Laws For everyday life
Family Court Ordinance
Shah Md. Mushfiqur Rahman
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Historically, civil suits here in Bangladesh take inordinate time to be resolved. The reason lies in the age-old and exceedingly outdated procedural system that we inherited from British colonisers. From juristic point of view family disputes are largely of civil nature. And if they are to go through the same prolix, unpredictable and costly process, it may cost justice-seekers their desired remedy even if the judgment goes their way.
This basic idea prompted the legislators to think about establishing a separate and specialized court system equipped with custom-made procedure for resolving disputes related to family matters. The outcome of this thought was the enactment of the Family Courts Ordinance 1985, the law responsible for the formation of Family Courts that are meant to deal only with family disputes. This legislative intent is manifested in section 20 of the Ordinance whereby the application of the Civil Procedue Code and the Evidence Act was largely done away with.
Scope of the Ordinance
The territorial jurisdiction of the law extends to the whole of Bangladesh except the districts of Rangamati Hill Tract, Bandarban Hill Tract and Khagrachari Hill Tract. As regards subject-matter, the Family Courts can dispose of the following issues: dissolution of marriage, restitution of conjugal rights, dower, maintenance, guardianship and custody of children. The Family Courts have exclusive jurisdiction over these issues i.e. they shall not entertain any other issues and other courts shall not deal with these issues.
Judges of the Family Courts
According to the Ordinance there shall be as many Family Courts as there are Courts of Assistant Judge. All Courts of Assistant Judge shall be Family Courts for the purposes of the Ordinance and all Assistant Judge shall be the judges of Family Courts. This dual responsibility of Assistant Judges partly vitiates the very purpose of the law as they have to deal with family disputes alongside their other regular judicial responsibilities.
Institution of suit
Suits under the Ordinance are to be instituted by the presentation of a plaint to the Family Court within the local limits of whose jurisdiction:
(a) the cause of action has wholly or partly arisen; or
(b) the parties reside or last resided together.
In terms of institution of suits, women litigants are accorded with a special favour. In suits for dissolution of marriage, dower or maintenance, the Court within the local limits of whose jurisdiction the wife ordinarily resides shall also have jurisdiction.
Procedures to be followed
A separate and special procedure is established for the Family Courts. In doing so, recourse has been taken to some provisions of the CPC and even the CrPC. But that has not hampered the unique characteristics of the Family Courts when it comes to procedure. One such characteristic can be found in the manner a Family Court records evidence. Unlike the procedure of taking evidence in an ordinary suit, a Family Court may put any question to any witness for the purpose of elucidation of any point which it considers material in the case. It would not be out of place to mention that per adversarial nature of judicial proceedings ordinary courts ordinarily don't take any active role in the examination of witnesses.
Trial in camera
Another unique feature of the Family Courts is the scope of holding the trial in camera. This means close door trial that only allows the presence of persons having stake in the suit. A Family Court may, if it so deems fit, hold the whole or any part of the proceedings under this Ordinance in camera. Where both the parties to the suit request the Court to hold the proceedings in camera, the Court is bound to do so.
Compromise decree
Another important feature of the Family Courts is its statutory obligation to attempt to reach a compromise or reconciliation between the parties, if this be possible. The attempt is to be made at two different stages of any particular suit. At the pretrial stage, before framing of issues, the Court shall try to reach a compromise failing which it will frame the issues. After the close of evidence of all parties, before pronouncing judgment, the Court shall make another effort to effect a compromise between the parties failing which it will pronounce judgment.
Where a dispute is settled by compromise or conciliation, either at pre-trial or post-trial stage, the Court shall pass a decree or give decision in the suit in terms of the compromise or conciliation agreed to between the parties.
Appeal
An appeal shall lie from a judgment, decree or order of a Family Court to the Court of District Judge. An appeal shall be preferred within thirty days of the passing of the judgment, decree or order. But no appeal shall lie from a decree passed by a Family Court:
a) for dissolution of marriage; and
b) for dower not exceeding five thousand taka.
Though a decree given by a Family Court regarding dissolution of marriage is not appealable, there is an exception to this. If the decree of dissolution is given on the ground that a husband disposes his wife's property or prevents her from exercising her legal rights over it, then an appeal shall lie against this decree in the Court of District Judge.
The writer is advocate, member of Dhaka Bar Association.
