MD. IJAL UDDIN MUNSHI Vs. MST. ROKEYA KHATUN

JUDGEMENT

(1.) Delay of 273 days is condoned. This petition for Leave to Appeal is directed against the judgment and order dated 05.02.2007 passed by the High Court Division in U.O. No.1101 of 2007 affirming the judgment and order dated 28.09.2006 passed by learned District Judge, Jhenaidah in Family Appeal No.17 of 2006 thereby affirming those dated 06.09.2006 passed by Senior Assistant Judge, Harinakundu, Jhenaidhah in Family Suit No.17 of 2005 allowing the application for D.N.A. test of the plaintiffs and defendant filed by the plaintiffs.

(2.) The facts of the case, in short, are that the plaintiff filed Family Suit No.17 of 2005 before the Assistant Judge, Harinakundu on 26.05.2005 against the petitioner. The defendant and the plaintiff are of same village. The plaintiff No.1, Rokeya Khatun married defendant, Izaluddin before 16 years at a dower of TK. 30,000.00 according to the Muslim Sariah. After their marriage while living as husband and wife daughter-plaintiff No. 2, Sheuli Khatun was born out of the said wedlock. After birth of the plaintiff No. 2 defendant neglected both of them. The cause of action for the suit arose on 15.04.2005 corresponding to 2nd Baishakh, 1412 B.S. on Friday at 10 A.M. the defendant went to the house of brother of the plaintiff No. 1 for a visit and plaintiff No.1 demanded maintenance for her daughter at a rate of TK. 1,000.00 per month and TK.2, 000.00 per month for herself from the defendant. The plaintiff No.1 also claimed unpaid dower of TK.30, 000.00 from the defendant. Defendant refused to pay the dower and maintenance claimed by the plaintiff No.1. Therefore, the plaintiffs filed the suit for dower and maintenance.

(3.) The defendant contested the suit by filing written statement denying all the material allegations stating, inter alia, that there was no cause of action for the suit; that the suit was not maintainable and the suit was barred by principle of estoppels, waiver and res judicata. Plaintiff No.1 was not a wife of the defendant and as such, she has no right to claim dower and maintenance. The defendant did not marry plaintiff No.1 according to Muslim Shariah at a dower of TK.30, 000.00. Plaintiff No.2 was not born during the existence of wedlock between the defendant and plaintiff No.1. The plaintiff No.1 was never married to the defendant and she is not a wife of defendant No.1 at all. The plaintiff filed the false case only for harassing the defendant. The mother of the plaintiff No.1 is a beggar. She has maintained herself through begging. Plaintiff No.1 lives by earning of immoral acts and the plaintiff No.1 has no social dignity. She lives on doing unsocial and immoral acts and as collaborator of miscreants.