Law Opinion
A
legal analysis with critical appreciation
Establishment
and operations of the family courts in Bangladesh
N.A.M.
Jashim Uddin
The
three independent countries of South Asia only emerged
as sovereign nation first, due to the division of India
and Pakistan in 1947 and second, creation of Bangladesh
from Pakistan in 1971. These three countries namely India,
Pakistan and Bangladesh have a similar cultural, social
and legal set up. It is important to note that Bangladesh
possesses its legal heritage from its predecessors. A
family court is neither a civil, nor a criminal court,
but a court of special jurisdiction. It deals with disputes
relating to, or arising out of family affairs. The court
possesses wide jurisdiction over the matters assigned
to it. Justice demands, the administration of courts'
functions ought to be in accordance with the due process
of law.
Establishment
of family courts in Bangladesh
Although after the Muslim family laws ordinance, 1961
(Ordinance No. 8 of 1961) came into force on 15th of July
1961, the legislature of the then West Pakistan enacted
the West Pakistan Family Courts Act, 1964 (Act 45 of 1964)
in pursuance of the recommendation of the Commission on
Marriage and Family Laws which stressed upon setting up
of such special courts for the expeditious settlement
and disposal of disputes relating to marriage, maintenance,
custody of children and for other matters connected therewith.
But unfortunately in the then East Pakistan no such law
was enacted. Enactment of the family courts ordinance
1985 (Ordinance No. 18 of 1985), which was published in
the Bangladesh gazette on the 30th March, 1985 and was
given effect from 15th June 1985 by notification by the
government is undoubtedly a step in the right direction.
Before
establishing the present family courts, there were no
separate courts in Bangladesh for adjudicating disputes
in relation to family matters. The inherited colonial
judicial system of this country is itself an impediment
in expeditious trial procedure. In many cases, as a result,
the aggrieved persons are being deprived of their right
to get judicial relief. They are, sometimes, reluctant
to move to courts due to poverty, shame, ignorance of
law etc. Although some of them would lodge suit for the
realisation of their infringed rights, they would get
remedy only after a long period from the date of instituting
the suits, the aggrieved person would not, in many cases,
enjoy the relief provided by the court, because of their
death to avoid this procedural complication, the women
of the then Pakistan desired to have a separate court
for their own.
Despite
the above circumstances, family courts were established
only in West Pakistan through passing the West Pakistan
Family Courts Act, 1964. The women of this regime continued
their movement for the same. After the emergence of Bangladesh
as an independent state, the overall position of disposal
of cases has been deteriorating and the government set
up a law committee for reviewing the recommendations made
by the law reforms commission of 1958 and 1967. The committee
was to suggest remedies in the light of circumstances
prevailing in Bangladesh, so as to meet the judicial needs
in this country. The Law Committee practically functioned
as a law reforms commission, and submitted its report
on 31 October 1976, suggesting amendments to the civil
and criminal procedural laws in order to arrest delays
in the disposal of cases. It strongly recommended establishment
of family courts in Bangladesh for adjudication of family
disputes relating to dissolution of marriage, maintenance
of wife, restitution of conjugal rights, custody of children
and guardianship.
Construction
of family courts
No new court building was founded and no fresh judge was
appointed separately for the family courts. All courts
of munsiffs (Now courts of Assistant Judges) have been
empowered to act as the judges of family courts, and all
courts of Assistant Judges are family courts for the purpose
of family courts ordinance. In this regard the ordinance
provides, that:
(1) There shall be as many family courts as there are
courts of Assistant Judges.
(2) All courts of Assistant Judges shall be family court
for the purpose of the ordinance.
(3) All Assistant Judges shall be the judges of family
courts.
Jurisdiction
of family courts
The jurisdiction of family courts has been sharply ascertained
by its parent law. The ordinance asserts that;
Subject
to provision of Muslim Family Laws Ordinance, 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.
All
family courts are to exercise their jurisdiction assigned
to them under the ordinance within their territorial jurisdiction.
Territorial jurisdictions are same as fixed for them as
assistant judges. Pecuniary jurisdiction is, however,
unlimited. The same person is simultaneously a judge of
a court of Assistant Judge and a judge of a family court.
When he acts as a judge of the court of Assistant Judge,
his pecuniary jurisdiction is limited up to the valuation
of the suit Taka 2,00,000 (two lakh). But if he is in
the post of a Senior Assistant Judge his jurisdiction
is extended up to Taka 4,00,000 (four lakh). However,
there is a peculiarity that where their pecuniary jurisdiction
differs to a great extent merely because of seniority
at the same moment and being seated on the same chair,
they enjoy unlimited pecuniary jurisdiction while acting
as a judge of a family court. Moreover, it should be mentioned
here that, the family courts have been entrusted with
the powers of First Class Magistrate and district judge
in two separate cases. For example, at least First Class
Magistrate were entitled to try and dispose of any case
relating to or arising out of all or any of the maintenance
under the code of criminal procedure, 1898, section 488(1)
of code. On the other hand, suits relating to guardianship
and custody of children were under the jurisdiction of
the court of district judge.
There
two important matters have been put within the jurisdiction
of the family courts exclusively because on the matters
mentioned earlier, the jurisdiction of a family court
is exclusive.
The
responsibility of resolving the disputes relating to maintenance
has been imposed on the family courts by the family courts
ordinance, but till now, section 488 of Cr.PC has not
been omitted. In one sense, therefore, a concurrent jurisdiction
is prevailing in this respect, by dint of which a magistrate
can still entertain an application under Cr.PC. But in
Pakistan, the order of magistrate calling upon the husband
to pay arrear of maintenance after enforcement of the
West Pakistan family courts act is without jurisdiction.
In
Pakistan the qualification of family courts' judge has
been determined of following manner:
"No
person shall be appointed as a judge of family courts
unless he is or has been a district judge, an additional
district judge."
If
the jurisdiction of family courts of Bangladesh is taken
into fair consideration, it appears the qualification
of judges is not reasonable because he has to act, sometimes
as a First Class Magistrate and sometimes as a district
judge, issues regarding maintenance, guardianship and
custody of children are regarded as most important. That
is why, they were being tried and disposed of by at least
first class magistrates and district judges, respectively
instead of junior magistrates and judges. In our country,
courts of assistant judges are lowest in grade of civil
courts system.
Appeal
against a judgement, decree or order passed by the family
courts
An appeal from a judgement and decree of the family courts
shall lie to the district judge. No appeal, however, shall
lie against the decree of a suit for dissolution of marriage
under section 2(8) (d) of the dissolution of Muslim Marriages
Act 1939 and a decree of dower not exceeding Tk 5,000/-
(five thousand).
Another
inconsistency is observed here. The appellate jurisdiction
of the court of district judge is not limited if an appeal
prefers from family courts, but appeal from the judgement
of a joint district judge may lie to the district judge
if its valuation is within 5 lakhs.
Courts-fee
to be paid for the institution of suit in a family court
The family court or ordinance does not follow rules of
the court-fees Act, 1870, which court ascertains fee for
a suit. So, irrespective of the poor and the rich litigant,
everyone is to pay a fixed amount as court fee to register
a suit in the family court. The ordinance provides.
"The
court-fees to be paid on any plaint presented to a family
court shall be twenty-five taka for any kind of suit."
It
cannot be said that all those who seek remedy in the family
courts are poor. A rich man may have the cause to file
a plaint before a family court. In the cases of the rich,
the government is being deprived of reasonable court-fees
illogically.
Contempt
of family courts
Contempt of any court is considered as an offence in all
events. A person who commits this offence should be punished
reasonably. Family court may forthwith try such person
for such contempt and sentence him to a fine not exceeding
two hundred taka. This ordinance empowers the family courts
to draw contempt proceeding against a person concerned,
but penalty shall not be more than two hundred taka. Now-a-days
Tk two hundred as a fine considered to be very poor. Moreover
there is no alternative punishment if the money is not
realised.
Inherent
power of the family court
Under the Family Court Ordinance, the family court does
not enjoy any inherent power but a civil court does. Our
legal system follows the common law system. Equity was
emerged in the common law due to the shortcomings of law.
"Equity has come not to destroy the law but to fulfill
it" as Maitland remarks. The law, it is evident,
can not meet the ends of justice in all cases at all times.
For this reason, the provisions of the family courts ordinance
may not be considered as enough to meet the needs of justice.
And its failure may frustrate the subject matter of a
suit, and the litigant as well.
Conclusion
The family court has a great importance in Bangladesh,
especially for women. An inquiry into the family courts
ordinance 1985 reveals that there are some drawbacks in
the ordinance, for which the courts are facing multifarious
difficulties in running their functions, despite the first
amendment in 1989.
To
make it more effective, the shortcomings mentioned in
this proposal should immediately be removed. The object
of the establishing these courts would not be realised.
Now a democratically elected government is running the
affairs of the country. The government, it is expected,
would come forward as soon as possible, to bring the suggested
amendments into relating, with a view to fulfilling the
hopes and aspirations of the people of Bangladesh in general,
and poor and suppressed women of rural areas in particular.
Since
the family courts ordinance is the most important code
in the field, the seekers of knowledge, the judges, the
teachers, the students, the lawyers, the researchers,
the advocates, the legislative draftsman's and a host
of others connected with the profession of law were may
be benefited to study outcome of these research.
I
am interested to findout the procedural problem and suggested
how to be solved the problem of family courts. I want
to remark and necessary amendment in this ordinance in
the perspective and reality of the women society of Bangladesh.
I would like to mention of the family courts ordinance
inconsistency and I will suggest to remove these for the
favours of greater women's society of Bangladesh.
The
author is a reader of The Daily Star.
Photos:
AFP
