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Family Law
Abdul Kadir Vs. Salima (1886) 8, Allahabad, 149
“Marriage among Muhammadans is not a sacrament, but purely a civil contract; and though it is solemnized generally with the recitation of certain verses from the Quran, yet the Muhammadan law does not positively prescribe any service peculiar to the occasion.”
Khurshid Bibi Vs. Baboo Muhammad Amin, 19 DLR (SC) 59
“A marriage among Muslims is not sacrament but in nature of a civil contract. Such contract undoubtedly has spiritual and the moral overtones and undertones, but legally in essence, it remains a contract between the parties which can be subject of dissolution for good cause.”
Khodeja Begum & others Vs. Md Sadek Sarkar, 50 DLR 181
“Muslim marriage is a social contract and not a sacrament between a man and a woman followed by recitations from the Holy Quran. The relationship between the spouses is based in the concepts of social justice and adjustments.”
Hefzur Rahman Vs. Shamsun Nahar Begum and another, 4 BLC (AD) 14
“Marriage in Islam is a contract both religious and social in nature and after the contract ends nothing remains except consequential benefits.”
Asha B.V. Kadir B., (1909) 33 Mad 22
“Marriage is contract between parties to live as husband and wife for term of their lives.”
Abdullah Vs. Rokeya Khatoon (1969) 21 DLR 213
“Section 5 of the Muslim Family Law Ordinance makes it absolutely necessary that the marriage solemnized under the Muslim Law shall be registered. The solemnization of marriage if validly effected might not be affected for non-registration of the marriage. But the non-registration of the marriage causes a doubt on the solemnization of the marriage itself. It is to be mentioned here that solemnization of marriage by swearing an affidavit before Magistrate or Notary Public does not itself constitute a valid marriage without ijab and kabul in presence of two witnesses as per Muslim Law.”
Abdullah Vs. Rokeya Khatoon (1969) 21 DLR 213
“…affidavit is a unilateral document and it does not reveal that a proposal was made by one and it was accepted by the other in presence of two witnesses as prescribed by the Muslim law.”
Jesmin Sultana Vs. Md. Elias 2 BLC 233
“Although section 6 of the Ordinance does not declare the second as illegal or invalid and it only prescribes a penal provision for violating it but the expression of the Holy Quran by the words “be able to deal justly” is the condition precedent to marry more than one woman which implies equality in love and affection and such equality being impossible in the weakness of human nature, the permission to take another wife amounts, virtually to a prohibition for which section 6 of the Ordinance is against the principle of Islamic Law.”
Dilruba Aktar Vs. AHM Mohsin 55 DLR 568
“Talaq in any form shall not stand effective and Talaq shall not be Talaq in the eye of law unless provision 7(1) is sternly complied with and in the event of subsistence of existing marriage no man can enter second marriage and if he enters he shall contribute himself to be punished under section 6(5) of the Ordinance. … in the absence of documentation of permission obtained by the accused-respondent from the Arbitration Council the inevitable conclusion is that the accused-respondent entered contract for second marriage without previous permission of the Arbitration Council and the offence under section 6(5) of the Ordinance 1961 had been committed and he may be fastened with guilt and complainant-appellant could successfully bring home charge against accused-respondent to the hilt.”
Mizanur Rahman Vs. Surma Khatun 50 DLR 559
“The plea of the husband at revisional stage that there was no Union Parishad or Chairman to seek permission for second marriage at the relevant time cannot be sustained in the absence of any evidence.”
Makbul Ali Vs. Manwara Begum 39 DLR 181
“The woman who is married by the husband without permission, during the existence of other wife, is not liable for any offence.”
Amena Khatun & others Vs. Munshi Mia 12 DLR 309
“Before conviction can be made under section 494 PC a valid marriage must be legally proved to have taken place and it is essential in Mohmmadan marriage that the proposal and acceptance should be expressed at the same meeting in the presence of witness before it can be declared that anyone is lawfully married.”
Bashir and others V. Ilam Din and others, PLD 1988 SC 8
“Muslim Law presumes in favour of marriage in the absence of direct evidence on the point provided, however, evidence exists to show that a man and a woman have lived together as man and wife for a long time”.
Abdul Bashar Howlader Vs. State 1994 BLD (AD) 185
“Dowry” as defined in section 2 of the Act contains four ingredients: 1. It has to be any property or valuable security; 2. It has to be given or agreed to be given either directly or indirectly by the parties mentioned in clause (a) or (b); 3. It has to be given or agreed to be given at the time of marriage or at any time before or after the marriage; and 4. It must be as a consideration for the marriage.”
Atiqul Huque Chowdhury Vs. Shahana Rahim and another 47 DLR 301
“Dower in a Muslim marriage forms an inseparable part of the terms of the Kabinnamah and thus as the Kabinnamah is intended to be registered under the 1974 Act, so is the dower. The Act of 1974 is in force relating to the registration of Muslim marriages including dower.”
Babee Bachun Vs. Shiekh Hamid (1871) 14 MIA 377: 383-384
“The dower ranks as a debt, and the widow is entitled, along with other creditors of her deceased husband, to have it satisfied on his death out of his estate. Her right, however, is no greater than that of any unsecured creditor; except that she has a right of retention of possession of her husband’s property until her dower is satisfied. She is not entitled to any charge on her husband’s property though such a charge may be created by agreement.”
Nuruddin Ahmed Vs. Masuda Khanam (1957) 9 DLR 8
“Prompt dower may be considered a debt, always due and demandable and payable upon demand, and, therefore, upon a clear and unambiguous demand and refusal a cause of action would accrue.”
Shah Banu Begum Vs. Iftikhar Md. Khan (1956) 8 DLR (WP) 133
“Where the wife felt that possible way to win or retain the affection of the husband was to act on his suggestion and to remit the dower amount and did, in fact, as a result for his persuasion, relinquish her dower in his favour, she cannot be said to have acted as free agent and it would be inequitous to hold that a woman who remits dower in such circumstances is bound by it.”
Jesmin Sultana Vs. Md. Elias 2 BLC 233
“As the Holy Quran and Hadith of Allah’s Apostle (SM) prescribe for giving dower the Court has no right to reduce the prompt dower unless the wife remits it voluntarily.”
Jamila Khatun Vs. Rustom Ali 48 DLR (AD) 110 that
“Under section 5 of the Ordinance of 1985 it is not only the wife who can file a suit in a Family Court for her own maintenance but also for the maintenance of her child. It is not correct to say that all six subjects mentioned in section 5 relate to suits exclusively between husband and wife.”
Saleha Begum Vs. Kamal Hossain 50 DLR 180
“Under the Family Courts Ordinance not only the wife is permitted to file a suit in the Family Court for her maintenance- she can also claim maintenance for her child in the same suit. It was not necessary for the child to file a suit for maintenance himself or to become a co-plaintiff with his mother in suit.”
Bazlur Rahman Sikder Vs. Taher Begum Shamima 50 DLR 612
“Even if the children prefer to live with their mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children.”
Abdul Aziz Vs. Sonia Pervin Liza reported in the 58 DLR (2006) 583
“Under section 5 of Ordinance of 1985, it is not only the wife who can file suit in Family Court for her own maintenance but her children can also claim past maintenance if the children are not maintained by the father.”
Jamila Khatun Vs. Rustom Ali 48 DLR (AD) 110
“Children in easy circumstances under Mohammadan Law are bound to maintain their poor parents, although the latter may be to earn something for themselves. These poor parents may also file a suit in Family Court for maintenance fro their opulent children. Similarly, poor or disabled relatives, even servants of the wife can maintain a suit for maintenance under the Ordinance of 1985 under circumstances enjoined by Mohammadan Law.”
Abdul Aziz Vs. Rezia Khatoon, (1969) 21 DLR 733
“Once written notice of the pronouncement of a talaq in terms of sub-section (1) of section 7 is delivered to the Chairman, the talaq that is otherwise valid, will be effective after the expiry of the ninety days of the delivery of such notice or if the wife be pregnant at the time of the pronouncement of a talaq till the pregnancy ends. Thus, so far as talaqs are concerned the Arbitration Council has no function except to take steps to bring about reconciliation between the parties; beyond this the Arbitration Council has noting to do with this matter.”
Abdus Sobhan Sarkar Vs. Md. Abdul Ghani (1973) 25 DLR 227
“It will appear that while a party has to ‘apply’ to the Chairman for matter dealt with in sections 6 and 9 of the Muslim Family Laws Ordinance, section 7 requires only a notice of a talaq to be given to the Chairman. It will further appear that section 7 requires the Arbitration Council neither to decide nor to determine anything upon such notice, though section 6 requires the Arbitration Council to ‘decide’ a husband’s application for permission to contract another marriage during the subsistence of an existing marriage and record reasons for its ‘decision’ and section 9 requires the Arbitration Council to ‘determine’ the matter upon an application by a wife for maintenance. It will also appear that although sub-section (4) of section 7 provides that within thirty days of the receipt of written notice of pronouncement of a talaq the Chairman is required to constitute an Arbitration Council, which is to take all steps necessary for reconciliation, nothing has been said in the section or anywhere else in the Act providing as to what will happen if upon receipt of such written notice of the talaq the Chairman does not constitute an Arbitration Council and does not take any step to bring about reconciliation between the parties. Failure of the Chairman to constitute an Arbitration Council or that of a duly constituted Arbitration Council to take necessary steps to bring about reconciliation is the thus inconsequential.”
Mst. Daulan Vs. Dosa (1956) 8 DLR (WP) 77
“The option of puberty under Muslim Law is only a right giving to minor wife to avoid the marriage contract, entered into by her guardian on becoming sui juris.”
Mst. Ghulam Sakhina Vs. Umar Bakhsh (1964) 16 DLR (SC) 389
“The main distinction between a ‘khula’ and ‘mubaraat’ is that in the former the aversion is on the side of the wife and she desires a separation but in the latter the aversion is mutual and both side desire separation. Secondly, in a divorce by ‘khula’ some consideration must be given by the wife to the husband for her release form the marital tie. It is in effect an offer from the wife for her release of payment of compensation.”
Sheerin Alam Chowdhury Vs. Captain Shamsul Alam Chowdhury 48 DLR 79
“If it so appears that the husband and wife cannot live together in peace and amity and the wife offers consideration for dissolution of the marriage she is entitled to get it dissolved by way of ‘Khula’.”
Mvi Rehanuddin Vs. Azizun Nahar (1981) 33 DLR 139
“Though the mother has a right to hizanat, the father is the natural guardian and entitled to exercise control and supervision over the child and if the father is unable to exercise his control the mother loses her right to custody.”
Imambandi Vs. Mutsaddi (1918) 45 IA 73: 83-84
“It is perfectly clear that under Mahomedan law the mother is entitled only to the custody of the person of her minor child up to a certain age according to the sex of the child. But she is not the natural guardian, the father alone, or if he be dead, his executor (under the Sunni law) is the legal guardian.”
Ahmed Nawaz Vs. State (1968) 20 DLR (WP) 45
“Under Muslim Law the father is the legal guardian of the minor children. The legal guardian has in law constructive custody of the minor children. He can also claim that he bonafide believed himself entitled to their custody and thus not guilty of kidnapping his own children when he removes them from the hizanat of the minor.”
Muhd. Latif Vs. Akbar Ali (1969) 21 DLR (WP) 104
“Married minor girl’s detention by husband without consent of person legally entitled to her custody is illegal.”
Johara Begum Vs. Maimuna Khatun (1964) 16 DLR 695
“If in a fit case the Courts find that the person of a minor girl will be better looked after and cared for by the mother even though the mother takes a second husband after the death of the minor’s father, who is not related to the minor within the prohibited degrees and that her property will be better looked after by the deceased father’s mother, then the Court may prefer the mother as the guardian of the person and the father’s mother as the guardian of the property of the minor.”
Abdul Jalil and others Vs. Sharon Laily Begum Jalil, 50 DLR (AD) 55
“Nothing is more paramount, not even the rights of the parties under the rules of personal law or statutory provisions, than the welfare of the children which must be the determining factor in deciding the question of custody of children whether in a proceeding in the nature of habeas corpus or in a proceeding for guardianship under the Guardians and Wards Act, 1890.”
Abu Baker Siddique Vs. SMA Bakar, 38 DLR (AD) 106
“Where it was held that “If circumstances existed which justified the deprivation of a party of the custody of his child to whose custody he was entitled under Muslim Law, Courts did not hesitate to do so.”
Nelly Zaman Vs. Giasuddin 34 DLR 221
“[…] the unilateral plea of the husband for forcible restitution of conjugal rights as against the wife unwilling to live with her husband has become outmoded and does not fit in with the accepted state and public principle and policy of equality of men and women being citizens equal before law entitled to equal protection of law and to be treated only in accordance with law as guaranteed in Articles 27 and 31 of the Constitution of Bangladesh.
A reference to Article 28(2) of the Constitution of Bangladesh guaranteeing equal rights of women and men in all sphere of the state and public life would clearly indicate that any unilateral plea of husband for forcible restitution of conjugal rights as against a wife unwilling to live with her husband is violation of the accepted state and public principle and policy.”
Sheerin Alam Chowdhury Vs. Captain Shamsul Alam Chowdhury 48 DLR 79
“The Court’s decree that it is wholly up to the wishes of the wife to have or have not conjugal life with the husband is a concept contrary to the Islamic tenet of marital relationship.”