RABEYA KHATUN Vs. MRS. TASLIMA HASAN

JUDGEMENT

(1.) This appeal is directed against judgment and decree dated 09.08.2011 passed in Title Suit No. 383 of 2006 by the Learned Joint District Judge, 3rd Court, Dhaka. In the said Title Suit, plaintiff has prayed for a declaration that the marriage vide registered Nikha Nama No. SL 166 Page-12 dated 18.08.1995 as well as the relationship between the plaintiff and her husband Late Manzar Hasan as husband and wife subsisted till his death on 24.04.2005 including some other reliefs.

(2.) The plaintiffs case in a nutshell is that the cause of action for filing the suit by the plaintiff-respondent arose on 29.11.2005 when the defendantappellants filed a succession case being no.1263 of 2005 in the court of Joint District Judge, 3rd Court, Dhaka by suppressing actual facts, and subsequently the succession case was allowed and being aggrieved by and dissatisfied with the same, the plaintiff filed a Revocation Miscellaneous Case being no. 46 of 2006 for cancellation of succession certificate, and, thereafter, the Title Suit and the Miscellaneous Case were heard analogously and disposed of by a single judgment decreeing the suit and allowing the Revocation Miscellaneous Case.

(3.) The plaintiff stated in her plaint that she got married to the deceased Manzar Hasan on 18th August, 1995 and was leading normal conjugal life. The deceased Manzar Hasan was an executive at DUNCAN BROTHERS LTD, and at the cost of the said company, the plaintiff and deceased Manzar Hasan enjoyed several benefits as a couple including travelling abroad. During his life time Manzar Hasan by swearing an Affidavit adopted the plaintiffs son, namely Tanzim Hasan through her first husband and even during their travels abroad the plaintiff and the deceased Manzar Hasan were also accompanied by their only son Mr. Tanzim Hasan and the plaintiff states in the plaint that she had continued her marital life and performed her marital obligations and lived together as husband and wife till death of her husband Manzar Hasan. As an adopted son of Manzar Hasan, the plaintiffs son was also granted the stipend by DUNCAN BROTHERS (BD) LTD. according to their own rules and regulations. The plaintiff lead a happy conjugal life though they had no child was born through her wedlock with Manzar Hasan. The plaintiff states in her plaint that the defendant-appellants on several occasions provoked a discord between her husband and herself to disturb their conjugal life on various pretexts and also tried to influence the deceased to revoke his adoption of the plaintiffs son and after their return from a pleasure trip abroad, arising out of a certain incident an altercation took place between the deceased and the plaintiff which was personal in nature and which caused the plaintiff agony and following the altercation in her mental agony she went to consult an Advocate namely Mr. Shah Alam on 20.11.2002 and discussed with him about a certain matter and asked the Advocate to send a notice to Manzar Hasan on his behalf. She also states that she never went to any Notary Public for swearing Affidavit on divorce and the signature of the Witness No. 1 in the Affidavit was forged and Witness No.2 is unknown to her and she never instructed the lawyer to draft any Affidavit of divorce and send it to Municipal Corporation and no notice of such Affidavit was ever served to deceased Manzar Hasan or to the Nikah Registrar for registration. She states that following her visit to the Advocate she returned home and resumed her conjugal life normally with her husband. After about 1 and months the deceased husband received a notice under the Muslim Family Laws Ordinance, 1961 from the office of Municipal Corporation. After receiving the same, both the plaintiff and her deceased husband were surprised with the contents of the notice which was regarding a proceeding taken up by the Municipal Corporation. Suspecting a conspiracy to jeopardize their happy, conjugal life and suspecting that the defendant no. 1-6 conspired collusively to start a conciliation proceeding on 24.12.2002 being Arbitration Case No. 2825 of 2002 but that the order No.1 dated 24.12.2002 does not speak anything upon the basis of which the conciliation proceeding was started, and there is also nothing on record to show that under the provision of Muslim Marriages and Divorce (Registration) Act, 1974 and the rules thereunder framed in 1975 that any registered Talaknama was ever placed before the Chairman of the alleged Conciliation Board. It is also stated in the plaint that the arbitration proceeding is illegal, malafide and without jurisdiction. That pursuant to this notice from the Municipal Corporation the plaintiff and the deceased husband Manzar Hasan also sought advice from a senior lawyer on the issue who advised them that the conciliation case being initiated without any proper legal document, which is without jurisdiction and has no legal effect and was not binding upon them. Moreover, the alleged proceeding was disposed of with a finding on 27.02.2003 and that finding was not in accordance with law, because registration of Talaq-i-tafweez in the office of the Nika Registrar is compulsory, and the alleged Affidavit by way of unilateral declaration has no value in the eye of law. Being so advised and assured by a senior lawyer that it was not necessary to proceed further on the issue, they continued to live together as husband and wife and subsequently after this incident the plaintiff performed her marital duties with all marital obligations including accompanying the deceased to India for the purpose of treatment of her deceased husband Manzar Hasan.