Functions and Jurisdiction of the Family Court in Bangladesh
Introduction?
The Family Court in Bangladesh plays a pivotal role in adjudicating matters related to family law, ensuring justice in domestic affairs, and addressing the complexities of family relationships. Established under the Family Courts Ordinance of 1985, these courts aim to provide a specialized forum for resolving disputes concerning marriage, divorce, child custody, and maintenance. This paper explores the functions and jurisdiction of Family Courts in Bangladesh, highlighting their significance in the broader legal framework and their impact on society.?
Historical Context?
The need for a dedicated family court system in Bangladesh arose from the inadequacies of existing legal frameworks to address family disputes effectively. Before the establishment of Family Courts, such matters were handled by civil courts, which were often ill-equipped to deal with the emotional and sensitive nature of family-related issues. The introduction of Family Courts was aimed at providing a more accessible, efficient, and less adversarial environment for resolving family disputes.?
Family Courts?
Black’s Law Dictionary?defines Family Court as such: “The court that hears matters relating to members of a family.”?
Family court is a court that has jurisdiction over domestic disputes involving the rights and duties of husband, wife, parent, or child especially in matters affecting the support, custody, and welfare of children.??It can further be defined as a court of law that hears cases involving domestic issues such as marriage, divorce and child custody. It is a court of special nature (Special Court). In Bangladesh Family Courts are established regulated under the Family Courts Ordinance, 1985 which contains 27 sections.?
Establishment of Family Court??
Section 4 of the Family Courts Ordinance, 1985 establishes the Family Courts and reads as such-?
“(1) There shall be as many Family Courts as there are Courts of [Assistant????
???????Judges].? (2) All Courts of [Assistant Judges] shall be Family Courts for the purposes?
??????of this Ordinance.? (3) All [Assistant Judges] shall be the Judges of Family Courts.”? ? ?
Accordingly, All the Assistant Judges Courts are the Family Courts in Bangladesh within the meaning of this section. Here the question lies regarding the capability of the judges of family courts who are the least experienced and newly appointed in the service whereas in India and Pakistan judges require comparatively compatible experience to hold the position.?
According to Section 4 of Family Courts Act, 2023:?
(1) For the purposes of this Act, the Government may, by notification in the Official Gazette, establish one or more Family Courts in every district: Provided that if more than one Family Court is established in a district, the Government shall, by notification in the Official Gazette, determine the local jurisdiction of such Courts.?
(2) The family court shall consist of 1 (one) judge of the rank of assistant judge or senior assistant judge.?
(3) Until the establishment of a Family Court under sub-section (1), the Court of Assistant Judge or the Court of Senior Assistant Judge under its jurisdiction shall perform the duties as a Family Court.?
Objectives of Family Courts?
Expeditious Justice: Family Courts are designed to ensure the quick resolution of disputes, minimizing the lengthy processes typically associated with civil litigation.?
Specialized Knowledge: Judges in Family Courts are trained to handle sensitive family matters, promoting an understanding of the emotional and psychological dimensions involved.?
Access to Justice: Family Courts aim to make justice more accessible, particularly for women and children, who are often the most affected by family disputes.?
Promotion of Reconciliation: These courts emphasize reconciliation between parties, encouraging mediation and negotiation rather than adversarial proceedings.?
Jurisdiction of Family Courts?
The jurisdiction of Family Courts in Bangladesh is extensive, covering a range of family law issues. Below are the primary areas of jurisdiction:?
1. Marriage and Divorce?
Family Courts have exclusive jurisdiction over matters relating to the dissolution of marriage. This includes:?
2. Child Custody and Guardianship?
One of the most sensitive areas under the jurisdiction of Family Courts is child custody and guardianship. The court considers the best interests of the child, making decisions based on factors such as:?
3. Maintenance and Alimony?
Family Courts have the authority to order maintenance for spouses and children. Key aspects include:?
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4. Inheritance and Property Matters?
Family Courts also address issues related to inheritance and the distribution of property among family members. This includes:?
5. Domestic Violence and Protection Orders?
Family Courts have jurisdiction to handle cases of domestic violence, providing protection to victims. This includes:?
6. Adoption?
Family Courts oversee adoption proceedings, ensuring that all legal requirements are met and that the best interests of the child are upheld. This includes:?
7. Restitution of Conjugal Rights?
Restitution of conjugal rights primarily falls under the Family Courts Act 2023 (FCA 2023) and previous ordinances, such as the Family Courts Ordinance 1985. Section 5 of the FCA 2023 grants Family Courts the jurisdiction to handle cases related to restitution of conjugal rights along with other family matters.?
Procedure in Family Courts?
The procedure in Family Courts is designed to be more informal and accessible compared to traditional civil courts. Key features include:?
1. Simplified Filing Process?
The filing process in Family Courts is streamlined to ensure that individuals can easily present their cases. There is minimal documentation required, making it easier for litigants, especially women, to access justice.?
2. Mediation and Conciliation?
Family Courts prioritize mediation as a means of resolving disputes. Judges often refer parties to mediation sessions, aiming to reach amicable settlements without resorting to adversarial litigation. This approach not only reduces court congestion but also fosters better relationships post-dispute.?
3. Expedited Hearings?
Family Courts are mandated to conduct hearings swiftly, with specific timelines set for different stages of proceedings. This ensures that cases are resolved in a timely manner, reducing the emotional toll on the parties involved.?
4. Informal Environment?
The courtroom environment in Family Courts is designed to be less intimidating. Judges may engage with parties in a more conversational manner, promoting open dialogue and reducing the adversarial nature often associated with legal proceedings.?
An Analysis of the?the Family Court Act 2023?
The Parliament of Bangladesh has recently enacted the Family Courts Act 2023 (referred to as FCA 2023), replacing the Family Courts Ordinance 1985, which previously governed the procedures for Family Courts in the country. Unfortunately, the new act has not fully met public expectations and has not adequately addressed the existing shortcomings and challenges of the Ordinance 1985. Apart from a few new provisions, the FCA 2023 largely resembles the flawed previous ordinance.?
The FCA 2023 introduces two significant procedural changes for Family Courts in Bangladesh: an increase in court fees for family cases and enhancing definition of the family appellate court.??
Section 25 of FCA 2023 has increased the family court cases court fee to BDT 200 from BDT 25 and after the FCA 2023 comes into force appeals against the decree of Family Trial Courts can be brought to the Courts of District Judges including to any courts of other judges equivalent to district judges, e.g., Woman and Children or Labor Courts, which will help to reduce the burden of cases. Other than that, the FCA 2023 has permitted to adduce witness evidence in the court through affidavit without being present at the trial, which has been newly added to the family courts procedures by Section 13(6) of the FCA 2023.?
Previously, Section 17(2)(b) of the Ordinance 1985 stipulated that no appeal could be made from a decree issued by a Family Trial Court for a dower not exceeding BDT 5,000. The FCA 2023 has abolished this provision and raised the dower limit for appeals to BDT 50,000. However, despite the passage of the FCA 2023, several challenges and shortcomings from the previous Ordinance 1985 persist regarding the jurisdiction of Family Courts and who is eligible to seek redress. Issues such as restitution of marital rights, parental maintenance, post-divorce support, and the lack of Alternative Dispute Resolution (ADR) options at the appellate level remain unresolved.?
According to Section 5 of the FCA 2023, Family Courts have the authority to hear and decide cases related to the dissolution of marriage, restitution of conjugal rights, dower, maintenance, and guardianship and custody of children, which mirrors the provisions of Section 5 of the previous Ordinance 1985.?
However, several significant aspects of family law, including marriage, adoption, wills, heba (gift), succession, and parental maintenance, still fall outside the jurisdiction of Family Courts even after the FCA 2023 came into effect.?
The High Court Division of the Bangladesh Supreme Court has indicated that Family Courts can address any matters “relating to or arising out of” the dissolution of marriage, restitution of conjugal rights, dower, maintenance, and guardianship and custody of children. Therefore, Family Courts possess broad jurisdiction over family matters, and the interpretation of Section 5 of the FCA 2023 should be flexible. For instance, the validity of a marriage can be examined by Family Courts, as determined by the High Court in previous cases. The ambiguity regarding who can petition the Family Court for restitution of marital rights remains unresolved, similar to the situation under the previous Ordinance 1985. Historically, there was a clear judicial guideline that only husbands could seek restitution of conjugal rights in Family Courts.?
Despite the judiciary's commendable decision, the parliament failed to resolve this dilemma through the FCA 2023, which is disappointing. Another shortcoming of the FCA 2023 is the absence of provisions for Alternative Dispute Resolution (ADR) at the appellate stage. While the new act includes Sections 18 and 19, which address appeals from family trial court decisions and aim to alleviate pressure on district judges, it should have also tackled the growing backlog of cases by incorporating explicit ADR provisions for the appellate stage.?
In contrast, the parliament successfully introduced Section 89C to the Code of Civil Procedure 1906 through the Code of Civil Procedure (Amendment) Act 2006, allowing ADR in civil case appeals to help reduce case backlogs. However, there has been no similar initiative for family disputes. Although both Section 10 of the previous Ordinance 1985 and Section 11 of the new FCA 2023 include provisions for pre-trial proceedings that allow for ADR in family disputes, there are no provisions for ADR at the appellate stage that could have been included in the FCA 2023.?
Conclusion?
The Family Court system in Bangladesh represents a critical advancement in the pursuit of justice for family-related issues. By providing a specialized forum for resolving disputes, these courts aim to protect the rights of vulnerable individuals, especially women and children. Despite the challenges they face, Family Courts continue to evolve, promoting a more equitable legal landscape for families. As society progresses, it is essential to strengthen the capacity of Family Courts through increased resources, awareness campaigns, and training for judges and legal practitioners. By doing so, Bangladesh can ensure that its Family Courts remain effective in upholding the principles of justice and equity in family law, ultimately fostering a healthier and more harmonious society.?
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