The creation of Family Court is the result of our legislators’ rigorous legal analysis. In order to provide quick resolution of family conflicts for litigants in the traditional civil and criminal courts, the Family Courts Ordinance came in 1985.
The women’s community had long called for the establishment of family court. A Presidential Order from 1985 established the Family Court. This court would handle cases involving the following five issues: guardianship, dowry, maintenance, restoration of a conjugal rights and divorce.
The Family Court came in response to the requirement for a local and distinct legal system. For the swift resolution of family disputes. The framing, promulgation, and implementation of this Ordinance has partially met the needs of the women’s society.
There are some complex family issues that can only resolve by legal action. In the nation’s traditional complex, pricey, time-consuming legal system, finding a solution to all of these issues would have been nearly impossible. For women, there was no special justice system.
Therefore, keeping all these issues in mind, the goal of this Ordinance was to establish a permanent and independent judicial system. It is for the quick, inexpensive, and effective resolution of family affairs. Husband and wife, Muslims and non-Muslims of all religions can establish conjugal rights and resolve family conflicts here.
Although the court had the intention of quickly resolving family issues. But for variety of reasons litigants are unable to receive justice under this Ordinance. Case complexity, lack of judges, and delay in the issuance of summons notifications are all working against it.
By slightly altering the military regime’s ordinance, the Cabinet of Ministers recently adopted the draft of the Family Court Act, 2022. Cabinet Secretary Khandaker Anwarul Islam mention in a press briefing, “The draft law present in place of the Family Court Ordinance, 1985 under the direction of the High Court.”
The new law provides a wider forum for appeal, requiring that all judges should be district judge. Who disposes of the appeal arising out of family courts. The Act will apply to the whole of Bangladesh except Rangamati, Hill Bandarban and Hill Khagrachari districts. Fifty years after the independence of the country, family courts did not exist in the three hill districts.
As a result, the cases went to the joint district judge’s court following the civil procedure. The residents of the three hill districts are still not getting the benefits of the special law. Section 9 of the proposed draft law provides for amendment of written statement at any stage of the case. The family court also has magisterial powers. The family court can also issue any interim order during the case.
Jurisdiction of Family Courts.
Subject to the provisions of the Muslim Family Law Ordinance, 1961, the Family Courts shall have jurisdiction to receive, try and dispose of suits relating to or arising out of five stated and related matters. The matters are divorce, restitution of conjugal rights, dowry, maintenance and guardianship.
Previously, matters of Guardian and Wards Act (Guardian and Wards Act) used to be decided by the District Judge. Currently, this matter is under the jurisdiction of the Family Court.
Successive stages of filing a case in the Family Court:
Petition – To file a case, a plaint is require and submit to the court. The plaint must include the following items – 01. Name of the court in which the suit is file, 02. Plaintiff’s name, detailed description and residential address, 03. Defendant’s name, detailed description and residential address, 04.
In case the plaintiff or defendant is a minor or natural person, details of the guardian on his behalf, 05. Facts showing the cause of complaint and the place and date of jurisdiction of the court, 06. Value of litigation, 07. Remedy sought by the plaintiff, 08. The case has to be filed with a fixed fee of Tk 60/- including court fee, dowry and maintenance, case process fee Tk 5/-, power of attorney Tk 230/-, RG Tk 10/- and postage Tk 18/-, a total fee of Tk 320.
Besides court fee of Tk 232/- has to be paid in all types of cases in family court. There is a system of providing free legal aid to the poor people if they apply to the Legal Aid or Legal Aid Committee under the Ministry of Law.
Different Stages of Family Court Cases
The steps in a family case are as follows- Step 1- Filing of case with Serestadar, 2- Receipt of case and issue of number, 3- Issue of summons, 4- Appearance of defendant, 5- Filing of written statement, 6- ADR (Mediation) ), 7- issue formation, 8- Action under Section 30, 9- S.D, 10- Final hearing,11- Further hearing, 12- Argument, 13- Promulgation of judgment, 14- Preparation of decree, 15- Filing of issued case.
But if the defendant is absent then the stages of the case will be changed to – Ex parte hearing, Ex parte taking of evidence, and Ex parte order, 14- Preparation of decree and 15- Proceedings will reach the filing stage. Moreover, family court judges can exercise their magisterial authority. Arresting the judgment debtor in order to recover the required dowry may result in property attachment, etc.
The two steps in the Family Court Ordinance Pre-trial, post-trial, and ADR (Mediation) are available to resolve the conflict. So, if the issue resolve through ADR, the stress of litigation is less. Pre-trial and post-trial facilities, which enable a significant proportion of family conflicts to be settled and rights to be swiftly realized, are one of the benefits of the Family Court Ordinance Act.
As a result, priority should be Sections 11 and 13, respectively. Yet in practice, its efficacy is not as obvious. Above all, allowing the family courts to resolve all problems originating from marriage would have decreased retaliation and courtroom activity.
To increase the energy and effectiveness of the family court, some recommendations get ahead 1) Ending the crisis by establishing sufficient courts and selecting qualified judges.
2) Implementing Order 5, Rule 19A and 19B of the C.P.C. in a manner compatible with Section 7 of the Ordinance when a summons is issue.
If summon is sent through both post and process server only then it should be considered to have been properly issued. Within three working days of the lawsuit’s filing, both summons must be issued simultaneously. Under no circumstances shall the defendant’s attendance date be set for longer than a month.
3) The matter will decide in a ex-parte hearing if the defendant does not appear in court as scheduled after receiving the summons. It’s time to end managing of court employees in unethical way and going on lengthy dates.
4) After submission of written statement, if the defendant appears, the judge will participate effectively in the pre-trial hearing. Mediation should have the highest priority since it will help the legal system succeed.
5) Avoiding overly technical details during the case’s trial and gathering relevant evidence on pertinent topics should focus on rendering a decision quickly.
6) Family appeals shouldn’t remand because they don’t entail complicated legal concerns in their resolution. Provision should insert for the establishment of specialized appellate courts with a focus on appeals, ongoing cases, and miscellaneous family matters by stating a clause that the defendant respondent must pay at least 30% to 50% of the sum awarded if they participate in family appeal cases.
7) Execution cases of family matters cases still remain unattended. Thus, simplifying CPC’s provisions for the execution of family decrees is essential
8) Using the family court’s magisterial authority when necessary,
9) Refraining from giving the judge in the family court extra duties. Such as hearing matters that are not related to families.
10) The matter will rapidly resolve if the power of attorney clause gets no implementation while obtaining statements in the absence of a witness, plaintiff or defendant.
11) The case’s date should never go beyond 30 days.
12) If all issues arising from marital relations gets solution in the same court rather than in separate courts the burden of cases in matters of suppression of women and children, prevention of domestic violence, prevention of dowry, guardianship, etc will be less. And people will truly get benefits from the justice system.
13) It has become imperative to establish distinct family courts in each of the three hill districts.
The fundamental goal of the statute was to provide quick relief and use a conciliatory strategy to encourage a settlement between the parties. These objectives, however, were not achievable.
For the family courts to operate well, they must take a number of suitable measures. It is sincerely hope that everyone who ralet to it would take the problems seriously and step forward to take decisive action.