Validity of Partition Suit to Realize Dower in Bangladesh: Shadrul Huq -V- Farhana Firdousi
Muslim marriage is a contract where dower is the right of the wife and an obligation upon the husband. Dower is a kind of consideration the definition of which has been interpreted in different ways at different times to address different situations. At times, the husbands abandon their wives and tend to not render their dues to the wives. Again, there are times, husbands promise of transferring immovable property in the name of wife as a means of payment of dower.
In such situations, critical questions arise whether such transfers are valid or not and whether anyone else (parents, brother & relatives) of the husband can undertake the liability of paying off such dower. In case the wife is not given possession of such property, then which court’s jurisdiction will be invoked is a pivotal question.
In First Appeal No.207 of 2013, the respondent, as plaintiff, filed the Title Suit No. 14 of 2009 before the Second Court of Joint District Judge, Shunamganj seeking a decree of partition in respect of properties promised against Dower. In the present case, the husband left the wife and stopped all the communication and did not pay the dower as fixed during the wedding.
The wife, i.e., the plaintiff respondent, approached the defendant appellant i.e., the parents of the husband and filed a partition suit seeking Saham against the promised dower.
The lower court decreed in favor of the plaintiff respondent and gave saham of the said property. Being aggrieved the defendant appellant preferred this appeal.
The point of contentions was whether the father of the husband can be held responsible for payment of such dower. Because marriage is a contract and only husband and wife are the party to such contract and the defendant appellant only acted as witness who denied any promise such made. Considering the religious sensitivity of the matter, the Court requested two Islamic scholars to act as amicus curiae.
Both of the religious scholar gave detailed interpretation and according to them any property or valuables, which are valid in Islam, may take the form of dower and anyone can undertake to pay or transfer such dower. The religious scholars further added that considering this aspect, Clause 16 of the kabinnama had been incorporated. So, the court held that the Defendant appellant, i.e the father of the husband is allowed to make such transfer in favor of the daughter-in-law and such transfer would be valid.
However, the court was of the opinion that the forum chosen by the plaintiff respondent to realize the dower was not proper. Because, our country has special law, namely Family Courts Ordinance, 1985, the provisions of which shall have effect since it’s a special law and the plaintiff respondent should have filed the suit before the Family Court established under Section 4 of the said ordinance.
The learned court permitted the plaintiff respondent to withdraw the suit and initiate a fresh suit seeking a decree of dower in respect of the same land before the Family Court concerned under the Family Courts Ordinance, 1985.
By Bangladesh Law Partners BDLP, Bangladesh
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Law Firm Website: https://www.bdlplaw.com
Call +880 1714-404050
ABOUT THE AUTHOR: Ms. Tanjina Rahman
Ms. Rahman is an Associate BDLP - Bangladesh Law Partners
Copyright Bangladesh Law Partners BDLP
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