IRFAN SAYED (MD) Vs. RUKSHANA MATIN

JUDGEMENT

(1.) This appeal by plaintiff appellant is directed against the judgment and order dated 5.4.95 passed by a Single Judge of the High Court Division in Civil Revision No.4002 of 1994 rejecting the plaint of Title Suit No. 354 of 1994 after setting aside the judgment and order dated 23.11.1994 passed by the Senior Assistant Judge, 5th Court, Dhaka refusing to reject the plaint under Order 7 rule 11 of the Code of Civil Procedure.

(2.) The plaintiff instituted the Title Suit praying for a decree for mandatory injunction directing the defendants to send his minor son Md. Ibraaz Syed to his residence at No. 405 E, Road No. 27 (Old), Dhanmondi Residential Area, PS Dhanmondi, Dhaka in terms of the agreement dated 21.8.94 entered into by and between the plaintiff and defendant-respondent No.1, inter alia, on the averments as under.

(3.) The plaintiff married defendant No.1 on January 10,1991 and they were blessed with a male-child on 24.11.91, who was named Md. Ibraaz Syeed, subsequent thereto the plaintiff left for the United States of America on 3.12.92 for higher studies and after successful completion of his studies he returned home on May 31, 1994. During his absence from Bangladesh defendant No.1 together with her minor child were staying at the residence of her parents namely, defendant Nos. 2 and 3. Plaintiff after his return visited his minor son only on 3 occasions in the house of defendant No.1 Then on 6.6.1994 when the plaintiff again went to see his minor son in that house, he was not allowed to see the child. Rather, defendant No.1 insulted him. Since 1.6.94 defendant No.1 did not allow the plaintiff and any member of his family to see the child. She did not also send the child to the house of the plaintiff to enable him and other members of his family to see the minor child. Thereafter defendant No.1 sent a notice to the plaintiff informing that she dissolved the marriage exercising her delegated power of divorce and to the same effect she also sent notice to the Mayor of the Dhaka City Corporation in accordance with the provisions of the Muslim Family Laws Ordinance, 1961. In such circumstances on the intervention of the common relations, friends and their lawyers a written agreement was made and executed by and between the plaintiff as First Party and Defendant No.1 as Second Party on 21.8.94, of which paragraph 4 reads as follows: (4) The parties hereto agree that the care and custody of the child will now belong to Second Party according to her rights under the law, provided, however, that the First Party shall have visiting rights as mentioned herein. Such visiting rights of the first party shall be exercised by the First Party by having the child sent over to his residence at 405E, Road No. 27 (Old) Dhanmondi Residential Area, Dhaka three days a week for about 3 hours each time as follows by the Second party in her transport: