Law Alter views
Jurisdiction of family courts: Some thoughts
M A Mannan Khan
An article was published in law and our rights page of The Daily Star on 31.12.2005 under the title "Family Court:| Time to examine its shortcomings" by Md. Zahidul Islam, a researcher and human rights activist.
In that article the author discussed the jurisdiction of the family court specially jurisdiction of the family court over the various communities/religions. The author raised question showing the ambiguity of respective law and he tried to show that non-specification of jurisdiction of family court is the main problem of the law.
He described “Soon after the functioning of the family court, there comes a question of 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.
The writer by reproducing the section 5 of the ordinance which deals with the jurisdiction of the family court himself put the question that "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.”
Then the writer refers to the case of Krishnapada Talukder vs- Geetashree (14 BLD 415) and quote the portion of the decision. Thereafter he referred to the decision of the case of Nirmal Kanti Das-vs- Sreemoti Biva Rani (14 BLD 413) which was dissenting opinion of earlier decision mention above and quoted the key note portion from the judgment. Finally he mentions the case of Meher Nigar-vs- Md. Mujibur Rahman reported in 14 BLD 467 and then he quotes the decision given in that case.
The writer after quoting the decisions himself gives opinion that "Thus no judgment of the Appellate Division clarifying this jurisdiction is found so fare 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 remains so. The legislature can and should eliminate such ambiguity immediately.”
The opinion passed by the writer is not correct. He came to conclusion without proper study of relating laws, rules and case law. It is true that Hon'ble High Court Division has passed different views in the cases above mentioned regarding jurisdiction of the family court over the other religions and as a result it makes ambiguity.
But this ambiguity has been removed as per provision of law and rules. As per High Court Rules this type of problem should be dissolved by the full bench of the Supreme Court constituted by the Hon'ble Chief Justice in appropriate case or cases and it is not necessary in all cases that all ambiguity should be dissolved by the Appellate Division.
Chapter VII, of the Rules of the High Court of Judicature provides “1.Whenever a Division Court shall differ from any other Division Court upon a point of law or usage having the force of law, the case shall be referred for decision by a Full Bench.
2. If the question arises in an Appeal from an Original Decree or Order, the Court referring the case shall state the point or points upon which they differ from the decision of a former Division Court and shall refer the Appeal for final decision by a Full Bench.
3. If the question arise in an Appeal from an Original Decree or Order, the question of law shall alone be referred, and the Full Bench shall return the case with expression of its opinion upon the points of law for final adjudication by the Division Court which referred it, and in case of necessity in consequence of the absence of any or either of the referring Judges, for the ultimate decision of another Division Court.
4. If the question arise in any matter coming before a Division Court in the exercise of its Civil Revisional Jurisdiction, the point or points shall be stated as provided in rule 2 above, and the matter shall be referred for the final decision by a Full Bench.
6. If a Full Bench consisting of three Judges cannot come to majority decision, they shall refer it to the Chief Justice for constitution of a larger Bench.
7. Every decision of a Full Bench shall be treated as binding on all Division Courts, and Judges sitting singly, upon the point of law or usage having the force of law determined by the Full Bench, unless it be subsequently reversed by a larger Bench, specially constituted, consisting of such number of Judges as in each case shall have been fixed by the Chief Justice, or unless a contrary rule be laid down by the Supreme Court.
This Law point has been finally settled down in the case of Pochon Rikssi Dass _Vs_ Khuku Rani Dasi, 50 DLR(1998) 47. Similar question arise in this case. At the time of final hearing of this case the above mentioned decisions of the High Court reported in 14 BLD 413 and 14 BLD 450 and 47 DLR 18 were placed before the Hon'ble Bench. Hon'ble Single Bench following the Rules of the High Court of Judicature referred the matter to the Hon'ble Chief Justice for constituting a Special Bench for final decision by the High Court Division in matter of applicability of the supreme Family Courts Ordinance to different communities as there are two divergent decisions on the point by the High Court Division. Then Hon'ble Chief Justice constituted a Special Bench comprising three Judges. In this case Hon'ble Special Bench requested some senior Member of Bar to address the court as Amici Curiae. After long hearing on this point the following decisions were given by that Special Bench.
“Section 23 of the Family Courts Ordinance if read with section 5 will make it clear that the provisions of Muslim Family Laws Ordinance shall have to be followed in case of decree passed by the Family Court for dissolution of a marriage as enumerated in section 5(a) of the ordinance if it relates to a Muslim only.”
“The Family Courts Ordinance has not taken away any personal right of any litigant of any faith. It has just provided the forum for the enforcement of some of the rights as is evident from section 4 of the Ordinance”
“Family Courts Ordinance applies to all citizens irrespective of religion”
“After the coming into force of the Family Courts Ordinance the Criminal Court's jurisdiction has been ousted in respect of awarding maintenance except in case of pending proceedings”.
I think one should be more cautious in giving any concrete opinion on the law point like this which has a great public importance at large. Before publishing any article on the law point in a well known newspaper the author may consult a the senior Advocate who practices in the court regularly.
The author is an advocate and human rights activist