Star Law Analysis
Executing Family Court's decree
The disrepute of the Family Court Ordinance 1985 that it does not provide adequate provisions for effective execution of its decree for money has been wiped up in 1989 by substitution of subsection 3 of section 16 by which Family Courts have been invested with the powers of a Magistrate, first class, for the enforcement of the decree passed by it; the earlier provision being that the money decreed by the Family Courts was to be recovered as a public demand at the discretions of the District Judge. Nonetheless, the execution process is still under the shade of confusions and misunderstandings. Still today some lawyers and judges seem confused as to the determination of executing court, which indicates that there is procedural non-specification. In the first part of this two part write-up I shall discuss the confusion regarding determination of executing court.
Section 16 of the Family Court Ordinance provides for the enforcement of decrees. Sub-section 3 of the section states:
(3) Where the decree relates to the payment of money and the decretal amount is not paid within the time specified by the court, the decree shall, on the prayer of the decree-holder to be made within a period of one year from the expiry of the time so specified, be executed-
(a) as a decree for money of a Civil Court under the Code, or
(b) as an order for payment of fine made by a Magistrate under the Code of Criminal Procedure, 1898 (Act V of 1899)
and on such execution the decretal amount recovered shall be paid to the decree-holder.
Again subsections 3(A) and 3(B) provide that:
3(A) For the purpose of execution of a decree under subsection 3(A), the Court shall be deemed to be a Civil Court and shall have all the powers of such court under the Code.
3(B) For the purpose of execution of a decree under subsection 3(B), the Judge of the Family Court shall be deemed to be a Magistrate, first class, and shall have all the powers of such Magistrate under the Code of Criminal Procedure, 1898 (Act V of 1898), and he may issue a warrant for levying the decretal amount due in the manner provided in that Code for levying fines, and may sentence the judgment debtor, for the whole or any part of the decretal amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to three months or until payment if sooner made.
Thus, from Subsection 3 of Section 16, it is clear that a decree may be executed in two ways, i.e., (a) as a decree for money of a Civil Court under the Code of Civil Procedure, or (b) as an order for payment of fine made by a Magistrate under the Code of Criminal Procedure, 1898. But it is unclear here that who is to decide in which way the decree for money to be executed. Is it the executing court or the decree holder or judgment debtor? Again, as an executing court for execution of the decree for money which court, civil or criminal, should be prioritised?
The legal provision regarding this is absent in the Ordinance. And I have not got any satisfactory answer to this through my discussions with the practicing lawyers. However, the High Court Division judgment in Md. Ali Hossain & Others Vs State, 5
(2000) MLR (HCD) 301] has helped me to see the issue from a different angle. In the said case, it was held that:
Fine imposed upon an accused in a criminal proceeding is of the nature of a financial punishment as distinguished from physical punishment and it must be paid by him under all normal circumstances. Only when the assets of the accused cannot cover the amount the fine imposed upon him and there is no way out for realisation of the fine the accused shall have to undergo imprisonment of either description for a period fixed by the Court for default in payment of fine.
Though it was a decision in a criminal proceeding, we can use the essence of the judgment to come to a decision as to determination of court for execution of family court decree for money. Usually Family Courts award decree for money in the suits for dower and maintenance. Dower (mahr) is a sum of money or other property which the wife is entitled to receive from the husband in consideration of the marriage. On the other hand 'maintenance' includes food, clothing, and lodging. After divorce wife is entitled to maintenance up to iddat period; which may extent to three months. And for maintenance of children, the word of maintenance, along with food, clothing and lodging as per definition, includes other necessary expenses for mental and physical well being of a minor, according to his status in society. Educational expenses may also be included in the definition of maintenance.
So, decree for money is, in some cases, to enforce the rights of a wife or to meet the basic necessity of a child. And it is distinguished from fine imposed upon an accused-convict in a criminal proceeding which is of the nature of a financial punishment. Fine is a charge upon the assets of the convict as a public dues. But decretal money of Family Courts is not public dues; rather it is rightful gain of a decree holder.
So, while acting on executing a decree for money, the executing court should keep in mind the purpose of family court's, decree for money. Hence, realisation of the decretal money should be the first priority, and imprisonment should be the last option. Only when the assets of the judgment debtor cannot cover the decretal amount, and when there is no way out for realisation of the same, the judgment debtor shall have to undergo imprisonment for the term fixed by the court for default in payment of decretal money. There should not be any option left to the judgment holder to plead that he will undergo further imprisonment for a fixed term in lieu of payment of the decretal amount of money. If the judgment debtor is allowed to avoid payment of the decree-money by exercising his option by undergoing imprisonment for default in payment of the same, the very purpose of passing the decree will be frustrated.
For the above reasons, when a decree of money is put before family court for execution, the Family Court should proceed firstly as a Civil Court under the Code of Civil Procedure. And if the decree is not satisfied through civil process, only then a Family Court should act as a Magistrate Court under Code of Criminal Procedure, and sentence the judgment debtor to imprisonment. However, if a Family Court for the purpose of executing a decree for money initially begins working as a Magistrate Court, it must start its proceedings by issuing warrant for levy of fine ( as the decretal amount is treated as fine for execution in magistrate court) under the provision of section 286 of the Code of Criminal Procedure. And if decretal amount is not recovered in this way, only then the Magistrate Court may sentence the judgment debtor to imprisonment.
(... to be continued)
The next part of the article will be published in the next issue.
The author is a law and governance researcher, currently working for Bangladesh Legal Aid and Services Trust.