Jurisdiction of the Family Court
In the Indian subcontinent family affairs of different religious communities are governed by their respective personal laws. The precepts of personal laws of every religious community stand on the sharp contrast from the other as per their different religious sources.
Bangladesh is a pluralistic society with various religious communities with a pluralistic legal system entertaining a parallel jurisdiction with regard to separate personal laws.
On one hand, it has a uniform set of laws which are applicable to all citizens of the state irrespective of their differences, such as criminal justice system, taxation, and land laws; on the other hand, the personal affairs & family matters of different religious communities are determined by their separate personal laws.
However, our higher judiciary has been playing a proactive role in bringing progressive changes to the application of personal law remaining within the basic tenets of the religious guidance. Besides, the judiciary is also playing a beneficial role in widening the scope of remedy by correcting many institutional limits though exercising it's broad interpretative discretion.
Family Court is the forum where people seek remedy under their respective personal laws. Back in 1995, an important question came before the Court whether the jurisdiction of a Family Court is exclusive to the Muslims or it can try the cases of all other communities.
The Family Courts Ordinance, 1985 does not specifically mention anything about its jurisdiction over the people of different communities. Section 05 of the Family Courts Ordinance, 1985 only specifies the subject matters (Marriage, Divorce, Dower, Restitution of conjugal rights and Guardianship) over which the Family Court has jurisdiction but without clarifying the scope of its applicability for the non-muslim community.
The High Court Division has taken the initiative by way of Judicial activism to render the solution of the dispute in different case decisions.
In Meher Negar vs. Mojibur Rahman, it was held that provisions of the Family Courts Ordinance are applicable not only to the Muslim Community but also to other communities in Bangladesh.
A Hindu wife's claim of maintenance against her husband under this Ordinance which was accepted by the Family Court in Nirmal Kanti Das vs. Sreemai Biva Rani and recognized the right of a person 'professing any faith' has every right to bring suit regarding the issues covered under Section-5 of FCO,1985.
In the famous case, Pachan Rissi Das vs. Khuku Rani Dasi and others and Ganesh Chandra Das vs. Arati Acharjya, the HCD held that the Family Courts Ordinance is applicable to 'all citizens in Bangladesh irrespective of their religious faith'.
The Family Court while deciding the dispute shall follow and apply the personal laws of the respective parties.
A more proactive observation was made in a recent case Sree Jibon Sharma vs. Sree Subasini Sharma and others, by the Appellate Division of the Supreme Court of Bangladesh where both the parties are members of Hindu faith according to whose customs there is no provision of divorce. The trial court decreed the suit for past and future maintenance in spite of the argument made by the Advocates that the provision of the past maintenance is only applicable to the Muslim ladies and there is no provision of past maintenance but only maintenance under section 5 of the Family Courts Ordinance, 1985.
This development has formed a platform for all communities of Bangladesh. But to make the Family Court more effective, the structure of the Family Court should be reshaped and the senior judges should be appointed as the judge of the Family Court. Proper and adequate training should be provided to the judges who will adjudicate the family law cases and they must have the necessary knowledge and experience in this regard.
Such pro-people Judicial activism of the High Court and Appellate Division of the Supreme Court of Bangladesh mitigated the doubt revolving around jurisdiction of the Family Court in respect of communities other than Muslim and open a gate to avail their rights under their family laws.
Md. Nadir Khan is an associate with 'The Lawyers & Associates'