High Court Division :
(Civil Revisional Jurisdiction)
SM Emdadul Hoque J
Kashefa Hussain J
Aleya Akter ……….. Petitioner
Md Daulat Patwary ....
May 15, 2017
Family Courts Ordinance (XVIII of 1985)
Otherwise than as a witness only a 'pardahnashin lady' may be allowed to be represented by a duly authorised agent before a Family Court. The Ordinance, has specifically confined and limited the permission to appear through duly authorised agent to a 'pardahnashin lady' only. The law is also quite transparent on the provision that otherwise than as witnesses, all others, who are required under the Ordinance to appear except a 'pardahnashin lady' have to appear in person before the Family Court. …….(13)
Md Atikur Rahman vs Ainunnahar, 7 BLT 241 ref.
Md. Hamidur Rahman, Advocate-For the Petitioner.
Md Hamidur Rahman, Advocate-For the Petitioner.
None Appear-For the Respondent.
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 improved judgment Ltd order elated 17-5-2016 passed by learned Additional District Judge, 5th Court, Dhaka in Family Appeal No. 255 of 2015 rejecting the appeal thereby affirming the order dated 6-8-2015 passed by the learned Additional Assistant Judge, Family Court No.3. Dhaka in Family Suit No. 531 of 2014 rejecting the application dated 14-5-2015 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. The facts relevant for disposal of the Rule in short is that the plaintiff-petitioner was married to the defendant-opposite party on 10-2-2012 and the amount of dower money fixed was Taka 3,00,001 (three lac one). After marriage, subsequently differences arose between them and the plaintiff-petitioner inter-alia allege that the defendant-opposite party physically tortured her and extorted dowry from the petitioner's family. At one stage the defendant-opposite party husband left for Italy. Eventually she realised that she was pregnant and she left the husband's home for her father's home and the child was born in her father's house and her husband did not contribute towards her maintenance nor did he pay dowry money but which he is bound to give to her under the Muslim Family Laws. For a while she returned to her husband's family but could not stay there long due to misbehaviour of her in laws and again returned to her father's home. At on stage the petitioner as plaintiff instituted Family Suit No. 154 of 2014 for dower and maintenance against the defendant husband.
3. The defendant entered appearance in the suit through a constituted Attorney and contested the suit by filing a written statement.
4. During course of that proceedings, the plaintiff on 14-5-2015 filed an application under Section 21 of the Family Courts Ordinance, 1985 praying for abstaining the defendant from contesting the suit by constituted Attorney contending inter alia that since the defendant is a male person, as per law he cannot contest the suit by his constituted Attorney. On the same day, the defendant filed an application for calling the concern Volume of marriage from the concerned office of Nikah Register.
5. The learned Family Court heard the said applications and was pleased to fix the suit on 6-8-2015 for order and consequently the learned Court, by its order dated 6-8-2015 was pleased to reject the said application dated 14-5-2015 filed by the plaintiff Md was further pleased to allow the said application dated 14-5-2015 filed by the defendant allowing him to he represented by a constituted attorney.
6. Being aggrieved by and dissatisfied with the aforesaid order, the plaintiff an appellant filed Family Appeal being No. 255 of 2015 before the learned District Judge, Dhaka.
7. Consequently the said appeal was transmitted to the Additional District Judge, 5th Court, Dhaka for disposal and upon hearing, the learned appellate Court by its order dated 17-5-2016 was pleased to reject the appeal thereby affirming the order of the trial Court.
8. Being aggrieved by the order of the learned Appellate Court dated 17-5-2016 the plaintiff as petitioner preferred the instant Civil Revisional application which is before us for our disposal.
9. Learned Advocate Mr Md Hamidur Rahman appears on behalf of the petitioner while none appears for the opposite party though the matter appeared for several days in the list.
10. Learned Advocate Mr Md Hamidur Rahman submits that both the Courts below failed to appreciate the provision of law as contained in Section 21 of the Family Court Ordinance, 1985. He argues that the defendant being a male, cannot contest the family suit filed against him through a constituted attorney only, but he has to appear himself, in person. Elaborating his submissions he takes us to Section 21 Family Court Ordinance, 1985. Drawing our attention to Section 21 he asserts that the provisions of the section express that otherwise than as a witness, only a pardahnashin lady, may be permitted to be represented by a duly authorised agent or duly constituted attorney whatsoever. He further submits that the pre-trial proceeding as per the provisions of law as per Section 10 of Family Court Ordinance have also been concluded and the matter is on the process of proceeding with trial. He takes us to the order of the learned Appellate Court wherefrom he points out that the learned appellate Court has upon misapplication of mind and misinterpretation of facts injudiciously relied upon Section 10 of the Family Court Ordinance, 1985. Learned Advocate further persuades that Section 10 of the Family Court Ordinance contemplates a circumstance and situation during pretrial proceedings only, where the court can after examining the documents filed by the parties, if it so deems fit, hear the parties. He assails that Section 10 of the Family Court Ordinance is not at all applicable in this case, since the pretrial proceeding is over and is trial is about to begin. He further argues that the learned Court below upon total misinterpretation of facts and on mistaken reliance of Section 10 of the Family Court Ordinance, 1985 rejected the application of the plaintiff-petitioner.
(To be continued)
In support of his submissions he cites a decision of this court in the case of Mohammad Atikur Rahman vs Ainunnahar reported in 7 BLT 241. Drawing in analogy from the 7 BLT decision, he submits that in that case the court up held the principle that the defendant being the husband and not a pardahnashin lady he cannot be represented by an agent. Relying upon his submissions and the relevant provisions of the Family Courts Ordinance drawing support, from the decision of the High Court Division in the/ BLT 241 case, he concludes his submissions upon assertion that the Rule bears merit and therefore ought to be made absolute for ends of justice.
11. We have heard the learned Advocate and perused the application and materials on record including the Orders of the learned Courts below. We have also perused Section 21 and Section 10 of the Family Court Ordinance, 1985 and have gone through the 7 BLT 241 High Court Division decision placed before us.
12. Upon plain reading of Section 21 of the Ordinance it is quite evident that as per this section otherwise than as a witness all other persons except a 'pardahnashin' lady are required under the law to appear before the Family Court. Section 21 of the Family Court Ordinance is reproduced hereunder:
If a person required under this Ordinance to appear before a Family Court, otherwise than as a witness, is a pardahanshin lady, the Family Court may permit her to be represented by a duly authorized agent.
13. From a plain reading of Section 21 it is quite clear that otherwise than as a witness only a 'pardahnashin' Lady may be allowed to be represented by a duly authorized agent before a Family Court. The Family Court Ordinance, 1985 has specifically confined and limited the permission to appear through duly authorised agent to a 'pardahnashin' lady only. The law is also quite transpirent on the provision that otherwise than as witnesses, all others, who are required under the Ordinance to appear except a 'pardahnashin' lady have to appear in person before the Family Court.
14. We have also perused section 10 of the Ordinance and after perusal of the section we find force in the submission of the learned Advocate for the petitioner on his assertion that Section 10 is not applicable in the instant case since them out perused dt Section 10 it is also clear that Section 10 contemplates a pretrial proceeding only and therefore, in this case the pre-trial proceeding being concluded with, Section 10 is not at all applicable here in the case before us. We have also perused the 7 BLT 241 High Court Division decision placed by the learned Advocate of the petitioner and since upon perusal it is revealed that the facts in that case and the instant case before us are similar, and upon our own interpretation of the relevant laws, we are in respectful agreement with the 7 BLT 241 case.
15. Under the facts and circumstances and for the reasons stated above we find merits in the Rule. In the result, the Rule is made absolute and the Judgment and order dated 17-5-2016 passed by the Additional District Judge, 5th Court, Dhaka in Family Appeal No. 255 of 2015 rejecting the appeal thereby affirming the order dated 6-8-2015 passed by the learned Additional Assistant Judge, Family Court No. 3, Dhaka in Family Suit No. 531 of 2014 rejecting the application dated 14-5-2015 is hereby set-aside.
Order of stay granted at the time of issuance of the Rule is hereby vacated.