Amendment proposal of Family Court Ordinance

Jahirul Alam
Assistant Judge and Judge, 3rd Family Court, Dhaka

Bangladesh does not have uniform family code. Respective personal

laws largely dealt with their matrimonial issues such as dissolution of
marriage, dower applicable for Muslim religion, maintenance, custody
and guardianship of child. Bangladesh Bureau of Statistics (BBS) found
in 2018 that a divorce took place every hour in Dhaka. Therefore, family
suits are increasing day by day. Three family courts of Dhaka bombard
with about 8000 cases/suits. The Family Courts Ordinance, 1985 covers
five types of family matters which are dissolution of marriage, dower,
maintenance, restitution of conjugal rights and guardianship and custody
of children. This Ordinance applies to all citizens irrespective of
religion. This was decided by the honourable High Court Division in the
case of Pochon Rikssi Das Vs Khuku Rani Dasi and others [50 DLR 47].
But there are some issues which create hindrance in disposal of family
suits.
Jurisdiction of Family Courts
Section 5 empowers that Subject to the provisions of the Muslim Family
Laws Ordinance, 1961 (VIII of 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.

Section 7 of Muslim Family Laws Ordinance, 1961 (VIII of 1961)

reveals modus operandi of notice of talaq. But consequence of non-
service has not been enumerated. Moreover, following decisions creates
confusion:

From the alone provision of law it clear that the mere absence of
communication of divorce notice to the chairman under section 7(1) of
the Ordinance, 1961 does not make the divorce invalid- Md. Nurul Islam
Vs Nur Ayesha Begum 16 BLC (2011) HCD 10.
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Non-service render ineffective Nur Nabi Vs. Saima Akhtar Dolley 13
BLC (2008) 327

Moreover, if Arbitration council is not formed then divorce will be

executed after elapse of 90 days. But this provision is harsh as well as it
is violative of norms of Islamic principles as tradition mulsim law
encourage the arbitration. Moreover, family court cannot stay the
proceedings of Arbitration council if there is any fraud, violation of rule
4 Muslim Family Laws Rule, 1961. Fraud is very rampant in notice
serving.
There is no enforcement mechanism for restitution of conjugal rights. It
is ordains in many decisions that
The wife cannot be compelled to live with husband even if he obtains
decree for restitution of conjugal rights PLD 1976 Lah. 670.
The relief granting restitution of conjugal rights to the husband means
ordering an unwilling wife to live with her husband, which was
criticized as barbarians by Lord Herchel one hundred year ago. Noor
Akhtar Vs. A. Mahmud Chowdhury 16 BLD (1996) 396 / 1 BLC (1996)
HCD 404.
Therefore, this portion of provision can be repealed.
There should be provision in Family Court Ordinance that declaration of
void of kabinnama can be filed in family court. It is ordains by
honourable High Court that a regular suit in ordinary civil court for
getting decree of simple declaration as to that a kabinnama is fake and
fraudulent is maintainable 27 BLD 235.
Provision is absent regarding visitation right of father or mother of
minor. It creates confusion whether family court can provide custody of
minor in favour of plaintiff and simultaneously provide visitation right
to defendant. On the other hand, if plaintiff possess the minor and files a
suit for custody in family court of that minor but he/she loses in the suit
then what will happen to minor. In that case whether court will transfer
the minor to defendant? Problem lies here because there may have other
claimant of that minor. Other claimant like, grandmother, grandfather,
sister, aunt can file another suit.

Service of summons
First of all, if we look into the service of summons we can see that
summons shall be served in the manner provided in rules 9, 10, 11, 16,
17, 18, 19, 19A, 20, 21, 23, 24, 26, 27, 28 and 29 of Order V of the

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Code; and a summons so served shall be deemed to be due service
thereof on the defendant (Section 7 of the Family Court Ordinance,
1985). But as we know, Code of Civil Procedure, 1908 has been
amended in 2012 which incorporates some important changes in
servicing summons such as summons by e-mail, courier service.
Moreover, rule 25 of Order V is not applicable in the Family Courts
Ordinance, 1985. Therefore, it is not clear that how family court will
serve summon in a foreign State. Furthermore, Code of Civil Procedure,
1908 divulges in rule 31 that if the Court is satisfied that the summons
has been served by any of the modes as is mentioned in this Order, it
shall be deemed that the summons has been duly served. But the Family
Courts Ordinance, 1985 does not contain such type of provision nor has
this rule been applicable for the Ordinance by dint of sub-section 3 of
section 7.

Rejection a plaint
A family court has jurisdiction to reject a plaint as enumerated under
sub-section (8) of section 6 under the following grounds:-
(a) where it is not accompanied by true copies of plaint including the
schedule and the lists of documents required under sub-section (7);
(b) where the cost of service of summons and postal charges for notice
required to be paid under section 7(5) are not paid;
(c) where the fees required to be paid at the time of presentation of the
plaint under section 22 are not paid.
This section further says that save as otherwise expressly provided by or
under this Ordinance, the provisions of the Evidence Act, 1872 (I of
1872), and of the Code except sections 10 and 11 shall not apply to
proceedings before the Family Courts.

It is clear that rule 11 of Order 7 is not applicable in Family Courts,

therefore, if the family suit is barred by any law then there is no clear
provision whether family court has any jurisdiction to reject that plaint.

Amendment of Plaint
There is no provision of amendment of plaint. Our honourable High
court division also prohibits amendment in various pronouncements. But
it is equally true that if this provision is inserted it will use as a
mechanism of delay. Number of time of amendment can be limited to

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one or two. Moreover, it may allow amendment if any further
development is arose e.g., if divorce took place or wife gave birth a child
or child died.

Number of Judges and Time frame of written statement

Clause (a) of sub-section (1) of section 7 says that when a plaint is
presented to a Family Court, it shall fix a date ordinarily of not more
than thirty days for the appearance of the defendant. But family courts
hardly fulfil this requirement. There is a practical hinderance in
compliance of this section because a family court in Dhaka bombarded
with 2500 cases. It is difficult to fix a date within 21 days as the case
dairy and register containing cause list may not have enough space to
deal with such types of huge number in a day.
Section 7 also says that when a plaint is presented to a Family Court, it
shall-
(b) issue summons to the defendant to appear and answer the claim on
the date specified therein;
(c) send to the defendant, by registered post with acknowledgement due,
a notice of the suit.
Section 9 contains the provision regarding consequence of non-
appearance of plaintiff and defendant of the suit. Party cannot avail the
benefit of recent amendments adopted by Code of Civil Procedure in
rule 9A and 13A of Order 9. These rules are about directly setting aside
dismissal and ex-parte decree if the concern party appear within 30 days
of the impugned order.
Section 4 of this Ordinance stipulates that . (1) There shall be as many
Family Courts as there are Courts of 1[Assistant Judges].
(2) All Courts of 2[Assistant Judges] shall be Family Courts for the
purposes of this Ordinance.
(3) All 3[Assistant Judges] shall be the Judges of Family Courts.
Sub-section 3 of section 4 should be repealed and there should be
exclusive family courts.

Pre-trial proceeding
Pre-trial proceeding is an important stage in a family court to resolve the
matter in mediation. But if a judge presides over mediation proceeding
and after failure of that proceeding same judge tried the suit then it can

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create a biasness upon that judge. To resolve this issue, district legal aid
office may be entrusted with this responsibility. Moreover, mediation
award of legal aid office me be treated as a compromise decree of family
court and can be enforceable like other decree of family court.

Recording of evidence
Sub-section (7) of section 12 transpires that the evidence of each witness
shall be taken down in writing, in the language of the Court, by the
presiding Judge of the Court and shall be signed by such Judge. It is one
of the causes of delay in disposal of suit because plaintiff and defendant
deposed same thing which has been written in their respective pleadings.
It is nothing but wastage of valuable time of court. However, sub-section
(6) of section 12 ordains that the Court may permit the evidence of any
witness to be given by means of affidavit. But this provision is not
mandatory and lawyers seem to be reluctant to use this device.
Procedure of Artha Rin Adalot Ain can be introduced. Moreover, digital
recording of evidence from home and aboard should be introduced.

Interim Maintenance
It is seen that a family suit may be continued more than 05 years. 3rd
Family Court of Dhaka has about 20 cases which are pending more than
05 years. Generally, unemployed women file suit for maintenance of
their children and themselves. If a suit continued more than five years
how an unemployed woman can support her children for more than five
years. It is said that section 16A may resort to in this regard. Section
16A concedes that where, at any stage of a suit, the Family Court is
satisfied by affidavit or otherwise, that immediate action should be taken
for preventing any party from frustrating the purpose of the suit, it may
make such interim order as it deems fit.
But here two difficulties arise first one is what would be the amount of
maintenance. Secondly if any one violates the order of this court what
will be the consequences? Court has no enforcement mechanism in this
regard. Section 16 deals with enforcement of decrees but not orders.

Enforcement of decrees
Section 16 (5) ordains that The Court may, if it so deems fit, direct that
any money to be paid under a decree passed by it be paid in such
instalments as it deems fit.

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But provision does not limit the highest number of instalment, therefore,
this provision is frequently misused.
Execution of Order and Contempt of Family Courts

19. A person shall be guilty of contempt of the Family Court if he,

without lawful excuse,-
(a) offers any insult to the Family Court;
(b) causes an interruption in the work of the Family Court;
(c) refuses to answer any question put by the Family Court, which he is
bound to answer; or
(d) refuses to take oath to state the truth or to sign any statement made
by him in the Family Court;
and the Family Court may forthwith try such person for such contempt
and sentence him to a fine not exceeding two hundred taka. But this
provision is very lenient in nature. Family court may be empowered with
power of section 228 of Penal Code, 1860. Family court will use this
power if any one violates the order of the court provided under section
16A of this Ordinance.

Compensation, interest on decretal amount and Cost

Furthermore, it is not clear that whether family court can impose interest
upon the decretal amount as section 34 of the Code of Civil Procedure,
1908 is not applicable in the family court. It is seen that family court
fixed adjournment cost upon the parties who sought unnecessary
adjournments but there is no enabling section in the Family Courts
Ordinance. Beside these there should be a penalty provision (like bank-
if a debtor fails to pay an instalment in bank, it will impose a penalty on
the principal amount) in case debtor fails to pay the decretal amount
after a certain time.

Appeal
His lordship in Hosne Ara Begum Vs. Md. Rezaul Karim 43 DLR 543
held that Scheme of the Family Court is quick disposal of a case
between the husband and wife and for such purpose under section 20 of
the Family Court Ordinance, 1985, provisions of the Evidence Act and
Code of Civil Procedure (Except section 10 and 11 thereof) has been
excluded. The Court of appeal below can only decide the appeal and no

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power to send the case on remand to the family court has been given tom
the court of appeal below.
But is seen in many instances that appellate court is ignoring this
pronouncement. Confusion arises as the Ordinance is silent about
remand. An amendment can be proposed where section can either allow
the remand or prohibit the remand.

Appearance through agents

Section 21 says that if a person required under this Ordinance to appear
before a Family Court, otherwise than as a witness, is a pardahnashin
lady, the Family Court may permit her to be represented by a duly
authorised agent.
There are many disable (e.g., mentally disable, speech problems)
persons file or contest family suits but for this provision they cannot
contest properly.

Execution of Order and Contempt of Family Courts

19. A person shall be guilty of contempt of the Family Court if he,

without lawful excuse,-
(a) offers any insult to the Family Court;
(b) causes an interruption in the work of the Family Court;
(c) refuses to answer any question put by the Family Court, which he is
bound to answer; or
(d) refuses to take oath to state the truth or to sign any statement made
by him in the Family Court;
and the Family Court may forthwith try such person for such contempt
and sentence him to a fine not exceeding two hundred taka. But this
provision is very lenient in nature. Family court may be empowered with
power of section 228 of Penal Code, 1860. Family court will use this
power if any one violates the order of the court provided under section
16A of this Ordinance.
Conclusion
Purpose of amendment of a law is to fulfil the lacuna of that law. Thus,
amendment is a continuous process. Therefore, to fulfil above mentioned
vacuum and smooth running of the family court an amendment of
Family Courts Ordinance is a dire need.