HIGH COURT FORM NO.

(J) 2

HEADING OF JUDGEMENT IN ORIGINAL SUIT/CASE

District-Dhaka

In the Court of the 3rd Additional Assistant Judge and Family Court No.13

Present: Mr. Jahirul Alam

Assistant Judge, Dhaka.

29th day of January 2019

Family Suit no. 162/2014

Bulbul Ahmed Panna

...................... Plaintiff.

Versus

Mohsina Akhtar

.................. Defendant.

This suit/case coming on for final hearing on:

In the presence of

1. .....................Advocate for plaintiffs.

2. ................. Advocate for the defendant.

And having stood for consideration to this day the Court delivered the following
judgment: -This is a suit for custody of one minor daughter. The case of the
plaintiff, in short, is that plaintiff got married to defendant in 2004 which is
admitted by both the parties; that out of their wedlock one daughter named Manha
Basimah Ahmed Mithi was born on 09/11/2010. and at the time of filing of the
suit he was 3 years 3 months old; that after marriage, it was manifested to the
plaintiff that defendant did not pay heed in any matrimonial matters; that having
no other alternative, plaintiff divorced the defendant on 07/05/2015; that the
defendant denied the visiting right of father; that the defendant wanted the custody
of the minor daughter considering the welfare of the same; that the defendant has
been constrained to file the present suit before the Court.

Defendant contested the suit by filing written statement denying all the material
averment made in the plaint by the plaintiff. The specific case of the defendant
contending inter alia is that marriage between her and the plaintiff was solemnized

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on 2004 after observing the Islamic shariat fixing the dower; that out of their
wedlock aforesaid one daughter born; that after marriage, plaintiff has illicit
realtion with one Ripa and after that he married that girl; that the defendant
provide maintenance, clothing and educational expenses of minor daughter; that
the welfare of the minor ultimately rest with her; that the defendant for the facts
mentioned above prayed for dismiss the suit costs.

Issues:-

The following issues have been framed for proper adjudication of the suit:

1. Is the suit maintainable in its present form and manner?

2. Is the plaintiff entitled to get custody of the minor?

3. Is the plaintiff entitled to get any relief as prayed for?

Findings and decision:

The plaintiff with a view to proving his case as narrated in the plaint examined
himself as P.W. 1. On the other hand, in order to prove the case of defendant, has
not deposed before court rather they sought time from the court. Minors also gave
their statements. Plaintiff produced documentary evidence before the Court which
is exhibited as 1- 3 (Ga).

Issues no. 1-3

As all the issues are interrelated to one another, so they are taken up together for
the sake of convenience in discussion and decision and avoiding the repetition of
the same discussion.

I have gone through the entire record, looked into the oral and documentary
evidence adduced by the parties and also considered the submission made by the
learned lawyers of both sides in course of their argument before the Court.

Now, in the midst of the piece of evidence oral and documentary evidence on
record, let us scan, analyze, evaluate and see how far the parties to this suit have
succeeded in proving their respective cases.

On perusal of the record, evidence led by both the parties and also the documents
appended with the record, it is admitted that there was a marriage between plaintiff
and defendant, which was solemnized 2004 according to the Islamic Shariat. It is

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also admitted fact that out of their wedlock the concerned minor daughter was
born. Further admitted fact is that their martial tie was dissolved by divorce. It is
also found that minor daughter now is in the custody of the defendant. Here in the
suit plaintiff is the father and defendant is the mother of minor daughter.

Whenever there is a dispute between a father and a mother for the custody of their
minor children, the court is called upon to give its serious and anxious
consideration as to who should be entitled to the custody of the minor considering
his/her "welfare"," "benefit" and "interest".

The right of custody of the minor is known as "Hizanat" and the right of the
mother to custody of the minor is known as "Hidana" (Encylopedia of Islam 111
Revised Edition 16). "Hidana is also known as "hazina" i.e the female of hazin or
perdaughter entitled to the hizanat or custody. The "hizana" says the Tanwir-Ul-
Absar, "is the woman to whom belongs the rearing up of a child". "The mother is
of all perdaughter", says the FatawaiAlamgir is' a distinguished classical
compilations on Sunni Law "the best entitled to the custody of her infant children
during the connubial relationship as well as after its dissolution" (Fatawai
'Alamgiri" Volume 1, page 728.) Radd-Ul-Muhtar Volume II. Page 1042, an
extremely valuable and authoritative work on Mohammadan Law states: "The
right of the mother to the custody of her child is established whether she be a
Moslemah or Kitabia or a Majoosia and even though she be separated from her
husband. But it does not belong to one who is an apostate". Principle stated in DF
Mulla's Principles of Mahomedan Law" is as follows:

"352. Right of mother to custody of infant children. The mother is entitled to the
custody (hizanat) of her male child until he has completed the age of seven years
and of her female child until she has attained puberty. The right continues though
she is divorced by the father of the child, unless she marries a second husband in
which case the custody belongs to the father".

The Mahomedan Law supports the mother's natural right to the custody of her
children and allows it to take precedence of the paternal right for a specified time
in up to the age of seven years.

The right of hizanat (custody) according to all the schools is lost—

"(1) by the subsequent marriage of the hazina, with a perdaughter not related to the
infant within the prohibited degrees;

(2) by her misconduct;

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(3) by her changing her domicile so as to prevent the father or tutor from
exercising the .necessary supervision over the child; and

(4) by her abjuration of Islam.

(5) by her neglect of or cruelty to the child."

Thus it is seen that the right to custody of the infant children belongs to the mother
and nothing can take it away from her except the conditions stated above.

In this context it is also, to be remembered that all the Rules of Muslim Law
relating to the custody (hizanat) of the minor are merely the application of the
principle of "benefit" and "welfare" of the minor. "Welfare" of the minor remains
the dominant consideration and the rules only try to give effect to what is minor's
"welfare" from the Muslim point of view. Therefore, when the Muslim
perdaughteral law gives the custody of the minor to the mother, it is presumed that
the welfare of the minor is with the mother unless facts leading to a contrary
inference are proved.

In the instant suit, the custody battle in the one side is the father of minor and other
side is the mother. In the matter of appointment of a custodian of a minor, the
welfare of the minor shall be the paramount consideration. Paramount
consideration necessarily implies that all other considerations are subordinate to
the welfare of the minor. This means that the consideration that the father is not
unfit to be the guardian of his child is also a consideration subordinate to the
welfare of the minor.

Keeping in view the aforesaid principles of law, the question before this Court is
required to be determined. Therefore, the factual aspects of this case may be taken
into consideration. In order to considering the factual aspects of the case;
therefore, it is necessary to evaluate the oral evidence only as both plaintiff and
defendant did not produce any documentary evidence before Court. Plaintiff as
P.W.1 deposed before the court in order to substantiate his claim. On perusal of
evidence of P.W.1 it appears that marriage between them was solemnized and out
of their wedlock the concerned minor daughter was born. It is further found that
the concerned minor is in the custody of the defendant-mother. PW 1 said that he
married another woman. He said defendant has illicit relation with one Mosharaff
though he has not said it in his plaint. He denied the relation with Ripa whose
husband is Mr. Forhad. But Ripa is not his second wife.

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From the evidence of both sides as stated above it is found that marital tie between
plaintiff and defendant was dissolved by divorce. But after divorce, defendant does
not marry second time though in deposition of PW 1 claimed that defendant has .
It is seen from the record and evidences that defendant after divorce rear up the
minor and no faults or any other things has not been established by the plaintiff
that the minor is not in a well condition in the custody of the defendant. Court took
the opinion of the minor where the said minor expressed their desire to stay in his
mother’s custody. Further it is found that in the father took second wife. So the
present minor will not feel friendly atmosphere in presence of his step-mother.
Thus the welfare of the minor lies in the custody of the defendant-mother not
plaintiff-father.

In the instant suit, on perusal of plaint and evidence of plaintiff it appears that the
only thing which prompted the plaintiff to filed this present suit when he was
debarred to visit to the minor. In the instant suit, the visitation must be given just
for their minor daughter’s welfare. Men are not infallible and the general tendency
of men is to commit error. The defendant is the natural guardian of the concerned
minor. So he has the right to visitation regarding the concerned minor. If he is not
allowed to visit his daughter, than the daughter will be built up without father’s
affection. At certain stage when the minor daughter knew that he has father, then
his mind will be in questioned that why his father was away from him and why he
did not look after him? This type of thinking of concerned minor daughter
sometimes may lead to the disastrous effect on his life definitely. And he will be
hold psychology against his father which also traumatized his life. Moreover, the
plaintiff-father had not done any acts which are very detrimental to the concerned
daughter. Considering the aspects made above I am of the opinion that though the
suit be dismissed for custody but may be allowed to give the right to visitation of
concerned minor daughter.

It is also found that the minor daughter now is a student. So visitation right must
be given with some conditions which in no way are harmful for minor’s life and
education. The defendant after filing of the suit to date of delivery of judgment
visits the minor in the court premises. But after judgment, it is not possible to him
to visit the minor. Considering the facts and circumstances of the case the right to
visitation of the defendant-father is subject to the followings which are given in
the operative portion of this judgment.

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Moreover, in the suit, plaintiff side by evidence or other materials has not been
established any of the ingredients upon which the defendant can loses her right to
custody of the concerned minor daughter. The plaintiff filed this suit. So he is duty
bound to prove his case by producing reliable and convincing evidence before the
Court. In this respect, I am of the opinion that plaintiff has not been able to prove
his case and that’s why he is not entitled to get the custody of the concerned minor
minors.

Considering the facts and circumstances of the case I am of the opinion that the
present custody of the defendant is better than plaintiff and in no way it could be
disturbed and therefore, the suit may be dismissed. But as discussed above, I am
also of the opinion that the visitation rights of plaintiff may be given.

Court fee paid is correct.

Hence

It is Ordered

That the suit be dismissed on contest against the defendant without costs.

The defendant’s visitation right is allowed for the following terms and conditions:-

1. The defendant will have the right to bring his daughter in his residence of
Dhaka on 2nd and 4th Friday of every month for whole day. If defendant has no
permanent residence in Dhaka or if the defendant resides far from minor then
defendant can visit minor in a well-wisher’s house or in a restaurant or in an
amusement park situated within 10 kilometers of minor’s residence. After
completion of visitation the plaintiff must ensure to send the minor in the
defendant custody. On the occasion of Eid or other festival plaintiff can visit
minor at the residence of defendant for one hour only.

2. The defendant will not take the child out of any area which is unknown to
plaintiff.

3. The defendant or plaintiff are debarred to take any attempts such as creating
any better feelings against each other or taught any abusive language against
anyone.

4. The defendant should take care of the child so that he might not be
suffering any diseases or any atmosphere which is detrimental to him. When the

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child is sick, the defendant is debarred of his right to visitation. In that case
plaintiff must notify it to the defendant.

5. The place of visitation will be reserved for the parties because of that they both
mutually choose a place where it is convenient for both of them.

6. Whenever, it is expedient to change the residence of plaintiff, the address of

changed residence must be given to the defendant as per as possible.

Typed and corrected by me

Jahirul Alam

Assistant Judge

3rd Additional Assistant Judge and Family Court No.13 Dhaka.