ELIAS (MD) Vs. JESMIN SULTANA

JUDGEMENT

(1.) This petition by the defendant-husband which arises out of a Family Suit, No.35 of 1993, of the Court of Assistant Judge and Family Court, Mirsarai, Chittagong for prompt dower and maintenance allowance filed by the respondent-wife is barred by 649 days and we are going to dismiss this petition as time-barred but not before we express ourselves against part of the impugned judgment dealing with polygamy in Islam and recommending amendment in the Muslim Family Laws Ordinance, 1961 (Ordinance No.VIII of 1961) prohibiting polygamy which was totally irrelevant for a decision in the matter.

(2.) The trial Court decreed Taka 60,000.00 as prompt dower, Taka 4,500.00 as maintenance allowance and further Taka 500.00 per month for the same purpose. On appeal, however, the amount of prompt dower was reduced to Taka 40,000.00 whereupon the respondent took a revision, Civil Revision No.4591 of 1995, against the appellate judgment and decree. A Division Bench, by the impugned judgment and order dated 26 November 1996 disapproved the reduction of the amount of prompt dower and restored the decree as passed by the trial Court.

(3.) In course of the hearing of the matter the High Court Division noticed that the defendant- husband had filed an application to the Chairman of the Local Union Council seeking permission under section 6 of the aforesaid Ordinance to take a second wife alleging that the present wife, namely, the plaintiff was sick and incapable of performing conjugal relationship. The learned Judges observed that section 6 of the Ordinance prohibits contracting of a second marriage during the subsistence of an existing marriage without the previous permission of the Arbitration Council but it does not declare the second marriage as illegal or invalid but only prescribes for punishment of violation of the said section. Then the learned Judges observed: We, therefore, find it necessary to examine the issue as to whether Islam truly approves polygamy or more properly speaking, polygyny. The learned Judges themselves noticed that there had been great difference of opinion regarding this issue since long and then embarked upon a legal monologue referring to the Holy Quran and the hadith and finally came out with a recommendation that section 6 of the aforesaid Ordinance be deleted and substituted by a section prohibiting polygamy. A copy of the judgment was directed to be sent to the Ministry of Law.