1 at all. The plain­tiff filed the false case only for harassing the defendant. The mother of the plain­tiff No.1 is a beggar. She has maintained herself through begging. Plaintiff No.1 lives by earning of immoral acts and the plaintiff No.1 has no social dignity. She lives on doing unsocial and immoral acts and as collaborator of miscreants.

4. Mr. Abu Siddique, learned Advocate-on-Record, appearing for the petitioner submitted  that the family suit was brought by the plaintiff for maintenance and dower which depends upon proof of solemnizing marriage and birth of a child during existence of marriage which has get nothing to do with D.N.A. Test; that both the Courts below have committed error of law allowing an application for D.N.A. Test prematurely failing to consider the subject matter and prayer of the Family Suit and provisions of law applicable thereto resulting in an error in decision occasioning failure of justice.

5. It appears from the record that the plaintiffs filed the suit for dower and maintenance of the plaintiff Nos. 1 and 2 on assertion, inter alia, of due solem­nization of marriage. The plaintiffs filed an application for D.N.A. test of plain­tiff No.2 and the defendant on 20.07.2006 against which the defendant filed written objection and after hearing the parties the learned trial Court rightly and legally allowed the application for D.N.A. Test. The High Court Division rejected the revisional application hold­ing that since there is no merit in this revisional application and it must fail. The learned Courts below rightly allowed the application for D.N.A. Test for finding out the truth and the real sta­tus of the plaintiff Nos.1 and 2 and the defendant.

6. In view of the above, we find no sub­stance in the submissions of the learned Advocate for the petitioner.

7.  The leave petition is dismissed with cost of TK. 5000.00 (five thousand) which is to be paid within 3(three) months.

8. The learned Advocate-on-Record for the petitioner is directed to file an affidavit-in-compliance of this order within the aforesaid period.

Ed.

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