Family Courts Ordinance, 1985 aims at resolving legal disputes related to dissolution of marriage, dower, and maintenance, restitution of conjugal rights and guardianship and custody of children. This ordinance was promulgated in 1985. The contents selected for consideration in the ordinance are compiled from Muslim law, Hindu law, the Code of Civil Procedure, Evidence Act, dissolution of muslim Marriage Act, and the muslim Family Law Ordinance 1961.
This ordinance extends to whole of Bangladesh expect the hill districts of Rangamati, Khagrachari, and Bandarban. This law provides that all courts of munsifs shall be Family Court and the munsifs shall be the judges of Family Courts. Basically Family Courts shall have exclusive jurisdiction to entertain, try and dispose of matters relating to dissolution of marriage, dower, and maintenance, restitution of conjugal rights and guardianship and custody of children. So, Family court is an important institution to solve the family problems.
Family Courts face a lot of problems and obstacles in most of the aspects of its practical and operating area which are discussed in the article.
Construction of Family Courts
According to section 4 of the Family Courts Ordinance, 1985 provides that 'there shall be as many family courts as there are courts of Assistant Judges, all courts of Assistant Judges shall be family court for the purpose of the Ordinance and all Assistant Judges shall be the judges of family courts'.
Most of the Family Courts have no separate court rooms and separate judges. For this reason, family cases take years together to come to an end.
Jurisdiction of Family Courts
According to section 5 of the Family Courts Ordinance, 1985 'the jurisdiction of family courts has been sharply ascertained by its parent law. The Ordinance asserts that subject to provision of Muslim Family Laws Ordinance, 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: dissolution of marriage, restitution of conjugal rights, dower, maintenance, guardianship and custody of children'.
But Family Courts Ordinance does not include some other related matters which are felt necessary, such as, inheritance, repression of women, domestic violation etc.
Courts fee to be paid for the institution of suit in a Family Court
The Family Courts Ordinance does not follow the rules of the Court-Fees Act, 1870. According to section 22 of the Family Courts Ordinance, 1985, 'the court-fees to be paid on any plaint presented to a family court shall be twenty-five taka for any kind of suit'. It cannot be said that all those who seek remedy in the family courts are poor. A rich man may have the cause to file a plaint before a family court. In the cases of the rich men, the government is being deprived of reasonable court-fees illogically.
Contempt of Family Courts
Contempt of any court is considered as an offence in all events. A person who commits this offence should be punished reasonably. Family court may forthwith try such person for such contempt and sentence him to a fine not exceeding taka 200. Nowadays taka two hundred as a fine is considered very poor. Moreover there is no alternative punishment if the money is not realized.
Inherent power of the Family court
Under the family courts ordinance, a family court does not enjoy an inherent power but a civil court does. Absence of inherent power is a drawback due to which family courts fail to give some remedy by means of applying discretionary power depending on the sense of equity, justice and good conscience.
Family Courts: Whether courts for muslim community only
Sometimes it is a matter of debate that family court is a court for Muslim community only. In the Family Courts Ordinance, it is not clearly stated that this law is exercised by the people of all religions. For that only a Muslim family takes the privilege of this law. People of other religions seldom go to the Court.
Family Courts Proceedings in Camera: Whether possible
The necessity of camera trial is undeniable for maintaining secrecy of disputes between the married couples, avoiding publicity in the matter and expediting the disposal of the family court cases in an amicable way. Expectantly, the Family Courts Ordinance under section (11) provides the procedure for trial of cases in camera if requested by the parties to the suits. But this provision exists in theory and is seldom applied in practice; hence the common public as well as the justice seekers in the family courts is unaware of the provision, which makes them averse to take recourse in the family courts.
Dual option for custody of children, dower and maintenance disputes
Though the legal position was clarified long ago, a considerable portion of lawyers, as the BLAST report reveals, still thinks that there are dual options for claiming custody of children, dower and maintenance of wives, that is, for custody of children and dower money and maintenance one can bring suit under section 100 and 488 of Cr PC; again for this one can bring a suit in a family court.
Lengthy process of summons and decree
Family courts have primary responsibility for enforcing Bangladesh's personal laws, but are plagued with procedural and administrative problems. Lawyers, former judges, and activists told Human Rights Watch that enforcement of court orders can take years, and is often riddled with problems around summons and notice procedures and processes for executing court decrees.
Lack of knowledge about Family laws and Family Courts Ordinance, 1985
Most of the people don't know the family laws and they don't know how to apply these laws. For this reasons problems are still problems. So, general people must be knowledgeable about family laws and Family Courts Ordinance of 1985.
From the surveyed field work of Human Rights Watch, it is found that the family courts face a lot of problems and obstacles in most of the aspects of its practical and operating area which are mentioned above. The judges, lawyers and clients agree to take steps for the amendment of the Ordinance for the purpose of overcoming the problems. The Government should take initiatives and necessary steps to amend the Family Courts Ordinance of 1985 to comply with the present situation.
The writer is a PhD researcher on family court ordinance and practicing lawyer
