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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: 257
October 7, 2006

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Amending plaints in Family Courts

Zahidul Islam

Generally a court of civil jurisdiction follows the procedure prescribed by the Code of Civil Procedure 1908. But Family Courts are exceptions which, though being courts of civil jurisdiction, do not follow the said procedure. The reason is simple: Family Courts are special courts with specific jurisdiction and purpose, created by a special law, that is, Family Courts Ordinance 1985. This Ordinance not only prescribes a specific procedure to follow but also provides that the provisions of the Code of Civil Procedure, except sections 10 and 11, shall not apply to the proceedings before the Family Courts.

In fact, the Ordinance prescribes almost a complete procedure regarding (i) institution of suits and plaints, (ii) issuance of summons and notice, (iii) written statement, (iv) consequence of non-appearance of parties, (v) recording evidence, (vi) writing the judgment and (vii) summoning witnesses etc. But this Ordinance does not provide any provision for amendment of plaint as is available in any other civil court that follows the CPC. Lawyers allege that the dearth of provision for necessary amendment of plaint has been creating problems in dealing with the Family Courts. They reason that it is not possible even for good lawyers to prepare a good plaint at a single chance. Moreover, after presentation of the plaint, other logical and legal grounds may arise, necessitating amendment of plaint. Hence, this rigid provision obstructs many good causes.

But what actually is the matter? Is there no scope for amendment of plaint? As to this the lawyers and judges of the Family Courts seem confused -- confused because in the meantime the Supreme Court has given differing opinions.

In Azad Alam Vs Jainab Khatun and others [1(1996) BLC (AD) 24; judgment delivered on 23rd October 1993] the full Bench of Appellate Division of the Supreme Court upheld the view that plaint cannot be amended under the Family Courts Ordinance. Though the learned advocate of the case argued that Family Courts Ordinance being silent about amendment of pliant the Court got power under section 6 of the General Clauses Act to pass any order necessary to give relief, the Court rejected the same in view of the provision under section 20 of the Family Courts Ordinance which provides “ Save as otherwise expressly provided by this Ordinance the provisions of the CP Code, except sections 10 and 11, shall not apply to the proceedings before the Family Court.”

However, after few months later, a High Court Division Bench in Nazrul Islam Majumdar Vs Tahmina Akhtar alias Nahid (47(1995) DLR (HCD) 235; judgment delivered on 23rd January 1994) expressed opposite view, though it could not be learnt whether the HC Bench was aware of the Appellate Division decision in Azad Alam Vs Jainab Khatun and others while expressing the view. The Court held that: 'An amendment of the plaint insofar as it does not change the nature and character of the suit would be allowed always in a suit. ....And the guiding principle for amendment of plaint is that it ought to be made for the purpose of determining the real question in controversy between the parties to any proceedings. ....and the principle applicable to the amendment of the plaint is also applicable to the amendment of written statement'.

The fact of the above mentioned case was that the amendment was sought for by the wife in her own suit bringing to notice certain facts that accrued or happened after the suit was filed and it was to the effect that she divorced her husband as per provisions of law. The Court expressed that: '... if the wife has legally divorced her husband the prayer made by the wife in her plaint that she would be allowed maintenance would be deleted as her maintenance would not be allowed after she had divorced and if the wife had legally divorced the husband the suit by the husband for restitution of conjugal life may not also be maintainable on that evidence. this, therefore, is a issue vital for both the parties to be decided by the Court on evidence and that being the position for ends of justice this amendment needs to be made and it would be incumbent upon the court to do so'.

The Court also expressed its opinion in the following words: 'In this sort of case the interest of justice needs to be served keeping in mind that the other parties should not be taken by surprise by the amendment of the plaint which would change the nature and character of the suit and if justice demands that the amendment should be done it would be within the discretion of the court to allow such an amendment for ends of justice.

In the case of Satish vs Govt of India AIR 1960 (Cal) 278, the Calcutta High Court reiterated the same principle. It has been again reiterated in the case of Rajeshawar vs Padam AIR 1970 (Raj) 77. And it is the consistent view that court can take into account subsequent view even necessitating amendment by addition of new relief that may be allowed to do complete justice.

It seems quite pertinent to mention a judgment of a Divisional Bench of the High Court in Younus Mia vs Abida Sultana Chhanda 47 (1995) DLR (HCD) 331. In this judgment, section 20 of the Ordinance was interpreted as follows: "Upon reading this section it appears to us that the meaning of the expression 'proceedings before the Family Courts' as understood by the Ordinance itself is the key to the solution. The word 'proceeding' in a general sense means 'the form and manner of concluding judicial business before a Court of Judicial Officer' (Black's Law Dictionary. p.1368).

"Keeping this meaning of that term 'proceeding' in mind, we now look into the scheme of the Ordinance so far it is relevant for our purpose by section 4 and 5. After respectively providing for the establishment of Family Courts and the jurisdiction thereof, the Ordinance prescribes procedures applicable to the proceedings before the Family Courts regarding (i) institution of suits and plaints, (ii) issuance of Summons and Notice, (iii) Written Statement, (iv) consequence of non-appearance of parties, (v) recording evidence, (vi) writing the judgment and (vii) summoning witnesses respectively in Sections 6, 7, 8, 9, 12, 15 and 18, that is, by these sections the Ordinance substitutes for itself the provisions of Orders 4, 7, 5, 8, 18, 20 and 16 of the Code of Civil Procedure respectively. Therefore, when section 20 of the Ordinance says that the provisions of the Code 'shall not apply to proceedings before the Family Courts' it means that provisions of the Code shall not apply which are in the Ordinance as prescribed modes for conducting Judicial business by the Family Courts".

The said Court mentioned that it is a canon of interpretation that an attempt should be made to discover the true legislative intent by considering the relevant provision in the context of the whole statute, and subsequently observed that Code of Civil Procedure itself does not create any Court nor does define the word 'Court'. Its preamble says that it is intended to regulate the procedure of the Courts of Civil Judicature. Basically, the Code of Civil Procedure is a procedural law and, therefore, there is no difficulty in its application to proceedings of a civil nature suit pending before the courts of any kind. Therefore, the bar in applying the Code to the proceedings before the Family Courts imposed by section 20 of the Ordinance is not and cannot be an absolute bar, but it must be a qualified and limited bar. Enactment of section 20 was thus only necessary due to certain procedures prescribed in the Ordinance.

The learned Court finally held that only those provisions of the Code shall not apply to the Family Courts where alternative provisions have been prescribed for the Family Courts in the Ordinance.

In the light of the above mentioned judgment we can come to a decision that as there is no alternative provision for the amendment of plaint in the Family Courts Ordinance, the provisions of the CPC as to the same will apply in the Family Courts. However, the fact is that we cannot reach such a conclusive decision because of the Appellate Division judgment expressing opposite view, and because of the Constitutional directive that the law declared by the Appellate Division shall be binding on the High Court Division and all other subordinate courts.

Yes, we cannot bypass the Appellate Division judgment. But at the same time we cannot accept the judgment without thinking its impact on the total justice delivery system. A group of lawyers and judges do strongly support the absence of provision for amendment of plaint by presenting the simple argument that as the Family Courts are specially established for the speedy disposal of family cases, the provision for amendment of plaint would oppose the purpose by destroying the time of a case. They stress on the maxim 'justice delayed, justice denied'. On the contrary, the other group argue that speedy disposal of suit may produce injustice. They stress on the maxim 'justice hurried, justice buried'. It is high time the concerned authority resolved the issue.

The author is a law and governance researcher, currently working for Bangladesh Legal Aid and Services Trust.


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