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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 221
December 31, 2005

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Star Law Analysis

Family Court: Time to examine its short comings

Md. Zahidul Islam

FAMILY Courts were established all over the country except the hill districts of Rangamati, Bandarban and Kagrachhari exactly twenty years ago by the Family Courts Ordinance (No XVII of 1985). By this law the family courts get exclusive jurisdiction for expeditious settlement and disposal of disputes in some specific family matters. After two decades of the establishment of family courts we see with our frustration that the courts have failed to give expected outcome. Certainly there are procedural as well as substantive loopholes. Non-legal issues hindering smooth functioning of the courts are also considerable. However, non-specification of jurisdiction of family courts is certainly one of the main problems which will be focused in the present write-up.

As said earlier the family courts began working in 1985. Soon after the functioning of the family court, there comes a question on ambiguity about the court's jurisdiction that whether the court would deal only with the family matters of Muslim community or of all communities. In fact, the ambiguity is enshrined in section 5 of the Ordinance, which reads as follows:

“Jurisdiction of Family Courts -- Subject to the provisions of the Muslim Family Laws Ordinance, 1961 (VII of 1961), a Family Court shall have exclusive jurisdiction to entertain, try and dispose of any suit relating to, or arising out of, all or any of the following matters, namely:-
(a) dissolution of marriage;
(b) restitution of conjugal rights;
(c) dower;
(d) maintenance;
(e) guardianship and custody of children.”

As it appears on the face of it, the court exercises its jurisdiction on the Muslim community. But what actually is the matter? It is still unsettled. In this respect, in the meanwhile, there have been some cases, but those have failed to bring any conclusive decision. In Krishnapada Talukder V Geetasree Talukder (14 BLD 415), the question whether a women, Hindu by faith, can file a suit for maintenance against her husband under the Family Court Ordinance, 1985. The honourable judge of the High Court Division held that “as per the provisions of the present Ordinance, all the sections of the 27 section statute have been made available for the litigants who are Muslim by faith only.”

One of the arguments in this case is “ the reliefs in the matters mentioned in clauses (b), (d) and (e) of section 5 of the Ordinance can be brought by any persons irrespective of their religious faith. But ... the reliefs in the matters in clauses (a) and (b) cannot be sought by the persons other than Muslim by faith.”

The judgment held that “ According to well-settled rule of constructions, scope of all the clauses are required to be taken analogously and not separately. "In this respect, we like to quote a paragraph from the book, Maxwell On The Interpretation of Statutes, 12th Edn, page 289, as follows:

“where two or more words which are susceptible of analogous meaning are coupled together, ... they are understood to be used in their cognate sense. They take, as it were their colour from each other, the meaning of the more general being restricted to a sense analogous to that of the less general.”

Therefore, less general matters in clauses (a) and (c) restrict the general clauses in (b), (d) and (e), otherwise the expression “subject to the provisions of the Muslim Family Laws Ordinance”, and inclusion of all the matters in one group become meaningless.

However, just few days after the above mentioned judgment, there came another judgment of the High Court Division expressing diametrically opposite opinion. The Honourable Judge of the High Court Division in Nirmal Kanti Das Vs Sreemati Biva Rani(14 BLD 413) held as the following:

“ Section 3 of the Ordinance reads as follows: Ordinance to override other Laws -- The provision of this Ordinance shall have effect notwithstanding anything contained in any other laws, for the time being in force.

From the expression 'other laws' used in section 3 of the Ordinance, it appears that the Family Court Ordinance, 1985 controls the Muslim Family Laws Ordinance, 1961, and not vice versa. Any person professing any faith has a right to bring a suit for the purposes mentioned in section 5 of the Family Court Ordinance. A Hindu wife is therefore entitled to bring a suit for maintenance against her husband under the Family Courts Ordinance.”

Likeway, it was held in Meher Nigar Vs Md Mujibur Rahman (14 BLD 467) that “ The Muslim Family Laws Ordinance, 1961 introduced some changes in the orthodox Muslim personal laws relating to polygamy, talaq and inheritance and in order to keep those reformative provisions of the Ordinance of 1961 effective it has been provided in section 5 of the Ordinance of 1985 that the provisions of earlier Ordinance of 1961 shall not be affected by the provisions of the Ordinance of 1985. But the matters which shall not be affected by the Ordinance of 1985 have been enumerated specifically in sub-sections (2) and (3) of section 23 of the Ordinance of 1985. But this in our opinion does not mean that the provisions of the Family Courts Ordinance, 1985 are applicable to the members of the Muslim Community only and not to other communities which constitute the populace of Bangladesh.”

Thus, no judgment of the Appellate Division clarifying this jurisdiction is found so far by this author. Jurisdiction of the family court is therefore still a moot point. Family courts have passed their twenty years with this ambiguity, but it should no longer remain so. The legislature can and should eliminate such ambiguity immediately.

The author is a researcher and human rights activist.


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