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Husband to pay maintenance during subsistence period

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12th-May-2018       
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High Court Division :
(Civil Rcvisional Jurisdiction)
SM Emdadul Hoque J
Kashefa Hussain J
Halima Motiar     .................Petitioner
vs
Sheikh Motiar Rahman   ........... Respondent
Judgment
March 12th, 2017
Family Courts Ordinance (XVIII of 1985)
Section 5
The husband is duty bound to pay maintenance during subsistence of the marriage and also for a period of 3 (three) months starting from date of the "Talak" or divorce notice given and therefore maintenance shall be paid to the wife for a period of 3 (three) months following the date in which "Talak" or divorce notice is issued. . ..... (1 4)
Sharif Arif Newaz Advocate-For the Petitioner
None Appear-For the Respondent.
Judgment
Kashefa Hussain J : Rule was issued at the instance of the petitioner in this Civil Revisional Application calling upon the opposite party No. 1 to show cause as to why the impugned judgment and decree dated 20-5-2010 (decree signed on 26-5-2010) passed by learned Additional District Judge, 8th Court, Dhaka in Family Appeal No. 34 of 2009 modifying and affirming the judgment and decree (in partial) dated 11-2-2009 (decree signed on 17-2-2009) passed by learned Senior Assistant Judge, Family Court No. 13, Dhaka in Family Suit No. 735 of 2006 should not be set aside and/or pass such other or further order or orders as to this court may seem fit and proper.
2. Facts relevant for disposal of the Rule in short is that the petitioner as plaintiff filed a suit in the Family Court being Family Case No. 735 of 2006 for Dower and maintenance for her 3 (three) minor children and also for herself in the Court of Senior Assistant Judge, Family Court No. 13, Dhaka.
3. The plaintiff's case inter-alia is that the plaintiff-respondent-petitioner and defendant-appellant-opposite party No. 1 were married on 9-8-1995 as per Muslim Shariah Law, fixing a dower of Taka 5,00,001 (Taka Five lacs and one) only and they have two daughters and a son out of the wedlock. Somehow, a few years after, differences arose between them out of personal matters and at one stage the defendant appellant opposite party stopped giving maintenance to the petitioner and their children from 6-5-2005 and one stage he divorced the petitioner. Following these incidents, the plaintiff filed a suit for declaration being Title Suit No, 42 of 2006 for declaration inter-alia that the divorce or "Talak" to be false, fictitious, illegal, unlawful, void and not binding upon the petitioner. But the Trial Court rejected the plaint upon hearing both the parties. Against that order the petitioner as appellant filed an appeal before the court of the Learned District Judge Dhaka which was sent to the Court of learned Additional District Judge 7th Court, Dhaka. That after hearing the appeal against rejection of plaint the appeal was allowed on contest against the present opposite party No. 1 and expartee against the rest by setting aside the judgment and decree of TS No. 42 of 2006, dated 21-5-2007 and the Title Suit No. 42 of 2006 was restored to its original number and file and it is still pending in the relevant court for disposal thereof.
4. The' plaintiff-respondent-petitioner filed Family Case No. 735 of 2006 for trial and maintenance in which learned senior Assistant Judge after hearing both the parties passed the judgment and decree dated 11-2-2009 and declared that the suit be decreed on contest against the opposite party No. 1 and expartee against rest without any cost and ordered that the suit be decreed (Partial) against the defendant No. 1 for dower and for maintenance without any money as to cost and further ordered that from the date of passing of the Decree, the defendant No. 1 shall have to deposit and amount of Taka 2,50.000 (Taka two lacs fifty thousand) only as dower and for maintenance Taka 84,000 (Taka eighty four thousand) only as arrear for the Plaintiff Petitioner, and maintenance for 3 (three) minor children Taka 2,52,000 (Taka two lacs fifty two thousand) only in total maintenance for Taka (84,000+2,52,000) = 3,36,000 that is total maintenance for Taka 3,36,000 and for dower Taka 2,50,000 = Taka 5,86,000 (Taka five lacs eighty six thousand) only in favour of the plaintiff-petitioner within 40 (forty) days from the date of declaring the decree without fail. The learned trial court in the decree declared that the defendant No. I, shall have to pay Taka 3,000 (Taka three thousand) only for each month for the plaintiff and for her 3 (three) minor children for each month Taka 9,000 (Taka nine thousand) only that is Taka 12,000 (Twelve thousand) only for 4 (four) persons for every month till the period they are legally entitled. That the learned Court further declared that the defendant No. 1, be directed to pay the money for maintenance to the plaintiff and her children within 10th day of each calendar month and further declared in the decree that this amount of maintenance would be enhanced at the rate 10% at the end of each calendar year.
5. The learned trial court further opined in the judgment and decree that in case of failure of payment of the decreetal amount on the part of the defendant No. 1, the plaintiff shall realize the same amount through court.
6. Against the Judgment and decree dated 11-2-2009 the present opposite party as appellant prayed for appeal being Family Appeal No. 34 of 2009 in the Court of the learned District Judge, Dhaka and which was transferred to the court of Additional District Judge, Dhaka for disposal. The Learned Appellant Court after hearing both sides modified the earlier Judgment and decree passed by the Trial Court dated 11-2-2009 and against which modification the plaintiff respondents as petitioner filed the instant civil revisional application.
7. Learned Advocate Sharif Arif Newaz appears on behalf of the petitioner while none appears for the opposite parties though the mattered appeared for several days in the list.
8. Learned Advocate for the petitioner submits that the divorce "Talak" is not effective and binding upon the petitioner since there is no evidence to prove that the divorce notice was issued and "Talak" was actually given. In reiterating his assertion he tried to draw our attention to an observation made in the judgment and decree dated 11-2-2009 passed by the learned Assistant Judge in Family Case No. 735 of 2006 to the effect that:

”বিবাদী বাদীকে তালাক প্রদান করিয়াছেন কিš' বিবাদী তালাকের বিষয়টি মৌখিক বা দালিলীক সাক্ষ্য দ্বারা প্রমাণ করিতে পারে নাই। যে কারণে যতক্ষণ না তালাকের বিষয়টি সঠিকভাবে প্রমানীত না হইবে ততক্ষণ বাদী ১নং বিবাদীর মধ্যে বৈবাহিক সম্পর্ক বহাল রহিয়াছে মর্মে ধরিয়া লইতে হইবে।”
9. He contends that the learned Appellate Court without taking this observation of the Trial Court into consideration erroneously arrived at its conclusion that the divorce has become final.
10. He further asserts that whether there was a valid divorce or any divorce at all depends on the outcome of the declaration Title Suit No. 42 of 2006 and therefore the issue of divorce is still pending and not final. He further argues that the modification of the decree by the Appellate Court dated 25-5-2010 of the earlier decree by the learned Assistant Judge 11-2-2009 was erroneously given and erroneously modified by the Appellate Court upon misconception of facts and law and consequently the Rule bears merits and ought to made absolute.
11. We have heard the learned Advocate for the petitioner perused all materials on records including the Judgments of both the courts below. Upon scrutiny of such, with regard to the issue of divorce being not final and complete, we opine that regrettably the submissions of the learned advocate of the petitioner is wrong upon a mistaken presentation of facts. As it is disclosed from the records in the judgment of the appellate court dated 25-5-2010 the learned Judge has made an observation in which is reproduced hereundeৎ:
“আপীল্যান্টপক্ষ আপীল শুনানীকালে উক্ত তালাক নামার নোটিশ ও কাজী অফিসের রেজিষ্ট্রিকৃত তালাকনামাসহ নোটারী পাবলিকের নিকট তালাক প্রদানের হলফ নামা দাখিল করেছেন। রেসপনডেন্ট/বাদীনিপক্ষ ঢাকা সিটি কর্পোরেশনের শালিশী কেস নং ৪৭৪৩/২০০৫ এর সই মুহরী নকল দাখিল করেছেন। উহাতে দেখা যায় যে, ১৫-১২-২০০৫ ইং তারিখ ঢাকা সিটি কর্পোরেশনের আইন কর্মকর্তা ২৮-১১-২০০৫ ইং তারিখের প্রদত্ত তালাকের নোটিশ প্রাপ্ত হয়েছে। অতএব উভয় পক্ষকে শুনানীর জন্য ৫-১-২০০৬ ইং তারিখে ও ৭-২-২০০৬ ইং তারিখ নোটিশ প্রেরণ করেন। তৎপরবর্তীতে বাদীনির আবেদনের প্রেক্ষিতে উক্ত শালিশ কেসটি দেওয়ানী ৪২/০৬নং মামলার বরাতে স্থ'গিত হয়। উক্ত দেওয়ানী মামলাটি বিগত ২১-৫-২০০৭ ইং তারিখ খারিজ হয় মর্মে আপীল মেমোর ১১ নং দফায় উল্লেখ রয়েছে। বাদী/রেপনডেন্ট ও বিবাদী/আপীলকারী উক্তরূপ কাগজাদি পরীক্ষান্তে তাদের মধ্যে তালাক কার্যকর হয়েছে মর্মে গন্য হয়।”
 12. Therefore it is evident from the records that whatever suit might be pending in any court below for declaration as to the "Talak" being unlawful, fictitious, not binding upon the petitioner etc, but according to the record before us and under the provisions of the 'Muslim Family Laws Ordinance 1961' the divorce notice having been issued on 28-11-2005 divorce or "Talak" is deemed to have been completed on 28-2-2006 in accordance with the provisions of 'Muslim Family Laws Ordinance 1961' and from that date the divorce or "Talak" became effective.
13. In the facts and circumstances of the case and after taking all materials and records into consideration and after hearing the Advocate for the petitioner we are inclined to dispose of the Rule with some modification of the decree of the appellate court to the effect that the dower money of Taka 5,00,001 (Taka five lacs and one) shall be paid and the date from which the amount for maintenance given to the wife will start from 6-5-2005 and will continue till 28-2-2006. The Appellate Court's finding is incorrect upon all erroneous interpretation of the law, regarding the period of time for which maintenance must be given to the petitioner wife. The Appellate Court has opined that maintenance shall be given only for the 'Iddat' period of 3 (three) months following the divorce. But the particular finding of the Appellate Court is incorrect.
14. In our considered view, upon interpretation of the relevant laws according to the provisions of 'Muslim shariah Law' the husband is duty bound to pay maintenance during subsistence of the marriage and also for a period of 3 (three) months starting from date of the "Talak" or divorce notice given and therefore maintenance shall be paid to the wife for a period of 3 (three) months following the date in which "Talak" or divorce notice is issued. In the instant case, the Judgment and decree of the Appellate court is hereby modified to the extent that entire period for which maintenance has been given ensues from 6-5-2005 till 28-2-2006 which comprises of the period before Divorce was given and also the period of 3 (three) months following the divorce, which in the instant case was given on 28-11-2005 and was complete on 28-2-2006. Maintenance shall include the 'lddat' period of 3 (three) months in accordance with the principles of 'Muslim Shariah law' and divorce which was also complete on expiry of 90 days in accordance with the 'Muslim Shaiah Law' and also under the provisions of the 'Muslim Family laws ordinance 1961'. In view of the above observations in the instant case therefore maintenance must be given to the plaintiff-respondent-petitioner by the opposite party starting from 6-5-2005 till 28-2-2006.
15. Therefore, the Rule is disposed of with the above modification and directions.
16. The order of stay granted earlier by this Court is hereby vacated.
Send down the lower Court records at once.

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