High Court Division
(Civil Revisional Jurisdiction)
Md Emdadul Huq J
Beautiful Bibi ……..
……………….. Petitioner
vs
Md Sydur Rahman ……..
………… Opposite Party*
Judgment
May 19th, 2014.
Family Courts Ordinance (XVIII of 1985)
Section 5
DNA Test-DNA test report prepared by the Government DNA Laboratory is a credible evidence. The conclusion of the report is consistent with the admitted birth of the child during continuance of the marriage and also with the statements of the PWs that the child was born with 10/11 months after solemnization of the registration.
Although the fact of solemnization of the marriage before registration was not stated in the plaint, the statement of the PW’s on this aspect are definitively corroborated by the independent and credible evidence as recorded in the DNA test Report. So the evidence the PWs about solemnization of the marriage before registration are relevant, admissible and credible evidence. ……(63&64)
Family Courts Ordinance (XVIII of 1985)
Section 5(1)( d)
Legitimate Child-The child was born out of the wedlock between the plaintiff and the defendant and the resultant physical relationship. The child is legitimate son of the defendant. Consequently he is entitled to maintenance from the defendant. . .. (65)
Evidence Act (1 of 1872)
Section 60
In directing a DNA test courts must be cautious about the probable result of a DNA test exposing a child to a socially deplorable condition as a bastard child…(6l & 62)
DNA Test
The DNA test, for the purpose of identification of parentage and of individuals, is relatively a new technology in this country and not used frequently. But it has been accepted worldwide as a reliable scientific method for various purposes including determination of parentage. . ….. (54)
Pre-marital Relationship
Pre-marital relationship, whether physical or otherwise, between unmarried Couple is a sensitive issue in this country because of the restrictions of the rules of religion and people have general tendency to suppress it unless compelled. . ….. (51)
Code of Civil Procedure (V of 1908)
Section 115(1) and Order XLI, rule 27
Additional Evidence-Considering the exceptional nature of the dispute, and the principle laid down by the Appellate Division the application for additional evidence was allowed for determination of the biological relationship between the child and the defendant. .(20)
Managing Director Janata Bank vs Md Bazlur Rahman, 51 DLR (AD) 141 ref.
Mozahar Hossain, Advocate-For the Petitioner. In CR No.4049/2011
Afsana Rashid, Advocate-For the Petitioner. In CR No. 4153/2012
Abdulla-al-Baki, Advocate-For the Opposite Party.
Judgment
Subject matter of the two Revisions:
These two Civil Revisions arose from the
same judgment and decree dated 3-4-20 II by which the learned Joint District Judge. 2nd Court. Naogaon partly allowed Family Appeal No. 65 of 2010 and thereby modified the judgment and decree dated 2-9-2010 passed by the Family Court, Manda, Naogaon decreeing Family Suit No. 132 of 2008.
2. Plaintiff Mossamat Beautiful Bibi, instituted the suit for realization of her unpaid dower and for the past maintenance for a specific period for herself and her minor son, and also for monthly· maintenance for both.
3. Both the Revisions involve the same issues. So these were heard together and this Judgment will govern both the Revisions.
4. In Civil Revision No. 4153 of 2012, the petitioner (plaintiff) Mossammat Beautiful Bibi alias Beauty has challenged the modification of the decree of the trial court by the appellate Court to the effect that the plaintiffs son Md Biman is not entitled to maintenance, upon a finding that the defendant is not the father of the child Md Biman.
5. In the other Civil Revision, being No. 4049 of 2011, the petitioner being the defendant of the Family Suit Md Sydur Rahman, has challenged the modified decree passed by the appellate court by which he was directed to pay the dower and maintenance to the plaintiff Mossammat Beautiful Bibi.
6. A Rule was issued in both the Revisions about sustainability of the judgment and decree passed by the appellate court.
7. By the Rule issuing order dated 16-10-2011, passed in the said second Revision, operation of the impugned Judgment and decree was stayed for 6(six) months, subject to deposit by the defendant in the trial court a lump amount of Taka 25,000 and also a monthly maintenance of Taka 2,000.
8. The first part of the direction has been complied with, but not the second part. So further extension of the stay order was not allowed.
9. Plaintiffs Case: The plaintiff Mosammat Beautiful Bibi claims that she was married to defendant Md Saydur Rahman in terms of a kabin nama dated 28-12-2006. The dower was fixed at Taka 70,105 out of which Taka 105 was paid as prompt dower. During continuance of the marriage, a son was born to them. But their relationship turned sour when the defendant demanded a dowry Taka 1(one) lakh and started physical torture upon the plaintiff. Ultimately, on 14-4-2007, the defendant ousted the plaintiff and the child from the house. After repeated request, the defendant did not pay the unpaid dower to the plaintiff or any maintenance to the plaintiff and her son. So plaintiff filed the suit for realization of her unpaid dower and also for past maintenance for the period from 14-4-2007 when she and her child were ousted from the house and also for monthly maintenance for herself and the son at the rates of Taka 2,500 and Taka 1,000 respectively.
10. Defendant’s Case: The defendant admits the marriage and the amount of the dower Taka 70,105 and payment of Taka 105 as prompt dower. He also admits registration of the marriage in terms of a kabin nama dated 28-12-2006.
11. However the defendant contends that the child was born only after 3(three) months of the marriage. This fact resulted in a suspicion about the pre-marital pregnancy of the plaintiff. Ultimately he divorced her on 23-4-2007 in a local salish. At that time he paid the entire dower and also the maintenance of the plaintiff for the period of iddat.
12. Proceedings and decision of the courts below:
At the trial, plaintiff produced evidence through four witnesses and the registered kabinnama (Exhibit-I). The defendant produced evidence through three witnesses and produced the certified copy of the complaint of Nari-o-Shishu Niljatan Domon Tribunal Case No. 516 of 2007 (Exhibit-A) instituted by the plaintiff against the defendant and the discharge order dated 18-2-2009 (Exhibit-A) passed in that case.
13. Upon consideration of the evidence on record, the trial Court recorded findings that the marriage was subsisting and that the divorce did not become effective due to non-issuance of any notice to the plaintiff and the Union Parshad Charmane as required by section 7 of the Muslim Family Laws Ordinance, 1961. The trial court further found that the child was born during continuance of the marriage and therefore legitimate.
14. Accordingly the trial court decreed the suit and directed the defendant to pay the unpaid dower of Taka 70,000 and also to pay monthly maintenance to the plaintiff at the rate of Taka 2,500 with effect from 14-7-2007 till dissolution of the marriage. The trial court also directed the defendant to pay monthly maintenance for the child at the rate of Taka 1,000 effective from 14-7-2007 till his attainment of puberty (mvevjKZ¡).
15. The appellate Court after, contested hearing, concurred with the findings of the trial court with regard to subsistence of the marriage and plaintiffs right to get payment of the unpaid dower and also the monthly maintenance of Taka 2500 as fixed by trial Court effective from 14-4-2007.
16. The appellate Court, however, reversed the finding of the trial Court with regard to maintenance of the child and recorded a finding that the marriage took place on 28-12-2006 when the marriage was registered by kabinnama, that the child was born within 6(six) months of the marriage and that defendant was not the father of the child and therefore the child was not entitled to maintenance.
17. Accordingly the appellate court modified the decree of the trial Court.
18. DNA test and additional evidence in Revision:
At the initial stage of the hearing of the two Revisions. the issue of legitimacy of the child Md Biman came up. The plaintiff Beautiful Bibi filed an application for DNA (deoxyribonucleic acid) test of the child Md Biman and also of the defendant Saydur Rahman and for recording additional evidence on the matter.
19. It is noted that the Appellate Division in the Case of Managing Director Janata Bank vs Md Bazlur Rahman [51 DLR (AD) 141] has laid down the principle to be followed in allowing additional evidence in Civil Revision as follows: “the Revisional Court may in appropriate cases consider additional evidence.”
20. So after hearing both sides and considering the exceptional nature of the dispute, and the principle laid down by the Appellate Division in the above noted case the application for additional evidence was allowed by order dated 13-6-2013 for determination of the biological relationship between the child Md Biman and the defendant Saydur Rahman.
21. Accordingly the National Forensic DNA Profiling Laboratory (the DNA Laboratory) of the Dhaka Medical College (DMC) was directed to conduct the DNA test. The DNA Laboratory sent its report dated 27-3-2014.
22. Ms Tania Hossen, the Scientific Officer of the DNA Laboratory was summoned by this Court. She deposed as Court Witness No.1 and proved the forwarding letter sent by Professor Sharif Akhturzzaman (Phd) being the Head of the DNA Laboratory, the DNA test report and an attachment under the title “DNA parentage test:
Technical Issues”. These documents have been marked as Exhibits-X, X(l) and X(2)” respectively.
23. On the date of the deposition of the said witness none appeared for the defendant to cross-examine the witness:
24. Deliberation in Revision:
At the hearing of Revisions, Ms Afsana Rashid, the learned Advocate for the plaintiff, submits that the issues with regard to subsistence of the marriage and plaintiffs entitlement to dower and monthly maintenance have been concurrently decided by the courts below upon consideration of the evidence on record and therefore no interference is necessary in this Revision.
25. Ms Rashid, the learned advocate, next submits that the DNA Test reports, Exhibit- X (series), prove that the defendant is the biological father of the child and therefore the decision of tile trial Court is to be upheld and that of the appellate Court is to be reversed.
26. Mr Mozahar Hossain, the learned advocate for the opposite party submits, that after the DNA test, he has no instruction from the defendant and therefore he has nothing to submit on the issues raised in the two Revisions.
27. Findings and Decision in Revision:
It is evident that the marriage and the amount of dower are admitted by both sides. The courts below, upon consideration of the pleadings and evidence on record, concurrently decided plaintiffs entitlement to the unpaid dower of Taka 70,000.
28. I find nothing on record to differ with the courts below on those two aspects.
29. With regard to divorce, both the courts below, upon consideration of the pleadings and evidence on record, concurrently found that the talak as alleged by the defendant was not legally effective as per section 7 of the Muslim Family Ordinance, 1961, because of defendant’s failure to comply with the requirement of service of notices upon the plaintiff and the Union Parishad Chairman. Accordingly both the courts below concluded that the marriage has not been dissolved and thus allowed· the plaintiff (mother) a monthly maintenance at the rate of Taka 2,500 effective from 14-4-2007, being the date when the plaintiff and her son were ousted by the defendant from his house till dissolution of the marriage.
30. I find nothing on record to disagree with the decision of the courts below on those aspects of the case.
31. The remaining issue is the legitimacy of the child Md Biman and his maintenance. In consideration of the importance and sensitivity of the issue and the opposite views taken by the courts below, I have carefully perused the materials on record including the evidence adduced by the parties.
32. The issue involves two facts-in-issue, namely the time as to when the marriage took place and as to whether or not the defendant is the biological father of the child.
33. On the above noted facts-in-issues, the plaintiff herself as PW 1, her father as PW 2, her uncle as PW 3 and a neighbour as PW 4 stated that the marriage was firstly solemnized without any kabin-nama and six months thereafter, the marriage was registered on 28-12-2006 in the form of a kabin-nama. These PWs also stated that the child was born after about 10(ten) or 11 months of solemnization (K‡jgv) of the marriage.
34. The plaintiff (PWI) further stated that age of the child, as on the date of deposition i.e. on 24-6-2010, was 3 years and that we‡q †iwRwóª nIqvi Av‡M n‡Z weev`xi mv‡_ Avgvi m¤úK© wQj| m¤úK© nIqvi ci we‡q nq|
35. On the other hand the defendant himself as DW I, his father DW 2 and defendant’s paternal cousin as DW 3 stated that the solemnization and registration of the marriage took place on the same date i.e on 28-12-2006 and that the child was born after 3(three) months of the marriage.
36. So the fact of registration of the marriage on 28-12-2006 by kabin nama (Exhibit-I) is admitted. But the witnesses of the two sides made opposing statements with regard to solemnization of the marriage prior to registration and the time of birth of the child.
37. There is no documentary evidence on record as to the date of birth of the child eg the birth or other certificate or any scientific evidence with regard to his age.
38. Plaintiff (PW 1), however, stated that the child was 3 years of age on the date of her deposition on 24-6-2010. So according to her the child was born on 23-6-2007 which is about 6 months after the registration of the marriage on 28-122006. The age as stated by PW 1 is consistent with statements of the PW’s that the solemnization took place before 6 months of registration.
39. The defendant as DW 1 and the other DW’s did not state the current age of the child, but simply stated that the child was born after 3 (three) months of registration of the marriage i.e around 28-3-2007.
40. Exhibit-A, being the certified copy of the complaint petition lodged by the plaintiff against the defendant in Nari-o-Shishu Nirjatan Case No. 516 of 2007 is silent about the date or time of marriage. However it contains a statement that the complainant (plaintiff) had love affairs with the accused (defendant) for about one and half years before the marriage.
41. The appellate court however recorded a finding that the alleged solemnization of the marriage before 6 months of registration on 28-12-2006, as stated by the PW’s, was beyond the plaint and hence their statements are not credible evidence.
42. The appellate recorded a further finding that since the child was born within six months of the registration on 28-12-2006 the child cannot be considered as the son of the defendant as per Muslim Law.
43. The appellate court did not refer to the source of the rule of Muslim Law on which he relied on the point of illegitimacy of a child born within 6(six) months of the marriage. Perhaps, he had in his mind, the rules referred to in section 340 of the “Mulla’s Principles of Mohamedan Law 19th Edition, page-278, containing reference to Baillie.
44. Such reliance is contrary to the statutory provision of section 112 of the Evidence Act 1872 which speaks of conclusive proof of legitimacy of a child born during continuance of the marriage, “unless it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten “.
45. The statutory provisions surely over rides the rule as referred to in the otherwise authoritative book of DF Mulla. So the evidence on record has to be examined and assessed in the light of the section 1120 the Evidence Act.
46. However there is not much evidence on record about the relationship between the plaintiff and the defendant before registration of the marriage, except the statements of the PW’s that there was solemnization of the marriage without kabin nama.
47. Plaintiff is silent in the plaint about such solemnization. However, as PW I, she stated in cross examination that she had some form of relationship (m¤úK©) with the defendant even before solemnization of marriage as quoted earlier. She made similar statements in her complaint petition of the criminal case (Exhibit-A). Other PW’s are silent about the pre-marital relationship, but they stated about solemnization before registration. But this part of their statements are beyond the
48. On the other hand, the defendant himself and other PW’s are totally silent about the premarital relationship. However defendant stated that he was not the father of the child.
49. But the defendant did not produce any evidence to show that plaintiff had any physical relationship with any other man, whether before or after marriage or that the defendant had no access to the plaintiff during the period the child could have been begotten as contemplated in section 112.
50. The statements of PW 1 and the petition of complaint (Exhibit-A) lodged by her in the criminal case indicate that she had love affairs with the defendant even before solemnization of the marriage on 28-12-2006. However she is silent about physical relationship.
(To be continued)
51. Pre-marital relationship, whether physical or otherwise, between unmarried couple is a sensitive issue in this country because of the restrictions of the rules of Religion and people have general tendency to suppress it unless compelled.
52. In the above context the DNA test report (Exhibit-X) need to be looked into. The report contain the analysis of data of the DNA of the child and also of both plaintiff and defendants. The conclusion of the report is quoted below.
“The putative father Md Saydur Rahman is the biological father of the disputed child, Md Biman, He cannot be excluded as being the biological father of the child Md Biman as he possesses all the genetics markers that should be contributed to the child by a biological father. The probability of the stated relationship is 99.99999%. ”
53. With regard to credibility of the DNA test report, the Court Witness Mrs Tanya Hossain stated that the DNA Laboratory conducted the test as per internationally recognized standard, and that the Laboratory is under the control of the Government and run by qualified people under the supervision of professor Sharif Akteruzzaman Phd.
54. The DNA test, for the purpose of identification of parentage and of individuals, is relatively a new technology in this country and not used frequently. But it has been accepted worldwide as a reliable scientific method for various purposes including determination of parentage.
55. The instances of statutory recognition of DNA test as a reliable scientific method for identification of individuals and also of parentage are significant in western countries some are as follows:
(1) DNA Analysis Backlog Elimination Act, 2000. US Law (Authenticated by US government Information) Source: www.gpo.gov/fdsys/pkg/PLAW-106. pub1546.
(2) DNA Identification Act, (Passed in 1998) by Canadian legislature. Published by Minster of Justice at the Source: the website//laws lois justice. gc.ca/eng/acts/D-3.8.
56. Other countries like Australia, UK have also accepted the DNA technology for identification of individuals for various purposes like crime detection, parentage etc.
57. In those countries various cases have been reported both in hard copies and electronic copies, showing acceptance of DNA test as an established scientific method for identification of individuals.
58. John M Butler, is a Fellow and also working scientist of the National Institute Standards and Technology of USA (as in 1999), and also a renowned author. In his book titled “Forensic DNA Typing (Second Edition), published by Elsevier Academic Press (in 2005), page 529, John M Butler, writes as follows:
“Besides its use in criminal investigations, DNA data plays an important role in parentage and kinship testing”.
59. In that book M Butler, states in details the methods and the scientific basis of determination of parentage based on DNA test. He states the number of paternity tests in the US as follows:
“Every year in the United States more than 3,00,000 paternity cases are performed where the identity of the father of the child is in dispute (The American Association of Blood Banks [AABB] 2003). These cases typically involve the mother, the child and one or more alleged fathers”.
60. Again in the book titled “An Introduction to Forensic DNA Analysis (Second Edition), published by CRC and written by Nora Rudin (Forensic DNA Consultant) and Keith Inman (Senior Criminalist California Department of Justice DNA Laboratory) writes as follows: page257).
“DNA analysis is one of the greatest technical achievements for criminal investigation since the discovery of fingerprints. Methods of DNA profiling are firmly grounded in molecular technology. When profiling is done with appropriate care, the results are highly reproducible. In particular, the methods are almost certain to exclude an innocent suspect”.
61. In our country, there is nonspecific law on DNA test nor any widely known author. But the Evidence Act, 1872 (section-61) approves admissibility of expert opinion as evidence. The provision is also applicable to admissibility of DNA test report in evidence.
62. However in my considered view is that in directing a DNA test courts must be cautious about the probable result of a DNA test exposing a child to a socially deplorable condition as a bastard child. It is preferable to direct it up on application.
63. In the instant case, I hold that the DNA Test Report (Exhibit-X-series) prepared by the Government DNA Laboratory is a credible evidence. The conclusion of the Report as quoted earlier is consistent with the admitted birth of the child Md Biman during continuance of the marriage and also with the statements of the PWs that the child was born with 10/11 months after solemnization of the registration.
64. I also hold that, although the fact of solemnization of the marriage before registration was not stated in the plaint, the statement of the PW’s on this aspect are definitively corroborated by the independent and credible evidence as recorded in the DNA test Report. So the evidence the PWs about solemnization of the marriage before registration are relevant, admissible and credible evidence.
65. Accordingly I conclude that the child Md Biman was born out of the wedlock between the plaintiff and the defendant and the resultant physical relationship. The child Md Biman is legitimate son of the defendant. Consequently he is entitled to maintenance from the defendant.
66. The trial court has fixed the monthly maintenance of the child at the rate of Taka 1,000 as prayed for by the plaintiff.
67. The learned Advocate for plaintiff submits the amount is insufficient for a growing child.
68. In consideration of the monthly maintenance of Taka 1,000 as prayed for by the plaintiff for the child and the amount of monthly the maintenance of Taka 2,500 allowed to the plaintiff herself and the financial condition as reflected in the statement of the neighbour witness PW 4 that both sides are very poor, hold that the monthly maintenance for the child should be increased by Taka 200 after every year reckoned from the date of delivery of this Judgment (19-5-2014).
69. In view of the above findings, I hold that the Rule issued in Civil Revision No. 4049 of 2011, at the instance of the defendant Md. Saydur Rahman, has no merit and it is liable to be discharged.
70. On the other hand the Rule issued in Civil Revision No.4153 of 2012, at the instance of the plaintiff Beautiful Bibi, is to be made absolute.
71. In the result, the Rule issued in CR No. 4049 of 2012 is discharged and the Rule issued in CR 4153 of 2012 is made absolute. The judgment of the appellate Court is modified as follows:
(a) The finding of the appellate Court about legitimacy of the son Md Biman is set-aside and it is held that Md Biman is the legimate son of the defendant Md Sydur Rahman.
(b) Md Biman is entitled to a monthly maintenance of Taka 1,000 as fixed by the trial Court, and it will be increased by Taka 200 after every year to be reckoned from the date of delivery of this judgment (19-5-2014).
(c) The other decisions of the trial court are upheld.
No order as to cost.
72. Send down the lower court record with a copy of this Judgment, along the original additional evidence taken in the Revision, namely the original of the deposition of Court witness No. I and the original of Exhibit-X, X( I) and X(2).
The photocopies of the said deposition and the Exhibits X, X(1) and X(2) attested by the Bench officer shall be retained.
(Civil Revisional Jurisdiction)
Md Emdadul Huq J
Beautiful Bibi ……..
……………….. Petitioner
vs
Md Sydur Rahman ……..
………… Opposite Party*
Judgment
May 19th, 2014.
Family Courts Ordinance (XVIII of 1985)
Section 5
DNA Test-DNA test report prepared by the Government DNA Laboratory is a credible evidence. The conclusion of the report is consistent with the admitted birth of the child during continuance of the marriage and also with the statements of the PWs that the child was born with 10/11 months after solemnization of the registration.
Although the fact of solemnization of the marriage before registration was not stated in the plaint, the statement of the PW’s on this aspect are definitively corroborated by the independent and credible evidence as recorded in the DNA test Report. So the evidence the PWs about solemnization of the marriage before registration are relevant, admissible and credible evidence. ……(63&64)
Family Courts Ordinance (XVIII of 1985)
Section 5(1)( d)
Legitimate Child-The child was born out of the wedlock between the plaintiff and the defendant and the resultant physical relationship. The child is legitimate son of the defendant. Consequently he is entitled to maintenance from the defendant. . .. (65)
Evidence Act (1 of 1872)
Section 60
In directing a DNA test courts must be cautious about the probable result of a DNA test exposing a child to a socially deplorable condition as a bastard child…(6l & 62)
DNA Test
The DNA test, for the purpose of identification of parentage and of individuals, is relatively a new technology in this country and not used frequently. But it has been accepted worldwide as a reliable scientific method for various purposes including determination of parentage. . ….. (54)
Pre-marital Relationship
Pre-marital relationship, whether physical or otherwise, between unmarried Couple is a sensitive issue in this country because of the restrictions of the rules of religion and people have general tendency to suppress it unless compelled. . ….. (51)
Code of Civil Procedure (V of 1908)
Section 115(1) and Order XLI, rule 27
Additional Evidence-Considering the exceptional nature of the dispute, and the principle laid down by the Appellate Division the application for additional evidence was allowed for determination of the biological relationship between the child and the defendant. .(20)
Managing Director Janata Bank vs Md Bazlur Rahman, 51 DLR (AD) 141 ref.
Mozahar Hossain, Advocate-For the Petitioner. In CR No.4049/2011
Afsana Rashid, Advocate-For the Petitioner. In CR No. 4153/2012
Abdulla-al-Baki, Advocate-For the Opposite Party.
Judgment
Subject matter of the two Revisions:
These two Civil Revisions arose from the
same judgment and decree dated 3-4-20 II by which the learned Joint District Judge. 2nd Court. Naogaon partly allowed Family Appeal No. 65 of 2010 and thereby modified the judgment and decree dated 2-9-2010 passed by the Family Court, Manda, Naogaon decreeing Family Suit No. 132 of 2008.
2. Plaintiff Mossamat Beautiful Bibi, instituted the suit for realization of her unpaid dower and for the past maintenance for a specific period for herself and her minor son, and also for monthly· maintenance for both.
3. Both the Revisions involve the same issues. So these were heard together and this Judgment will govern both the Revisions.
4. In Civil Revision No. 4153 of 2012, the petitioner (plaintiff) Mossammat Beautiful Bibi alias Beauty has challenged the modification of the decree of the trial court by the appellate Court to the effect that the plaintiffs son Md Biman is not entitled to maintenance, upon a finding that the defendant is not the father of the child Md Biman.
5. In the other Civil Revision, being No. 4049 of 2011, the petitioner being the defendant of the Family Suit Md Sydur Rahman, has challenged the modified decree passed by the appellate court by which he was directed to pay the dower and maintenance to the plaintiff Mossammat Beautiful Bibi.
6. A Rule was issued in both the Revisions about sustainability of the judgment and decree passed by the appellate court.
7. By the Rule issuing order dated 16-10-2011, passed in the said second Revision, operation of the impugned Judgment and decree was stayed for 6(six) months, subject to deposit by the defendant in the trial court a lump amount of Taka 25,000 and also a monthly maintenance of Taka 2,000.
8. The first part of the direction has been complied with, but not the second part. So further extension of the stay order was not allowed.
9. Plaintiffs Case: The plaintiff Mosammat Beautiful Bibi claims that she was married to defendant Md Saydur Rahman in terms of a kabin nama dated 28-12-2006. The dower was fixed at Taka 70,105 out of which Taka 105 was paid as prompt dower. During continuance of the marriage, a son was born to them. But their relationship turned sour when the defendant demanded a dowry Taka 1(one) lakh and started physical torture upon the plaintiff. Ultimately, on 14-4-2007, the defendant ousted the plaintiff and the child from the house. After repeated request, the defendant did not pay the unpaid dower to the plaintiff or any maintenance to the plaintiff and her son. So plaintiff filed the suit for realization of her unpaid dower and also for past maintenance for the period from 14-4-2007 when she and her child were ousted from the house and also for monthly maintenance for herself and the son at the rates of Taka 2,500 and Taka 1,000 respectively.
10. Defendant’s Case: The defendant admits the marriage and the amount of the dower Taka 70,105 and payment of Taka 105 as prompt dower. He also admits registration of the marriage in terms of a kabin nama dated 28-12-2006.
11. However the defendant contends that the child was born only after 3(three) months of the marriage. This fact resulted in a suspicion about the pre-marital pregnancy of the plaintiff. Ultimately he divorced her on 23-4-2007 in a local salish. At that time he paid the entire dower and also the maintenance of the plaintiff for the period of iddat.
12. Proceedings and decision of the courts below:
At the trial, plaintiff produced evidence through four witnesses and the registered kabinnama (Exhibit-I). The defendant produced evidence through three witnesses and produced the certified copy of the complaint of Nari-o-Shishu Niljatan Domon Tribunal Case No. 516 of 2007 (Exhibit-A) instituted by the plaintiff against the defendant and the discharge order dated 18-2-2009 (Exhibit-A) passed in that case.
13. Upon consideration of the evidence on record, the trial Court recorded findings that the marriage was subsisting and that the divorce did not become effective due to non-issuance of any notice to the plaintiff and the Union Parshad Charmane as required by section 7 of the Muslim Family Laws Ordinance, 1961. The trial court further found that the child was born during continuance of the marriage and therefore legitimate.
14. Accordingly the trial court decreed the suit and directed the defendant to pay the unpaid dower of Taka 70,000 and also to pay monthly maintenance to the plaintiff at the rate of Taka 2,500 with effect from 14-7-2007 till dissolution of the marriage. The trial court also directed the defendant to pay monthly maintenance for the child at the rate of Taka 1,000 effective from 14-7-2007 till his attainment of puberty (mvevjKZ¡).
15. The appellate Court after, contested hearing, concurred with the findings of the trial court with regard to subsistence of the marriage and plaintiffs right to get payment of the unpaid dower and also the monthly maintenance of Taka 2500 as fixed by trial Court effective from 14-4-2007.
16. The appellate Court, however, reversed the finding of the trial Court with regard to maintenance of the child and recorded a finding that the marriage took place on 28-12-2006 when the marriage was registered by kabinnama, that the child was born within 6(six) months of the marriage and that defendant was not the father of the child and therefore the child was not entitled to maintenance.
17. Accordingly the appellate court modified the decree of the trial Court.
18. DNA test and additional evidence in Revision:
At the initial stage of the hearing of the two Revisions. the issue of legitimacy of the child Md Biman came up. The plaintiff Beautiful Bibi filed an application for DNA (deoxyribonucleic acid) test of the child Md Biman and also of the defendant Saydur Rahman and for recording additional evidence on the matter.
19. It is noted that the Appellate Division in the Case of Managing Director Janata Bank vs Md Bazlur Rahman [51 DLR (AD) 141] has laid down the principle to be followed in allowing additional evidence in Civil Revision as follows: “the Revisional Court may in appropriate cases consider additional evidence.”
20. So after hearing both sides and considering the exceptional nature of the dispute, and the principle laid down by the Appellate Division in the above noted case the application for additional evidence was allowed by order dated 13-6-2013 for determination of the biological relationship between the child Md Biman and the defendant Saydur Rahman.
21. Accordingly the National Forensic DNA Profiling Laboratory (the DNA Laboratory) of the Dhaka Medical College (DMC) was directed to conduct the DNA test. The DNA Laboratory sent its report dated 27-3-2014.
22. Ms Tania Hossen, the Scientific Officer of the DNA Laboratory was summoned by this Court. She deposed as Court Witness No.1 and proved the forwarding letter sent by Professor Sharif Akhturzzaman (Phd) being the Head of the DNA Laboratory, the DNA test report and an attachment under the title “DNA parentage test:
Technical Issues”. These documents have been marked as Exhibits-X, X(l) and X(2)” respectively.
23. On the date of the deposition of the said witness none appeared for the defendant to cross-examine the witness:
24. Deliberation in Revision:
At the hearing of Revisions, Ms Afsana Rashid, the learned Advocate for the plaintiff, submits that the issues with regard to subsistence of the marriage and plaintiffs entitlement to dower and monthly maintenance have been concurrently decided by the courts below upon consideration of the evidence on record and therefore no interference is necessary in this Revision.
25. Ms Rashid, the learned advocate, next submits that the DNA Test reports, Exhibit- X (series), prove that the defendant is the biological father of the child and therefore the decision of tile trial Court is to be upheld and that of the appellate Court is to be reversed.
26. Mr Mozahar Hossain, the learned advocate for the opposite party submits, that after the DNA test, he has no instruction from the defendant and therefore he has nothing to submit on the issues raised in the two Revisions.
27. Findings and Decision in Revision:
It is evident that the marriage and the amount of dower are admitted by both sides. The courts below, upon consideration of the pleadings and evidence on record, concurrently decided plaintiffs entitlement to the unpaid dower of Taka 70,000.
28. I find nothing on record to differ with the courts below on those two aspects.
29. With regard to divorce, both the courts below, upon consideration of the pleadings and evidence on record, concurrently found that the talak as alleged by the defendant was not legally effective as per section 7 of the Muslim Family Ordinance, 1961, because of defendant’s failure to comply with the requirement of service of notices upon the plaintiff and the Union Parishad Chairman. Accordingly both the courts below concluded that the marriage has not been dissolved and thus allowed· the plaintiff (mother) a monthly maintenance at the rate of Taka 2,500 effective from 14-4-2007, being the date when the plaintiff and her son were ousted by the defendant from his house till dissolution of the marriage.
30. I find nothing on record to disagree with the decision of the courts below on those aspects of the case.
31. The remaining issue is the legitimacy of the child Md Biman and his maintenance. In consideration of the importance and sensitivity of the issue and the opposite views taken by the courts below, I have carefully perused the materials on record including the evidence adduced by the parties.
32. The issue involves two facts-in-issue, namely the time as to when the marriage took place and as to whether or not the defendant is the biological father of the child.
33. On the above noted facts-in-issues, the plaintiff herself as PW 1, her father as PW 2, her uncle as PW 3 and a neighbour as PW 4 stated that the marriage was firstly solemnized without any kabin-nama and six months thereafter, the marriage was registered on 28-12-2006 in the form of a kabin-nama. These PWs also stated that the child was born after about 10(ten) or 11 months of solemnization (K‡jgv) of the marriage.
34. The plaintiff (PWI) further stated that age of the child, as on the date of deposition i.e. on 24-6-2010, was 3 years and that we‡q †iwRwóª nIqvi Av‡M n‡Z weev`xi mv‡_ Avgvi m¤úK© wQj| m¤úK© nIqvi ci we‡q nq|
35. On the other hand the defendant himself as DW I, his father DW 2 and defendant’s paternal cousin as DW 3 stated that the solemnization and registration of the marriage took place on the same date i.e on 28-12-2006 and that the child was born after 3(three) months of the marriage.
36. So the fact of registration of the marriage on 28-12-2006 by kabin nama (Exhibit-I) is admitted. But the witnesses of the two sides made opposing statements with regard to solemnization of the marriage prior to registration and the time of birth of the child.
37. There is no documentary evidence on record as to the date of birth of the child eg the birth or other certificate or any scientific evidence with regard to his age.
38. Plaintiff (PW 1), however, stated that the child was 3 years of age on the date of her deposition on 24-6-2010. So according to her the child was born on 23-6-2007 which is about 6 months after the registration of the marriage on 28-122006. The age as stated by PW 1 is consistent with statements of the PW’s that the solemnization took place before 6 months of registration.
39. The defendant as DW 1 and the other DW’s did not state the current age of the child, but simply stated that the child was born after 3 (three) months of registration of the marriage i.e around 28-3-2007.
40. Exhibit-A, being the certified copy of the complaint petition lodged by the plaintiff against the defendant in Nari-o-Shishu Nirjatan Case No. 516 of 2007 is silent about the date or time of marriage. However it contains a statement that the complainant (plaintiff) had love affairs with the accused (defendant) for about one and half years before the marriage.
41. The appellate court however recorded a finding that the alleged solemnization of the marriage before 6 months of registration on 28-12-2006, as stated by the PW’s, was beyond the plaint and hence their statements are not credible evidence.
42. The appellate recorded a further finding that since the child was born within six months of the registration on 28-12-2006 the child cannot be considered as the son of the defendant as per Muslim Law.
43. The appellate court did not refer to the source of the rule of Muslim Law on which he relied on the point of illegitimacy of a child born within 6(six) months of the marriage. Perhaps, he had in his mind, the rules referred to in section 340 of the “Mulla’s Principles of Mohamedan Law 19th Edition, page-278, containing reference to Baillie.
44. Such reliance is contrary to the statutory provision of section 112 of the Evidence Act 1872 which speaks of conclusive proof of legitimacy of a child born during continuance of the marriage, “unless it can be shown that the parties to the marriage had no access to each other at any time when the child could have been begotten “.
45. The statutory provisions surely over rides the rule as referred to in the otherwise authoritative book of DF Mulla. So the evidence on record has to be examined and assessed in the light of the section 1120 the Evidence Act.
46. However there is not much evidence on record about the relationship between the plaintiff and the defendant before registration of the marriage, except the statements of the PW’s that there was solemnization of the marriage without kabin nama.
47. Plaintiff is silent in the plaint about such solemnization. However, as PW I, she stated in cross examination that she had some form of relationship (m¤úK©) with the defendant even before solemnization of marriage as quoted earlier. She made similar statements in her complaint petition of the criminal case (Exhibit-A). Other PW’s are silent about the pre-marital relationship, but they stated about solemnization before registration. But this part of their statements are beyond the
48. On the other hand, the defendant himself and other PW’s are totally silent about the premarital relationship. However defendant stated that he was not the father of the child.
49. But the defendant did not produce any evidence to show that plaintiff had any physical relationship with any other man, whether before or after marriage or that the defendant had no access to the plaintiff during the period the child could have been begotten as contemplated in section 112.
50. The statements of PW 1 and the petition of complaint (Exhibit-A) lodged by her in the criminal case indicate that she had love affairs with the defendant even before solemnization of the marriage on 28-12-2006. However she is silent about physical relationship.
(To be continued)
51. Pre-marital relationship, whether physical or otherwise, between unmarried couple is a sensitive issue in this country because of the restrictions of the rules of Religion and people have general tendency to suppress it unless compelled.
52. In the above context the DNA test report (Exhibit-X) need to be looked into. The report contain the analysis of data of the DNA of the child and also of both plaintiff and defendants. The conclusion of the report is quoted below.
“The putative father Md Saydur Rahman is the biological father of the disputed child, Md Biman, He cannot be excluded as being the biological father of the child Md Biman as he possesses all the genetics markers that should be contributed to the child by a biological father. The probability of the stated relationship is 99.99999%. ”
53. With regard to credibility of the DNA test report, the Court Witness Mrs Tanya Hossain stated that the DNA Laboratory conducted the test as per internationally recognized standard, and that the Laboratory is under the control of the Government and run by qualified people under the supervision of professor Sharif Akteruzzaman Phd.
54. The DNA test, for the purpose of identification of parentage and of individuals, is relatively a new technology in this country and not used frequently. But it has been accepted worldwide as a reliable scientific method for various purposes including determination of parentage.
55. The instances of statutory recognition of DNA test as a reliable scientific method for identification of individuals and also of parentage are significant in western countries some are as follows:
(1) DNA Analysis Backlog Elimination Act, 2000. US Law (Authenticated by US government Information) Source: www.gpo.gov/fdsys/pkg/PLAW-106. pub1546.
(2) DNA Identification Act, (Passed in 1998) by Canadian legislature. Published by Minster of Justice at the Source: the website//laws lois justice. gc.ca/eng/acts/D-3.8.
56. Other countries like Australia, UK have also accepted the DNA technology for identification of individuals for various purposes like crime detection, parentage etc.
57. In those countries various cases have been reported both in hard copies and electronic copies, showing acceptance of DNA test as an established scientific method for identification of individuals.
58. John M Butler, is a Fellow and also working scientist of the National Institute Standards and Technology of USA (as in 1999), and also a renowned author. In his book titled “Forensic DNA Typing (Second Edition), published by Elsevier Academic Press (in 2005), page 529, John M Butler, writes as follows:
“Besides its use in criminal investigations, DNA data plays an important role in parentage and kinship testing”.
59. In that book M Butler, states in details the methods and the scientific basis of determination of parentage based on DNA test. He states the number of paternity tests in the US as follows:
“Every year in the United States more than 3,00,000 paternity cases are performed where the identity of the father of the child is in dispute (The American Association of Blood Banks [AABB] 2003). These cases typically involve the mother, the child and one or more alleged fathers”.
60. Again in the book titled “An Introduction to Forensic DNA Analysis (Second Edition), published by CRC and written by Nora Rudin (Forensic DNA Consultant) and Keith Inman (Senior Criminalist California Department of Justice DNA Laboratory) writes as follows: page257).
“DNA analysis is one of the greatest technical achievements for criminal investigation since the discovery of fingerprints. Methods of DNA profiling are firmly grounded in molecular technology. When profiling is done with appropriate care, the results are highly reproducible. In particular, the methods are almost certain to exclude an innocent suspect”.
61. In our country, there is nonspecific law on DNA test nor any widely known author. But the Evidence Act, 1872 (section-61) approves admissibility of expert opinion as evidence. The provision is also applicable to admissibility of DNA test report in evidence.
62. However in my considered view is that in directing a DNA test courts must be cautious about the probable result of a DNA test exposing a child to a socially deplorable condition as a bastard child. It is preferable to direct it up on application.
63. In the instant case, I hold that the DNA Test Report (Exhibit-X-series) prepared by the Government DNA Laboratory is a credible evidence. The conclusion of the Report as quoted earlier is consistent with the admitted birth of the child Md Biman during continuance of the marriage and also with the statements of the PWs that the child was born with 10/11 months after solemnization of the registration.
64. I also hold that, although the fact of solemnization of the marriage before registration was not stated in the plaint, the statement of the PW’s on this aspect are definitively corroborated by the independent and credible evidence as recorded in the DNA test Report. So the evidence the PWs about solemnization of the marriage before registration are relevant, admissible and credible evidence.
65. Accordingly I conclude that the child Md Biman was born out of the wedlock between the plaintiff and the defendant and the resultant physical relationship. The child Md Biman is legitimate son of the defendant. Consequently he is entitled to maintenance from the defendant.
66. The trial court has fixed the monthly maintenance of the child at the rate of Taka 1,000 as prayed for by the plaintiff.
67. The learned Advocate for plaintiff submits the amount is insufficient for a growing child.
68. In consideration of the monthly maintenance of Taka 1,000 as prayed for by the plaintiff for the child and the amount of monthly the maintenance of Taka 2,500 allowed to the plaintiff herself and the financial condition as reflected in the statement of the neighbour witness PW 4 that both sides are very poor, hold that the monthly maintenance for the child should be increased by Taka 200 after every year reckoned from the date of delivery of this Judgment (19-5-2014).
69. In view of the above findings, I hold that the Rule issued in Civil Revision No. 4049 of 2011, at the instance of the defendant Md. Saydur Rahman, has no merit and it is liable to be discharged.
70. On the other hand the Rule issued in Civil Revision No.4153 of 2012, at the instance of the plaintiff Beautiful Bibi, is to be made absolute.
71. In the result, the Rule issued in CR No. 4049 of 2012 is discharged and the Rule issued in CR 4153 of 2012 is made absolute. The judgment of the appellate Court is modified as follows:
(a) The finding of the appellate Court about legitimacy of the son Md Biman is set-aside and it is held that Md Biman is the legimate son of the defendant Md Sydur Rahman.
(b) Md Biman is entitled to a monthly maintenance of Taka 1,000 as fixed by the trial Court, and it will be increased by Taka 200 after every year to be reckoned from the date of delivery of this judgment (19-5-2014).
(c) The other decisions of the trial court are upheld.
No order as to cost.
72. Send down the lower court record with a copy of this Judgment, along the original additional evidence taken in the Revision, namely the original of the deposition of Court witness No. I and the original of Exhibit-X, X( I) and X(2).
The photocopies of the said deposition and the Exhibits X, X(1) and X(2) attested by the Bench officer shall be retained.
