District: Dhaka

In the Supreme Court of Bangladesh

High Court Division

(Civil Revisional Jurisdiction)

Present

Mr. Justice Md. Zakir Hossain

Civil Revision No. 267 of 2023 Saima Haque

....... Defendant-Appellant-Petitioner -Versus-

Md. Sharif Mahmud Apu

......Plaintiff-Respondent-Opposite Party

Ms. Fawzia Karim Firoz, Senior Advocate with Mr. Quazi Maruful Alam, Advocate

...... For the petitioner Mr. Jyotirmoy Barua, Advocate

....... For the opposite party

Heard on:14.11.2023 & 05.12.2023 Judgment on: 12.02.2024

At the instance of the petitioner, the Rule was issued by this Court with the following terms:

“Records of the case be called for

Let a Rule be issued calling upon the opposite

party to show cause as to why the judgment and

order dated 19.01.2023 passed by the learned

Senior District Judge, Dhaka in Family Appeal

No. 03 of 2023 dismissing the appeal summarily

and thereby affirming the judgment and decree

dated 24.11.2022 (decree being drawn on 27.11.2022) passed by the learned 3rd Additional

Assistant Judge and Judge of the Family Court,

Dhaka in Family Suit No. 740 of 2021 shall not be

set aside and/or such other or further order or

orders passed as to this Court may seem fit and proper.”

Facts leading to the issuance of the Rule are inter alia that the opposite party being plaintiff instituted Family Suit No. 759 of 2019 for the custody of the minor child Md. Sarim Sharif which was later on renumbered as Family Suit No. 08 of 2020 and thereafter, it was again renumbered as Family Suit No. 740 of 2021. The plaintiff’s case, in short, is that as per Islami Shariah, the marriage of the plaintiff and the defendant was solemnized on 25.01.2013 and the dower money was fixed as Tk. 10,00,001/-. From their wedlock, a son namely Md. Sarim Sharif was born on 31.05.2014. By a short span of time, their marital relation has been tainted due to many worldly affairs and eventually, the marital relation between the petitioner and the opposite party came to end. Thereafter, the opposite party filed the aforesaid suit for the custody of the minor child. The defendant (mother) also filed the Family Suit No. 441 of 2021 for the custody of the minor child. The defendant by filing written statement denied the material allegations set out in the plaint contending inter alia that after marriage, the plaintiff tortured her both physically and mentally and eventually, the marital relation has been come to end. Her further contention is that she is entitled to get the custody of the minor child and the minor child was handed over to the petitioner as per the order of the High Court Division passed in Writ Petition No. 9002 of 2018. The specific case of the defendant is that after divorce, the plaintiff-father got married for the second time and the welfare of the minor child cannot be preserved in the custody of father, therefore, the mother can be appointed as guardian.

On the pleadings, the learned Judge of the Family Court framed the following issues:

1. Is the suit maintainable in its present form?
2. Is the plaintiff-father is entitled to custody of the minor son? After conclusion of the trial, the learned Judge of the Family

Court decreed the suit which was filed by the father and as such, gave the custody (hizanat) of the minor son to his father and thereby rejected the prayer of the mother to be custodian of the minor child but the learned Judge provided visiting right of the mother. Challenging the legality and propriety of the judgment and decree of the Family Court, the mother being appellant preferred Miscellaneous Appeal No. 03 of 2023 before the Court of the learned Senior District Judge, Dhaka. Upon hearing, the learned Judge of the Appellate Court was pleased to dismiss the appeal summarily. Impugning the judgment and decree of the Appellate Court, the