Home | Back Issues | Contact Us | News Home
“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: 188
May 7, 2005

This week's issue:
Law Opinion
Law Alter Views
Star Law Opinion
Human Rights Advocacy
Law News
Law Week

Back Issues

Law Home

News Home


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.

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


© All Rights Reserved