Evidence Law: Monasir Rain Kachary v. Jeun Khatun, NKP (2048), No.1, P.8, DN.4243
Case: Registration of share of property
Plaintiff: Jeun Khatun
Defendant/Appellant: Monasir Rain Kachary
Decision no: 4243
This case is related to “Burden of proof”, “One who assert must prove”
Fact of the case:
Safida is a sister of Jeun Khatun. She is the wife of Monasir Rain Kachary. Monasir Rain Kachary gets married with Widow Jeun Khatun in 2036/05/10.
Jeun Khatun gave birth to a daughter, Jaimun on Aashad, 2037 from the same marriage. On 2042/02/05 Ali Mohammad, the son of Monasir rain collected some witnesses and demanded partition of property. Jeun Khatun requested the partition to be made in 4 parts separating the wedding expenses for her unmarried daughter.
Ali Mohammad denied Jeun Khatun’s request to saying, “the partition will be made only in 3 part, and you will not get any, so just leave the house.”
Jeun Khatun claimed, she is married to defendant Monasir Rain and have a daughter with him. So, she demanded the partition of their property to be made into four parts for herself, Monasir Rain, Safida and Ali Mohammad separating the wedding expenses for her unmarried daughter.
Defendant respond that he is not married to plaintiff, Jeun Khatun. The Islamic law does not allow him to get married to the sisters from the same parents. The plaintiff filed the case with the malicious intention of obtaining my property. So, the complaint should be cancelled.
Dhanusha District Court:
The plaintiff, Jeun Khatun appears to be a sister in law of the defendant, Monasir Rain. No any evidence was found to prove her marriage with defendant. As the law does not allow a sister in law to demand partition with her brother in law, the claimant’s claim is not valid.
Now plaintiff appeals in regional court stating the decision of district court not to provide ¼ of partition as per the claim is inconsistent with laws.
Central Regional Court:
Statement of witness, photos included in the document, plaintiff living in the same house as of defendant and filing the complaint from the same location proves that plaintiff is defendant’s wife.
The day before the complaint was filed will be considered the day of their separation. And the Regional Court ordered District Court to initiate proceedings to provide plaintiff with lawful part of the property as per the claim.
Defendant goes to Supreme Court claiming the decision made by the central Regional Court is against the Chapter 13 on partition number 20, 21, 22, and 23 and Section 54 of Evidence Act, 2031.
Supreme court:
As per defendant was unable to prove his claim, “plaintiff is not my wife.” So, there is no any controversy in the fact the plaintiff and defendant are married, and plaintiff have right to ¼ of the partition.
One who wants the Court to accept the validity of a fact has the burden of proof to establish that fact before the Court beyond a reasonable doubt.
According to Section-28 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes to the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
The decision of Regional Court to transfer the authority to collect details of property to district court is in accordance with the principle “equal access to justice for all” as both the parties are the residence of Dhanusha District. So the decision of the Central Regional Court is valid.
Principle Established:
The burden of proof as to any particular fact lies on that person who wishes to the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. (Sen 28, Evidence Act, 2031).
