This Article is a revised version of my earlier article under the same title

that has been published in Bangladesh Journal of Law, Vol. 10 Nos. 1& 2,
June & December 2006, pp. 97-118.
This version contains the latest information up to June 2007

This article may be cited as:

1. Zahidul Islam Biswas, ‘The confusions and uncertainties thwarting
Family Courts in Bangladesh’ June, 2007, [www location], [date of access]

Article
The confusions and uncertainties thwarting
Family Courts in Bangladesh

Zahidul Islam Biswas±

±
Zahidul Islam Biswas is an advocate of the Supreme Court of Bangladesh,
currently with the Centre for the Study of Law and Governance, Jawaharlal Nehru
University, New Delhi. At the time of working on the article some parts of the
article were published in The Daily Star, a popular English daily in Bangladesh,
for readers comments, and some readers commented accordingly. The author
cordially acknowledges those valuable comments. He can be reached at:
[email protected].

Page 1 of 46
 Abstract

The purpose of establishment of Family Courts in Bangladesh was

to ensure a quick, effective and amicable disposal of some of the

family matters, which the traditional civil courts had failed to

successfully deal with. Unfortunately, the noble aim of introducing

Family Courts has not been expectantly achieved though already

more than two decades have passed after the courts’ coming into

operation. There are many and diverse type of reasons behind such

letdown. Given the socio-economic grounds, the procedural as well

as substantive loopholes in the ordinance and related laws are not

negligible. Besides, there are some misconceptions. This article

endeavours to examine those confusions, uncertainties and

misconceptions in the light of judicial decisions of the country’s

higher courts. Hence, this article can be a tremendous help for many

practising lawyers and acting judges. However, the prime purpose

of this study is to bring these issues firstly to the lawyers’ and

judges’ authorities that can make the lawyers and judges conscious,

can seek judicial interpretation from the highest judicial authority of

the land; secondly to the legislative authority that can amend the

laws to the necessary extent.

Page 2 of 46
PRELIMINARIES

Establishment of Family Courts was on the one hand an expression of our

sophisticated legal thought, on the other hand, an acknowledgement that

our traditional civil courts had failed to successfully deal with the suits

relating to family affairs. Family Courts were established by the Family

Courts Ordinance 19851 to serve the purpose of quick, effective and

amicable disposal of some of the family matters. This purpose, though not

perceptible from the preamble of the Ordinance, is evident in different

places of the body of the Ordinance. The anxiety of the framers of the

Ordinance for the said speedy disposal of the family cases is palpable in

fixing only thirty days for the appearance of the defendant2, in providing

that if, after service of summons, neither party appears when the suit is

called on for hearing the court may dismiss the suit.3 The purpose is again

manifest in providing a procedure for trial of cases in camera if required for

maintaining secrecy, confidentiality and for effective disposal of some

complicated and sophisticated matters which may not be possible under

normal law of the land. Once more, the Code of Civil Procedure 1908

except sections 10 and 11 and the Evidence Act 1872 have not been made

applicable in the proceedings under the Family Courts4 which is another

sign that indicates the concern of the lawmakers to dispose of the family

matters in congenial atmosphere of the Family Court, which was proven to

be absent in the lengthy procedure of civil courts.

Page 3 of 46
Unfortunately, the noble aim of introducing Family Courts has not been

expectantly achieved though already more than two decades have passed

after the courts’ coming into operation. There are many and diverse type of

reasons behind such letdown. Given the socio-economic grounds, the

procedural as well as substantive loopholes in the ordinance and related

laws are not negligible. Responding to these loopholes a drastic amendment

was made to the Ordinacne in 1989.5 Yet, the law is not flawless, resulting

in giving rise to some confusions and uncertainties. Besides, there are some

misconceptions. Hence, this article endeavours to examine those

confusions, uncertainties and misconceptions in the light of judicial

decisions of the country’s higher courts.

Hopefully, every practising lawyer and acting judge in the Family Courts is

aware of these confusions and uncertainties. Again, every lawyer and judge

is supposed to know the clear position of law. So, what is the justification

of such a study? In fact, before writing this article while I was discussing

about the issues with the lawyers, judges and experts, many of them asked

me the same question. Here I could not but tell something about this. It is

expected that a judge or a lawyer will constantly monitor the judicial

pronouncements, which is very much necessary to control and

countercheck the subversive tendencies in the legal system. But we cannot

deny the fact that the actual scenario in our country is different. An

observation enshrined in the BLAST research report seems quite pertinent

here:

Page 4 of 46
 It appears that a good fraction of lawyers practicing in district level are not

conversant with law, procedure or the legal system as a whole. They seem

not aware of the change of law or up-to-date position of law. Some

lawyers of this type participated in our meetings, commented and

recommended on some issues. In some cases those comments and

recommendations are outdated, incorrect, hence, irrelevant.6

Hence, this article can help those lawyers who are unaware, or who have

little scopes to be aware, of the clear position of the law; and as a

consequence of which they are running their family courts dealings with

dangerous misconceptions, resulting in even denial of justice in some cases.

This article that has brought together almost all the major confusions and

uncertainties in the Family Courts Ordinance can also be helpful to the

acting judges, who feel these issues in different suits in different occasions.

However, the prime purpose of this study is to bring these issues firstly to

the lawyers’ and judges’ authorities, like Bangladesh Bar Council or

District Bar Associations, Judicial Administrative Training Institute etc.,

that can make the lawyers and judges conscious, can seek judicial

interpretation from the highest judicial authority of the land; and secondly

to the legislative authority that can amend the laws to the necessary extent.

At the outset, I have tried to see what and exactly where these confusions,

uncertainty and misconceptions lie. For this purpose, I for the most part

have relied on an unpublished research report7 of Bangladesh Legal Aid

and Services Trust (BLAST) that identified a cluster of issues relating to

Page 5 of 46
the Family Courts over which, as the report claims, there are either

confusions or uncertainties. The report also identified some other socio-

legal factors hindering the family courts attainting its purpose.

For this article I have chosen seven topics as to which there are either

confusions or misconceptions or uncertainties. In order to get a clear idea

about the issues under discussion I primarily relied on the BLAST research

report8 though I had to check the background papers9 of the research report

frequently to get a good understanding of some specific issues. In

conducting the legal analysis, I have mainly relied on the judicial

interpretations enshrined in published judgments in various law reports10 of

the country. Secondly, I have discussed the issues with my colleagues at

my workplace11 and other practicing lawyers12 as well as presiding

judges13.

CONFUSIONS, MISCONCEPTION & UNCERTAINTIES

WITH THE FAMILY COURTS

1. Family Courts: Whether courts for Muslim community only14

By the Family Courts Ordinance 1985, the Family Courts gets exclusive

jurisdiction for expeditious settlement and disposal of disputes in only suits

relating to dissolution of marriage, restitution of conjugal rights, dower,

maintenance, guardianship and custody of children. And he courts begin

working all over the country except in the three hill districts of Rangamati,

Page 6 of 46
Bandarban and Khagrachhari. Soon after the court begin functioning,

questions raises as to whether the Family Courts will deal only with the

family matters of Muslim community or of all communities?

Before going into the detail discussion it seem necessary to produce the

section verbatim. Section 5 of the Ordinance reads as follows:

“5. Jurisdiction of Family Courts – Subject to the provisions of the

Muslim Family Laws Ordinance, 1961 (VII 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.”

In Krishnapada Talukder V Geetasree Talukder15 the question was whether

a woman, Hindu by faith, could file a suit for maintenance against her

husband under the Family Court Ordinance, 1985. The honourable judge of

the High Court Division held that “Family Courts have jurisdiction to

entertain, try and dispose of any matter in clauses (a) to (e) of section 5 of

the Family Courts Ordinance only between the litigants who are Muslims

by faith.”16

Page 7 of 46
One of the arguments in this case was “in view of the preamble and the

territorial extent of the Ordinance as stated in section 1(2) of the Ordinance

to the effect that it is expedient to provide for the establishment of Family

Courts within the whole of Bangladesh except in the former Chittagong

Hill tract..... the reliefs in the matters mentioned in clauses (b) (d) and (e) of

section 5 of the Ordinance can be brought by any person irrespective of

their religious faith. But ... the reliefs in the matters in clauses (a) and (b)

cannot be sought by the persons other than Muslim by faith.”17

Rejecting the argument, the judgment held that:

According to well-settled rule of constructions, scopes of all the clauses

are required to be taken analogously and not separately. In this respect,

we like to quote a paragraph from the book, Maxwell On The

Interpretation of Statutes, 12th Edn, at page 289 as follows:

Where two or more words which are susceptible of analogous

meaning are coupled together, ... they are understood to be used

in their cognate sense. They take, as it were their colour from

each other, the meaning of the more general being restricted to a

sense analogous to that of the less general.”

Therefore, less general matters in clauses (a) and (c) restricts the general

clauses in (b) (d) and (e), otherwise the expression “subject to the

provisions of the Muslim Family Laws Ordinance”, and inclusion of all

the matters in one group become meaningless.18

Page 8 of 46
However, just few days later19 of the above-mentioned judgment, there

came another judgment of the High Court Division expressing

diametrically opposite opinion. The Honourable judge of the High Court

Division in Nirmal Kanti Das Vs Sreemati Biva Rani20 held as following:

Section 3 of the Ordinance reads as follows:

Ordinance to override other Laws: – The provision of this Ordinance shall

have effect notwithstanding anything contained in any other laws, for the

time being in force.

From the expression ‘other laws’ used in section 3 of the Ordinance, it

appears that the Family Court Ordinance, 1985 controls the Muslim

Family Laws Ordinance, 1961, and not vice versa. Any person professing

any faith has a right to bring a suit for the purposes mentioned in section 5

of the Family Court Ordinance. A Hindu wife is therefore entitled to bring

a suit for maintenance against her husband under the Family Courts

Ordinance.21

In the like ways, in Meher Nigar Vs Md Mujibur Rahman22 it was held that:

The Muslim Family Laws Ordinance, 1961 introduced some changes in

the orthodox Muslim personal laws relating to polygamy, talaq and

inheritance and in order to keep those reformative provisions of the

Ordinance of 1961 effective it has been provided in section 5 of the

Ordinance of 1985 that the provisions of earlier Ordinance of 1961 shall

not be affected by the provisions of the Ordinance of 1985. But the

matters which shall not be affected by the Ordinance of 1985 have

enumerated specifically in sub-sections (2) and (3) of section 23 of the

Ordinance of 1985. But this in our opinion does not mean that the

Page 9 of 46
 provisions of the Family Courts Ordinance, 1985 are applicable to the

members of the Muslim Community only and not to other communities

which constitute the populace of Bangladesh.23

Following such dissimilar decisions, the confusion regarding jurisdiction of

the Family Court was natural. And such confusion continued until 1997

when a larger bench of the High Court Division of the Supreme Court in its

path-finding judgment in Pochon Rikssi Das Vs Khuku Rani Dasi and

others24 removed all the confusions. The special bench of the High Court

Division comprised of three Judges declared in a very straightforward way

that Family Courts Ordinance applies to all citizens irrespective of

religion25 upheld that:

The Family Court Ordinance has not taken away any personal right of any

litigant of any faith. It has just provided the forum for the enforcement of

some of the rights as is evident from section 4 of the Ordinance,26 which

provides that there shall be as many Family Courts as there are Courts of

Assistant Judge and the latter courts shall be the Family Courts for the

purpose of this Ordinance.27

It seems quite pertinent to refer some of the submissions which the Court

relied on. It was submitted28 that:

If Family Court Ordinance is intended to apply only to the Muslim

community then there was no reason for not providing it accordingly as

has been done in case of Muslim Filmily Laws Ordinance, 1961. The

Family Courts Ordinance should have been named as Muslim Family

Page 10 of 46
Courts Ordinance. .......in the Family Courts Ordinance there was no

exclusive exclusion of any community and unless there is specific

exclusion the law will have general application that is, it will apply to the

citizens of all faiths. ..... if sections 3, 5, and 24 of the Family Courts

Ordinance are read together it will be evident that guardianship and

custody of children were made exclusively triable in the Family Courts

and unless the law is applicable to all how a non-Muslim can get a relief

in the said matters. ...... 5 matters enumerated in section 5 of the Family

Courts Ordinance are matters of personal laws of the citizens of different

faiths who follow different rules in matters enumerated in the section or

do not have any rule at all as in the case of Dower and Dissolution of

Marriage in case of Hindus. All citizens may not be concerned in all

matters but that cannot be a ground to hold that the Ordinance applies only

to the Muslims. ......Family Courts Ordinance has not encroached upon the

personal laws of the citizen of any faith. This Ordinance provided that

Family Courts will have jurisdiction to entertain and decide suits on the

matters enumerated in section 5 subject to the provisions of the Muslim

Family Laws Ordinance meaning thereby that while disposing of a matter

amongst the Muslim the provisions of Muslim Family Laws Ordinance

shall have to be kept in mind. .....had there been no exclusive jurisdiction

of Family Courts there may be complications in cases filed by husband

and wife professing different faiths. ....not all the personal laws of the

Muslim have been included in section 5. Some provisions of Muslim

personal laws such as Waqf, Gift, parentage etc. have been kept out of the

provisions of the Family Courts Ordinance. So it cannot be said that this is

only for the Muslim.29

Page 11 of 46
It was further submitted that:

.....the provision of our Family Courts Ordinance is exactly same as in

West Pakistan Family Courts Ordinance 1964, and .... that the Pakistan

Supreme Court in Muhammad Azam Vs Muhammad Iqbal as reported in

PLD 1984 (SC) 95 has held that the Pakistan Family Courts Ordinance is

applied to non-Muslims. .....if the Family Court Ordinance is not

applicable to citizens irrespective of their faith then why the Hill Districts

which are also inhibited by the Muslims have been excluded from the

purview of the Ordinance.30

Accordingly, there should not remain any confusion regarding the

jurisdictions of the Family Courts. Henceforth, it seems needless to

mention that a Family Court can try suits under The Hindu Married

Women’s Right To Separate Residence and Maintenance Act 1946,31 the

law that has given a right to the Hindu wives to live in separate houses and

to get the maintenance, but has not provided any forum to go to enforce the

right.32

Another matter needs to be clarified that the Family Courts Ordinance does

not extend to the hill districts of Rangamati, Bandarban and Khagrachhari.

The fact is that initially the hill districts used to be governed by Chittagong

Hill Tracts Regulation of 1900 and it was repealed in 1989 but as no new

law has been introduced for administering the area, as per provisions of

General Clauses Act the repealed law is still in force and the Regulation is

still continuing, resulting in exclusion of Family Courts there. This does not

Page 12 of 46
mean that tribal people cannot take recourse of a Family Court. The suits

among aboriginal or adivasi or tribal people can be tried by a Family Court

if they reside within the local limits33 i.e. territorial jurisdiction of a Family

Court.

2. No provision for amendment of plaint? 34

As to the scope of amendment of plaint in the Family Courts many lawyers

and well as judges seem confused. Without indicating the place in the

Ordinance where it has been told, some lawyers allege that the dearth of

provision for necessary amendment of plaint has been creating problems.

They reason that it is not possible even for good lawyers to prepare a good

plaint at a single chance. And it also happens that there arises logical and

legal ground after submission of the plaint. This rigid provision obstructs

many good causes.

Unlike the lawyers, some Judges of the Family Courts strongly support the

absence of provision for amendment of plaint. Their argument is simple; as

the Family Courts are specially established for the speedy disposal of

family cases, the provision for amendment of plaint would oppose the

purpose by destroying the time of a case.

Page 13 of 46
Let us move to see what is inside the Ordinance. Though there is no

specific provision denying amendment of plain, the place of assumption of

such a provision can be marked out in section 6 (9), which reads as:

A document which ought to be produced in court by the plaintiff where

the plaint is presented, or to be entered in the list to be added or annexed

to the plaint, and which is not produced or entered accordingly, shall not,

without the leave of the Court, be received in evidence on his behalf at the

hearing of the suit: provided that the Court shall not grant such leave save

in exceptional circumstances.

Now, we can examine what is judicial interpretation of the provision. In

Azad Alam Vs Jainab Khatun and others35 the full Bench of Appellate

Division of the Supreme Court upheld the view that plaint cannot be

amended under the Family Courts Ordinance. Though the learned

Advocate of the case argued that Family Courts Ordinance being silent

about amendment of pliant the Court got power under section 6 of the

General Clauses Act to pass any order necessary to give relief, the Court

rejected the same in view of the provision under section 20 of the Family

Courts Ordinance which provides “ Save as otherwise expressly provided

by this Ordinance the provisions of the CP Code, except sections 10 and 11,

shall not apply to the proceedings before the Family Court.”

However, after few months later, the a High Court Division Bench in

Nazrul Islam Majumdar Vs Tahmina Akhtar alias Nahid36 and another

Page 14 of 46
expressed opposite view, though in exceptional circumstances. The Court

held that:

An amendment of the plaint insofar as it does not change the nature and
37
character of the suit would be allowed always in a suit.

And the guiding principle for amendment of plaint, as the Court opined in

the judgment, is that it ought to be made for the purpose of determining the

real question in controversy between the parties to any proceedings. There

lies power of he court and the principle applicable to the amendment of the

plaint is also applicable to the amendment of written statement.38

The fact of the above mentioned case was that the amendment was sought

for by the wife in her own suit bringing to notice certain facts that accrued

or happened after the suit was filed and it was to the effect that she

divorced her husband as per provisions of law. The Court expressed that:

... if the wife has legally divorced her husband the prayer made the wife in

her plaint that she would be allowed maintenance would be deleted as her

maintenance would not be allowed after she had divorced and if the wife

had legally divorced the husband the suit by the husband for restitution of

conjugal life may not also be maintainable on that evidence. this,

therefore, is a issue vital for both the parties to be decided by the Court on

evidence and that being the position for ends of justice this amendment

needs to be made and it would be incumbent upon the court to do so. 39

The Court also expressed its opinion in the following words:

Page 15 of 46
 In this sort of case the interest of justice needs be served keeping in mind

that the other parties should not be taken by surprise by the amendment of

the plaint which would change the nature and character of the suit and if

justice demands that the amendment should be done it would be within the
40
discretion of the court to allow such an amendment for ends of justice.

In the case of Satish vs Govt of India AIR 1960 (Cal) 278, the Calcutta

High Court reiterated the same principle. It has been again reiterated in the

case of Rajeshawar vs Padam AIR 1970 (Raj) 77. And it is the consistent

view that court can take into account subsequent view event necessitating

amendment by addition of new relief that may be allowed to do complete

justice. 41

However, as the appellate Division delivered different opinion in

Azad Alam Vs Jainab Khatun and others42 it is still a confusing issue.

3. Family Courts proceedings in camera: whether possible? 43

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 are

Page 16 of 46
unaware of the provision, which makes them averse to take recourse in the

Family Courts.

4. 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 CrPC; again for this one can bring a suit

in a family court.44 In fact, such misconception is not an anomaly when

earlier we got two diametrically opposite judicial view regarding this.

In the early 1990 in Abdul Khaleque V Selina Begum45 a High Court

Division Bench held that:

.... the purpose of the family Courts Ordinance is to provide for

speedy disposal of family matters by the same forum. There will be

anomaly and multiplicity of proceedings, if, in spite of the

establishment of family court, the Magistrate constitutes to entertain

cases for maintenance. Provisions made in the Family Courts

Ordinance have ousted the jurisdiction of the Magistrate to entertain

application for maintenance which is a family court matter.46

Page 17 of 46
But just after four years in 1994 in Meher Nigar Vs Md Mujibur Rahman 47

a Division Bench expressed a complete opposite view to the effect that the

Criminal Courts as usual way entertain a case filed under section 488 of the

Code of Criminal Procedure for maintenance. In section 5 of the Family

Courts Ordinance it has been mentioned that the Court shall decide the suits

filed in respect of the five subjects enumerated in the section. There is

difference in between a suit and a case. And Family Courts Ordinance has

not created any impediment in the proceeding of the case filed under

section 488 of the Code of Criminal Procedure. That is, the gist of the

decision is that one may choose any of the two forums.

Following this two judgments, confusion emerged as a natural

consequence. But such confusion did not continued to long as the Special

High Court Bench comprising three judges dissolved the issue finally in

Pochon Rikssi Das Vs Khuku Rani Dasi48 in 1997.

To dissolve this issue the Court considered (i) section 3 of the Family

Courts Ordinance which provides that the provisions of this Ordinance

shall have effect notwithstanding anything contained in any other law for

the time being in force, (ii) section 4 which provides that all courts of

Assistant Judges shall be the Family Courts for the purpose of this

Ordinance, and (ii) section 5 that provides that the Family Courts shall have

exclusive jurisdiction to entertain, try and dispose of any suit relating to the

subjects enumerated in this section that includes maintenance. The Court

Page 18 of 46
held that these sections clearly indicate the ouster of the jurisdiction of

other courts in dealing with the matters enumerated in section 5 of the

Ordinance.49

However, the court did not overlook the argument as submitted in Meher

Nigar Vs Md Mujibur Rahman that the word ‘suit’ as mentioned in section

5 indicates a civil proceeding and the cases filed under section 488 of the

Code of Criminal Procedure is a criminal procedure; so there is a no ouster

of the jurisdiction of the Criminal Courts in the matters relating to

maintenance. The Court held that:

... it is well settled that a proceeding under section 488 of the Code

of Criminal Procedure is quasi criminal and quasi civil in nature and

this section has given certain powers to the Magistrates to grant

maintenance to wives and children who are unable to maintain

themselves. Sub-section (1) of section 488 of the Code of Criminal

Procedure is quasi civil in nature as order for maintenance is passed

under this part. But sub-section (3) is quasi criminal. So, in a word,

section 488 of the Code of Criminal Procedure is both quasi civil

and quasi criminal in nature. On consideration of the provisions of

sections 3, 4, 5, and 27 of the Ordinance, we hold that the

jurisdiction of the Magistrate is clearly ousted. Before coming into

force of this Ordinance maintenance matters used to be decided by

the Magistrates under section 488 of the Code of Criminal

Procedure. Now section 27 of provides that all suits, appeal and

Page 19 of 46
 other legal proceedings relating to, or arising out of any matter

specified in section 5 pending in any Court immediately before the

commencement of this Ordinance shall continue in the same Court

and shall be heard and disposed of by that Court as if this Ordinance

had not been made. This clearly says that after the coming into force

of the Family Courts Ordinance the criminal court jurisdiction has

been ousted in respect of awarding maintenance except in case of

pending Proceedings (award) except in case of pending

proceedings.50

It can be noted here that the abovementioned view was also taken in

Pakistani jurisdiction in Adnan Afzal vs Capt. Sher Afzal.51 Eventually, the

position is that for custody of children, dower and maintenance disputes

one has to resort to a Family Court under the Family Courts Ordinance, and

not to any other courts.

5. How much of the Code of Civil Procedure applicable?

While on the one hand, Section 20 (1) of the Ordinance has clearly

expressed that the provisions the Code except sections 10 and 11 shall not

apply to the proceedings before the Family Courts, unless expressly

provided by or under this Ordinance; on the other hand the Supreme Court

in different suits at different times has rendered differing opinions as to

whether or how much of the Code of Civil Procedure will apply to the

Page 20 of 46
proceedings before the Family Courts. The reason behind the confusion or

uncertainty over the issue is, therefore, obvious.

Not surprisingly, the issue emerged as a great problem in the very first

suit52 of the Family Court of Ramgonj of Lakshmipur in 1985, the very

year of the commencement of the Family Courts Ordinance. The fact of the

suit was that the plaintiff, the husband, filed the suit against the defendants,

his wife and others, for restitution of his conjugal life. In the said suit the

plaintiff also filed an application for temporary injunction restraining the

marriage of her wife, who claimed that she had divorced her husband,

elsewhere till the disposal of the suit. The prayer for injunction was

rejected; then the plaintiff moved the learned District judge and preferred

appeal, wherein also the prayer was rejected on the ground that the

provisions of Code of Civil Procedure granting injunction is not applicable

in the proceedings under Family Courts Ordinance. Consequently the

plaintiff moved the High Court Division53 which also confirmed the

decision of the lower courts holding that Family Courts Ordinance 1985 is

a self contained Ordinance providing the mode and method of trial and

disposal of suits, and as section 20 thereof makes all the provisions, except

sections 10 and 11, of the Code inapplicable, no other provisions of CPC

will be applicable in the proceedings of Family Courts.54

In the case, the learned Advocates for the plaintiff-petitioner submitted,

among others, that though in specific terms the provisions of Order 39,

Page 21 of 46
Rule 1 of the Code has not been made applicable in a proceeding under

Family Courts Ordinance, to serve the purpose of the legislation the Court

may apply Order 39, Rule 1 of the Code of Civil Procedure. Section 141 of

the Code provided that the procedure provided in the Code of Civil

Procedure in regard to suits shall be followed as far as it can be made

applicable in all proceedings in any Court of Civil Jurisdiction. The

proceeding before the Family Courts is a civil proceedings and as such

section 141 of the CPC may come into play.55

After placing some leading decisions56 from Indian and Bangladeshi

jurisdiction, some other arguments were also submitted, the essence of

those submissions were that the strict application of sections of the

Ordinance may some times frustrate the true intention of the lawmakers. In

fact, as it was submitted, it is a sound rule of interpretation that a statue

should be so construed as to prevent the mischief and to advance the

remedy according to the true intention of the makers of the statute. But

none of the arguments was accepted by the learned judge of the High Court

Division.

Similarly in 1993 in Azad Alam Vs Jainab Khatun and others57 the full

Bench of Appellate Division of the Supreme Court upheld the view that

plaint cannot be amended under the Family Courts Ordinance. Though it

was argued that Family Courts Ordinance being silent about amendment of

pliant the Court got power under section 6 of the General Clauses Act to

Page 22 of 46
pass any order necessary to give relief, the Court rejected the same in view

of the provision under section 20 of the Family Courts Ordinance which

provides “Save as otherwise expressly provided by this Ordinance the

provisions of the CP Code, except sections 10 and 11, shall not apply to the

proceedings before the Family Court.”

Interestingly, in 1994 just after three months later from the above

mentioned Appellate Division decision, a differing opinion came from a

Divisional Bench of the High Court in Nazrul Islam Majumdar vs Tahmina

Akhter alias Nahid and another.58 The aggrieved party moved to the High

Court Division as a Family Court as well as Family Appellate Court, i.e.,

the District Court allowed the amendment of a plaint under Order 6 Rule 17

of the Code of Civil Procedure. It was argued that due to the bar of section

20 of the Ordinance Code of Civil Procedure will not apply, but the courts

below erred in law by holding that all provision as under Code of Civil

Procedure would apply.

The High Court Division did not accept the argument, but at the same time

in the judgment it did not precisely mention whether whole or how much of

the Code of Civil Procedure will apply. However, the Court clearly

expressed that it is discretion of the Court to allow an amendment for ends

of justice. And the guiding principle for amendment of plaint is that it

ought to be made for the purpose of determining the real question in

controversy between the parties to any proceedings.59

Page 23 of 46
Here are the points ‘ends of justice’ and ‘the purpose of determining the

real question in controversy’ which were absolutely ignored in earlier two

decisions.

It was the same year 1994 when another Divisional Bench of the High

Court in Younus Mia vs Abida Sultana Chhanda60 flashed light on the issue

from a broader outlook. The case was against an order of a Family Court

allowing the defendant, a Purdanishin Muslim lady, to examine herself on

commission as per provision of Order 26 of the CPC, which on appeal was

also affirmed by the learned District Judge.

In this judgment, the learned Court interpreted the section 20 of the

Ordinance as follows:

Upon reading this section it appears to us that the meaning of the

expression ‘proceedings before the Family Courts’ as understood by

the Ordinance itself is the key to the solution. The word

‘proceeding’ in a general sense means ‘the form and manner of

concluding judicial business before a Court of Judicial Officer’

(Black’s Law Dictionary. p.1368).

Keeping this meaning of that term ‘proceeding’ in mind, we now

look into the scheme of the Ordinance so far it is relevant for our

purpose by section 4 and 5, after respectively providing for the

establishment of Family Courts and the jurisdiction thereof, the

Page 24 of 46
 Ordinance prescribes procedures applicable to the proceedings

before the Family Courts regarding (i) institution of suits and

plaints, (ii) issuance of Summons and Notice, (iii) Written

Statement, (iv) consequence of non appearance of parties, (v)

recording evidence, (vi) writing the judgment and (vii) summoning

witnesses respectively in Sections 6, 7, 8, 9, 12, 15 and 18, that is,

by these sections the Ordinance substitutes for itself the provisions

of Orders 4, 7, 5, 8, 18, 20 and 16 of the Code of Civil Procedure

respectively. Therefore, when section 20 of the Ordinance says that

the provisions of the Code ‘shall not apply to proceedings before the

Family Courts’ it means that provisions of the Code shall not apply

which are in the Ordinance as prescribed modes for conducting

Judicial business by the Family Courts.61

The Court mentioned that it is a canon of interpretation that an attempt

should be made to discover the true legislative intent by considering the

relevant provision in the context of the whole statute, and subsequently

observed that Code of Civil Procedure itself does not create any Court nor

does define the word ‘Court’. Its preamble says that it is the intended to

regulate the procedure of the Courts of Civil Judicature. Basically, the Code

of Civil Procedure is a procedural law and, therefore, there is no difficulty

in its applications to proceedings of a civil nature suit pending before the

courts of any kind. Therefore, the bar in applying the Code to the

proceedings before the Family Courts imposed by section 20 of the

Page 25 of 46
Ordinance is not and cannot be an absolute bar, but it must be a qualified

and limited bar, as already pointed out. Enactment of section 20 was thus

only necessary due to certain procedures prescribed in the Ordinance.62

The learned Court finally held that:

..only those provisions of the Code shall not apply to the Family

Courts where alternative provisions have been prescribed for the

Family Courts in the Ordinance.63

It is quite pertinent to mention that this Court not only pronounced its own

judgment but also expressed its findings that the decision of the learned

Single Judge in Moqbul Ahmed vs Sufia Khatun and others64 that section 20

“ has not provided that other provisions of the Code will also be applicable

in a suit filed under the Family Courts Ordinance” is not a correct

decisions.65

It is the fact, which may appear surprising to many more, that in the

judgment of Saleha Begum vs Dilruba Begum66 pronounced at the end of

2000, the single Judge of a High Court Bench reverted to the early position

by holding that:

Section 20 of the Family Courts Ordinance is a bar to the application of

the Civil Procedure Code in Family Court proceedings with the exception

of sections 10 and 11 under the under the Family Courts Ordinance. That

being the position the lower appellate court cannot take evidence under

Order XLI Rule 27 of Code of Civil Procedure as the provisions of appeal

Page 26 of 46
 in the Family Courts Ordinance does not provide for taking of evidence. It

being a special law must be applied strictly. The appellate Court cannot

also remand the case to the trial Court as the Family Courts Ordinance

does not provide for any such provision.67

Not surprisingly, the judge in the abovementioned case has bypassed the

High Court Division decision in Younus Mia vs Abida Sultana Chhanda68

and relied on the Appellate Division decision in Azad Alam Vs Jainab

Khatun and others69 as per the Constitutional directive that the law declared

by the Appellate Division shall be binding on the High Court Division.70

Nevertheless, at the same time, we cannot neglect the High Court Division

decision in Younus Mia vs Abida Sultana Chhanda71 that was founded upon

apparently some very cogent and convincing grounds. In fact, we must

think the issue again and decide that (a) whether the procedural bar to the

provisions of the Code of Civil Procedure including the sections 151, 141

and all such essential power as are available to Civil Court embodied in the

said Code, as contemplated in the section 20 of the present Ordinance is

absolute or a qualified one? And that (b) whether a civil court, and not a

tribunal, can be conceived of without it inherent and ancillary powers?

6. Interlocutory Order: whether appeallable?

At the commencement of the Ordinance, there was no provision for interim

or interlocutory order by Family Courts. Though the necessity of inclusion

Page 27 of 46
of such provision in the Ordinance was felt from the beginning72, the

Family Courts have run without the same around four years. It was only in

1998 when the Supreme Court was to decide for the first time on the issue

in Moqbul Ahmed vs Sufia Khatun and others73. The fact of the suit was

that the plaintiff, the husband, filed the suit against the defendants, his wife

and others, for restitution of his conjugal life. In the said suit the plaintiff

also filed an application for temporary injunction restraining the marriage

of her wife, who claimed that she had divorced her husband, elsewhere till

the disposal of the suit. The prayer for injunction was rejected; then the

plaintiff moved the learned District judge and preferred appeal, wherein

also the prayer was rejected on the ground that the provisions of Code of

Civil Procedure granting injunction is not applicable in the proceedings

under Family Courts Ordinance. Consequently the plaintiff moved the High

Court Division. The single judge of the High Court, though acknowledged

the need of interlocutory orders in the cases like this one, confirmed the

decision of the lower courts by holding that Family Courts Ordinance 1985

is a self contained Ordinance providing the mode and method of trial and

disposal of suits, and section 20 thereof makes all the provisions, except

sections 10 and 11, of the Code inapplicable; hence a Family Court cannot

grant any interlocutory order which is given under the provision of CPC.

This case once more highlighted the necessity of investing the Family

Court with the powers to grant interlocutory orders. And just within one

year from the pronouncement of the judgment, be it a coincidence or a

Page 28 of 46
response to the issue in the judgment, the provision for interlocutory order

was inserted in the Ordinance by an amendment Act.74 And that is Section

16A, which reads as follows:

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 orders

as it thinks fit.

From now, there comes another legal aspect that whether an interim order

is appeallable.75 In 1994, the High Court Division in judgment of Younus

Mia vs Abida Sultana Chhanda76 held that appeal before the Court of the

District Judge against an interlocutory order passed by the Family Court

was not maintainable.77 The court reasoned that:

...according to Sub-section 1 of section 17, appeal shall lie from ‘order’

of a Family Court to the District Judge. Subsection 1 of section 2 of the

Ordinance does not contain definition of ‘Order’ but subsection 2 thereof

states that the words used in the Ordinance but not defined shall have the

meaning assigned to them in the Code. According to section 2 (14) of the

Code ‘Order’ means ‘the formal expression of any decision of a Civil

Court which is not a decree’. An interlocutory order is, therefore, not such

an order finally disposing of any disputes or claim in the suit itself. An

interlocutory order is an order passed by way of an aid to proper

adjudication of any dispute or claim. The word ‘order’ used section 17

cannot be read as ‘any order’. Had it been the intention of the legislature

that ‘any order’ passed by the Family Courts, shall be appeallable before

the Court of District Judge, they could have done so by inserting any order

Page 29 of 46
 instead of ‘order’ has been done in sub-section 1 of section 30 of the

Special Powers Act as hereunder:

“30(1) an appeal from any order, judgment or sentence of Special

Tribunal my be preferred to the High Court Division within thirty

days from the date of delivery of passing thereof.”78

But it seems that the High Court Division afterwards deviates from this

position, as in two other judgments in the year 2000 delivered opposing

views. In Atiqur Rahman vs Ainunnahar79 it was held that:

The Order in its widest sense may be said to include any decision rendered

by a court on question between the parties of a proceeding before the court

and the same can be construed or read either final or interlocutory and

both are appeallable.

Similar decision came in Firojul Islam vs Zahanar Akhter80 also, where it

was held that “The order under challenge is an interlocutory order and the

same is appeallable.”

Following such conflict of decisions of the higher courts, both the judges

and practitioners of the Family Courts feel indecisive while dealing with an

interlocutory order.

7. Execution of Family Courts’ decree for money: still entangled

with confusions

Page 30 of 46
The disrepute of the Family Court Ordinance 1985 that it does not provide

adequate provisions for effective execution of its decree for money has

been wiped up in 1989 by substitution81 of subsection (3) of section 16 by

which Family Courts have been invested with the powers of a Magistrate of

the first class for the enforcement of the decree passed by it, while the

earlier provision being that the money decreed by the Family Courts was to

be recovered as a public demand at the discretions of the District Judge.

Nonetheless, the execution process is still under the shade of confusions

and misunderstandings.82 Some lawyers and judges seem confused as to the

determination of executing court83, which indicates that there is procedural

non-specification. Again some lawyers and judges think that though the

present law keeps provision for sentencing judgment-debtor to

imprisonment for a maximum term of three months for unpaid decretal

amount, this provision does not serve the purpose of a decree, as many

judgment–debtors prefer to suffer this civil three months imprisonment than

to pay decreed money.84 This means (1) judgment debtor can choose

whether to pay the decree-money, or to suffer imprisonment; and (2) that

the punishment for non-payment of decreed money is imprisonment for

maximum three months.

Clearly, there is confusion as well as misunderstanding about the process of

execution. The discussion below of the relevant provisions of the

Ordinance and the case laws will make it clear. Section 16 of the Ordinance

provides for the enforcement of decrees. Sub-section 3 of the section states:

Page 31 of 46
 (3) Where the decree relates to the payment of money and the

decretal amount is not paid within the time specified by the Court,

the decree shall, on the prayer of the decree-holder to be made with

in a period of one year from the expiry of the time so specified, be

executed-

(a) as a decree for money of a Civil Court under the

Code, or

(b) as an order for payment of fine made by a Magistrate

under the Code of Criminal Procedure, 1898 (Act V of

1899)

and on such execution the decretal amount recovered shall be paid

to the decree-holder.

Again subsections (3A) and 3B provide that:

(3A) For the purpose of execution of a decree under subsection 3(a),

the Court shall be deemed to be a Civil Court and shall have all the

powers of such Court under the Code.

(3B) For the purpose of execution of a decree under subsection 3(b),

the Judge of the Family Court shall be deemed to be Magistrate of

the first class and shall have all the powers of such Magistrate under

the Code of Criminal Procedure, 1898 (Act V of 1898), and he may

issue a warrant for levying the decretal amount due in the manner

Page 32 of 46
 provided in that Code for levying fines, and may sentence the

judgment debtor, for the whole or any part of the decretal amount

remaining unpaid after the execution of the warrant, to

imprisonment for a term which may extend to three months or until

payment if sooner made.

From subsection 3 of section 16, it is clear that a decree may be executed in

two ways, i.e., (a) as a decree for money of a Civil Court under the Code of

Civil Procedure, or (b) as an order for payment of fine made by a

Magistrate under the Code of Criminal Procedure, 1898. But it is unclear

here that who is to decide in which way the decree for money to be

executed. Is it the executing court or the decree holder85 or judgments

debtor86? Again, as an executing court for execution of the decree for

money which court, civil or criminal, should be prioritised?

The legal provision regarding this is absent in any other place in the

Ordinance. And I have not got any satisfactory answer to this through my

discussions with the practicing lawyers.87 Henceforth, I have tried to

discuss the issue in the light of judicial interpretations.

Usually Family courts award decree for money in the suits for dower and

maintenance. Dower (mahr) is a sum of money or other property which the

wife is entitled to receive from the husband in consideration of the

marriage.88 On the other hand ‘maintenance’ includes food, clothing, and

Page 33 of 46
lodging. After divorce wife is entitled to maintenance up to Iddat period;89

which may extent three months.90 And maintenance of children, the word

of maintenance, along with food, clothing and lodging as per definition,

includes other necessary expenses for mental and physical well being of a

minor, according to his status in society. Educational expenses were

included in the definition in Ahmedullah vs Mafizuddin Ahmed.91 So,

decree for money is in some cases to enforce the rights of a wife or to meet

the basic necessity of a child. In fact, the decree for money in the Family

Courts is distinguished from fine imposed upon an accused-convict in a

criminal proceeding which is of the nature of a financial punishment. Fine

is a charge upon the assets of the convict as a public dues.92 But decretal

money of Family Courts is not public dues; rather it is rightful gain of a

decree holder.

So, while acting on executing a decree for money, the executing court

should keep in mind the purpose of family court decree for money. Hence,

realisation of the decretal money should be the first priority, and

imprisonment should be the last option. Only when the assets of the

judgment debtor cannot cover the decretal amount, and when there is no

way out for realisation of the same, the judgment debtor shall have to

undergo imprisonment for the term fixed by the court for default in

payment of decretal money. There should not be any option left to the

judgment holder to plead that he will undergo further imprisonment for a

fixed term in lieu of payment of the decretal amount of money.93 If the

Page 34 of 46
judgment debtor is allowed to avoid payment of the decree-money by

exercising his option by undergoing imprisonment for default in payment

of the same, the very purpose of passing the decree will be frustrated.

For the above reasons, when a decree of money is put before family Court

for execution, the Family Court should proceed firstly as a Civil Court

under the Code of Civil Procedure. And if the decree is not satisfied

through civil process, only then a Family Court should act as a Magistrate

Court under Code of Criminal Procedure, and sentence the judgment debtor

to imprisonment. However, if a Family Court for the purpose of executing a

decree for money initially begins working as a Magistrate Court, it must

start its proceeding by issuing warrant for levy of fine ( as the decretal

amount is treated as fine for execution in magistrate court) under the

provision section 286 of the Code of Criminal Procedure. And if decretal

amount is not recovered in this way, only then the Magistrate Court may

sentence the judgment debtor to imprisonment.

Our next focus is on another important matter relating to execution. Some

lawyers and judge still think the maximum term for imprisonment for the

failure to satisfy decree for money is three months. Here is no doubt a

misunderstanding which will be removed just now.

Subsection (5) of section 16 provides that:

Page 35 of 46
 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.

And subsection 3B provides that:

For the purpose of execution of a decree under subsection 3(b), the

Judge of the Family Court shall be deemed to be Magistrate of the

first class.... , and he may issue a warrant for levying the decretal

amount due in the manner provided in that Code for levying fines,

and may sentence the judgment debtor, for the whole or any part of
94
the decretal amount remaining unpaid after the execution of the

warrant, to imprisonment for a term which may extend to three

months or until payment if sooner made.

From the underlined part of the above provisions it is clear that court may

sentence judgment debtor for whole or any part of the decretal amount.

Thus when a judgment debtor has not paid the total of 5,000 taka decretal

money, he may be sentenced upto three months imprisonment, again when

judgment debtor has paid 4,000 taka out 5,000 taka decretal money, the

court may award sentence of three months for this 1,000 unpaid decretal

amount.

For the cases of decretal money to be paid in instalments, the legal position

was clarified in the case of Maksuda Akhter vs Md Serajul Islam.95 The fact

of the case, if brief, was that Maksuda Akhter was married to Md Serajul

Page 36 of 46
Islam and thereafter they were divorced. Subsequent thereto, Makshuda

Akhter filed a suit for realisation of dower money and maintenance. The

suit was ultimately decreed and the decree-holder, Maksuda Akhter, put

the decree into execution. On the prayer of the judgment debtor 40

instalments were granted by the Court, each instalment being taka

13,875.02 only to be paid by the month. The first instalment was not paid.

Consequently the judgment holder filed an application for executing the

first instalment and sending the judgment debtor to suffer imprisonment for

three months. The judgment debtor suffered the imprisonment but did not

pay the amount of the first instalment. The judgment debtor did not also

pay any instalment which was subsequently due. Then the decree-holder

filed another application to direct the judgment debtor to suffer civil

imprisonment for further three months for the failure to pay the instalment

of August, 1998. The application was rejected as the court understood that

as the judgment-debtor once has suffered imprisonment for three months,

he shall not have to suffer imprisonment any more and he shall have not to

pay the decretal money at all.

Against this judgment and order, the decree-holder filed a petition for

revision in the High Court Division. The learned judge of the High Court

Divison held that:

A fresh and separate cause of action will arise for failure to pay

money of each and every instalment for the purpose of sending the

Page 37 of 46
 judgment-debtor to imprisonment for his failure to pay the money

under each instalment.96

Against this High Court Division decision the judgment debtor appealed in

the Appellate Division of the Supreme Court, which aslo confirmed the

decision. The Appellate Division comprising of four judges, observed that

suffering imprisonment of three months was an execution for one

instalment only in respect of Taka 13,000.00 and odd whereas the total

decree was for Taka three lac and odd to be paid in 40 instalments. As a

matter of fact, the execution was for one instalment, and there is no legal

bar to proceeding with the execution under section 16(3) of the Family

Courts Ordinance for the unpaid amount.97

So, the math is simple in that if a judgment-debtor is allowed to pay

decretal money in instalments, he will be liable to suffer imprisonment for

up to three months for failure to pay each and every instalment.

CONCLUDING REMARKS

As is evident from the above study98 on the seven topics, there is no

confusion regarding jurisdiction of Family Courts, camera trial or regarding

filing of suit relating to dower and custody of children and guardianship;

what is there is only the misconception. But it is clear that there is enough

scopes for confusion regarding amendment of plaint, interlocutory Order

and application of CPC in the Family Courts, as there are contradictory

Page 38 of 46
opinions on these issues, and apparently there is no specially attentive

decision of the Appellate Division clarifying the actual legal positions of

those issues, as was done in Pochon Rikssi Das Vs Khuku Rani Dasi and

others99 case which clarified the legal position as to Family Court

jurisdiction and dual option for filing suits for dower, guardianship and

custody of children. As to execution of the decree, the provisions of the

Family Courts Ordinance are not as clear as needed. The issue that when a

judgment debtor suffered imprisonment for failure to pay decretal money,

whether he would be exempted from the unpaid decree money for which he

suffered imprisonment, or that decree-money would be recoverable through

further execution process, is still unclear. The judges and lawyer society

seem grossly divided on the issue.

No doubt, such confusions, uncertainties, misconceptions and difference of

opinions are thwarting the Family Courts. And these should not be allowed

to run anymore. Logically, there may be differing opinions as to how the

misconceptions should be removed, or the confusion resolved, or

uncertainties eradicated. But it is expected that there will be none to oppose

the necessity of dong so. Therefore, keeping in view the purpose of

establishing the family courts, all the concerned authorities should,

separately as well as collectively, take necessary steps regarding this

immediately.

********

Page 39 of 46
1
XVII of 1985. The ordinance was made by the President of the Peoples Republic of

Bangladesh on 28.3.1985 and was published in the Bangladesh Gazette, Extra on

30.3.1985.
2
section 7(a)
3
Section 9(1)
4
Though there are contradictory opinions on this; see below note 36.
5
By Act No. XXX of 1989
6
See note 7, at p.31.
7
The report entitled “Towards identifying the advocacy issues concerning Family courts

and Nari O Shishu Nirjaton Domon Tribunal” was prepared in October 2005 by PIL and

Advocacy Cell of Bangladesh Legal Aid and Services Trust (BLAST), which had been

working on the issues all a year round. The report in its opening statements claims:

“BLAST is well aware of the fact that there are many constraints, legal or non-

legal, substantive or procedural, for which the Family Courts and Nari O Shishu

Nirjtaton Domon Tribunals are not being able to work efficiently. What exactly

are those reasons? And what are the ways to get out of those constraints? To find

out the answers of the questions, BLAST, PIL and Advocacy Cell, began working

one year ago. As the primary steps, it arranged advocacy issue raising meetings in

all of its branches throughout the country. Judges, practicing lawyers, public

prosecutors, political leaders, social activists, local govt. representatives,

development activists, journalist, victims of different offences, in strait words,

people from all walks of life have spoken in those meetings. They have not only

spoken and discussed matters from their own experience, but also rendered many

invaluable recommendations. The report is based on those common people as

well as experts’ speech, discussion and recommendations as well.”

Hence is the reason that induced me to rely on the report to a large extent.

Page 40 of 46
8
Id.
9
For example, the meeting minutes of the advocacy issue raising meetings arranged by

BLAST in 19 District Bar Associations.

10
Especially on Dhaka Law Reports (DLR), Bangladesh Legal Decisions (BLD),

Bangladesh Law Chronicles (BLC), Bangladesh Law Times (BLT) and Mainstream Law

Reports (MLR). In very limited cases help from other law reports or foreign jurisdiction

has been taken.

11
Head office, Bangladesh Legal Aid and Services Trust
12
The lawyers practicing in the Family Courts of different districts as I have met them at

the time of my BLAST Unit Offices visits.

13
Who are personally known to me, and who I have met at different meetings, roundtables

etc.
14
Questions regarding family court jurisdiction came from some lawyers of the district Bar

of Patuakhali, Rajshahi, Rangpur, and Mymensing; as referred in the BLAST report at p.

4.
15
14 (1994) BLD 415;
16
Ibid., 417
17
Ibid., 416
18
Id.
19
The former judgment came on 5th June 1994, and the latter on 25th July 1994
20
14 (1994) BLD (HCD)413
21
Ibid., at p. 415
22
14 (1994) BLD (HCD) 467
23
Ibid., at p. 469
24
50 (1998) DLR (HCD) 47
25
Ibid., at p. 53
26
Ibid., at p. 52
27
Ibid., at p. 53

Page 41 of 46
28
Submitted by Mr. Khondokar Mahbubuddin Ahmed, Senior Advocate, who appeared

before the Court as an amicus curiae.

29
Supra note 24, at p. 49-50
30
Ibid., at p. 50
31
Act No. XIX of 1946.
32
So far, the aggrieved party under this Act had to take recourse to time consuming civil

court. It is decided the Pochon Rikssi case that Family Courts Ordinance has provided a

forum for speedy and effective disposal of issues in the Act.

33
Section 6(1) of the Ordinance provides as follows:

“Every suit under this Ordinance shall be instituted by the presentation of a plaint

to the Family Court within the local limits of whose jurisdiction –

(a) the cause of action has wholly or partly arisen; or

(b) the parties reside or last resided together:

Provided that the suits for dissolution of marriage, dower or

maintenance, the Court within the local limits of whose jurisdiction the wife

ordinarily resides shall also have jurisdiction.

34
The issue was brought by some lawyers from the district Bars of Bogra, Comilla,

Jessore, Patuakhali, and Mymensingh; as referred to in the BLAST report, at p. 8.

35
1(1996) BLC (AD) 24; judgment delivered on 23rd October 1993
36
47(1995) DLR (HCD) 235; judgment delivered on 23rd January 1994; however, it could

not be learnt whether the HC Bench was aware of the Appellate Division decision in In

Azad Alam Vs Jainab Khatun and others

37
Ibid., at p. 236
38
Ibid., at p. 237
39
Ibid., at pp. 236 - 237
40
Ibid., at p. 237

Page 42 of 46
41
Kannan vs Chiruda, AIR 1960 Ker. 93; as referred to in 47(1995) DLR (HCD) 235, at

p. 237
42
Supra note 35
43
Question regarding camera trial was raised by some lawyers from Jessore, Rajshahi,

Chittagong, Pabna Bar, as reffered to in BLAST report, at p.8.

44
The issue is raised by some lawyers from Jessore, Tangail and Rajshahi Distrct Bar

Association; as referred to in BLAST report at p. 9

45
42 (1990) DLR (HCD) 450
46
Ibid., at p. 452
47
14(1994) BLD (HCD) 467
48
Supra note 24.
49
Ibid., at p.54
50
Id.
51
PLD 1969 (SC) 187; 21 DLR (SC) 123
52
as referred to in 40 (1988) DLR (HCD) 305
53
Civil Revision No. 273 of 1986; Moqbul Ahmed vs Sufia Khatun and others, 40 (1988)

DLR (HCD) 305; Judgment delivered on January 11, 1988

54
Ibid., at p. 307
55
Id.
56
Decisions reported in AIR 1968 (SC) 697; in AIR 1974 (SC)1682; in AIR 1963 (SC)

3007; in AIR 1972 (SC) 1548; in 23 DLR (SC) 81 as referred to in 40 (1988) DLR (HCD)

305
57
Supra note 35
58
Supra note 36
59
Supra note 38
60
47 (1995) DLR (HCD) 331; judgment delivered on 23 February 1994. However, it could

not be learnt whether the HC Bench was aware of the Appellate Division decision in In

Azad Alam Vs Jainab Khatun and others.

Page 43 of 46
61
Ibid., at p. 332
62
Id.
63
Id.
64
Supra note 53
65
Supra note 60; at p. 332
66
53(2001) DLR (HCD) 346
67
Ibid., at p. 349
68
Supra note 60
69
Supra note 35
70
Article 111 of the Constitution of Bangladesh which reads as:

Article 111. Binding effect of Supreme Court Judgment.

The law declared by the Appellate Division shall be binding on the High Court

Division and the law declared by either division of the Supreme Court shall be

binding on all courts subordinate to it.

71
Supra note 60
72
Supra note 52
73
Supra note 53
74
Act No. XXX of 1989
75
“17. Appeal - (1) Subject to the provisions of sub-section (2), an appeal shall lie from a

judgment, decree or order of a Family Court to the Court of District Judge.”

76
Supra note 60
77
Ibid., at p. 332
78
Ibid.. at p. 333
79
52 (2000) DLR (HCD) 453
80
52 (2000) DLR (HCD) 107
81
By section 9 ( ) of Act XXX of 1989 with effect from 20.06.1989. The original

subsection (3) reads as follows: “where a decree relates to the payment of money and the

Page 44 of 46
decretal amount is not paid within the time specified by the court, the same shall, if the

Court so directs, be recovered as public demand, and on recovery be paid to the decree

holder.”
82
As the BLAST report reveals at p. 12
83
Specially mentioned by a judge of Family Court of Jessore; also many more lawyers

from Chittagnong, Tangail, Rajshahi, Mymensing, Jessore and Rangpur District Bar, as

referred to in BLAST report at pp. 12-13

84
A good number of practicing lawyers and presiding judges in the different Family

Courts all over the country; as referred to in BLAST report at p. 12-13

85
In Maksuda Akhter Vs Serajul Islam 51 (1999) DLR (HCD) 554 the decree holder filed

application to the Executing Court for sending the judgment debtor to suffer imprisonment

for three months.

86
As some lawyers alleged that as many judgment–debtors prefer to suffer this civil three

months imprisonment than to pay decreed money.

87
A number of lawyers practicing in the Family Courts of Dhaka District
88
Baillie Vol 1, at p. 91
89
Shah Azmallah vs Imtiaz Begum, 11 DLR (WP) 74
90
Safura Khatun vs Osman Gani, 9 DLR 455
91
(73) AIR Gau, 56; as referred to in Handbook on Muslim Family Laws, sixth ed., 2005,

DLR, at p. 20.
92
Md. Ali Hossain & Others Vs The State, 5 (2000) MLR (HCD) 301, at p. 308
93
The proposition is founded on the decision of the High Court Division in Md. Ali

Hossain & Others Vs State, 5 (2000) MLR (HCD) 301. the Court held:

Fine imposed upon an accused in a criminal proceeding is of the nature of a

financial punishment as distinguished from physical punishment and it must be

paid by him under all normal circumstances. Only when the assets of the accused

cannot cover the amount the fine imposed upon him and there is no way out for

realization of the fine the accused shall have to undergo imprisonment of either

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 description for a period fixed by the Court for default in payment of fine. There is

no option left to the accused to plead that he will undergo further imprisonment

for a fixed term in lieu of payment of the fine, fine being a compulsory payment.

94
Emphasis supplied.
95
51 (199) DLR (HCD) 554;
96
Ibid., at p. 556
97
Serajul Islam Vs Maksuda Akhter, 5 (2000) BLC (AD) 184
98
This study contains the latest information up to June 2007.
99
Supra note 24.

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