FAMILY COURTS ORDINANCE, 1985, SECTION 5

Section 5—A person professing any faith has got every right to bring suit for the purpose as contained in this section—a Hindu wife is not debarred from bringing a law suit for her maintenance against her husband under this
Ordinance. Nirmal Kanti Das vs Sreemati Biva Rani 47 DLR 514.

Section 5—After the coming into force of the Family Courts Ordinance the Criminal Court’s jurisdiction has been ousted in respect of awarding maintenance except in case of pending proceedings. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47.

Section 5—Under the Family Courts Ordinance not only the wife is permitted to file a suit in the Family Court for her maintenance—she can also claim maintenance of her child in the same suit. It was not necessary for the child to file a suit for maintenance himself or to become a co-plaintiff with his mother in suit. Saleha Begum vs Kamal
Hossain 50 DLR 180.

Section 5—If any agreement or assurance is reached between the parties that cannot debar the court from deciding as to where the “welfare” and the “benefit” of the minors lie. Such assurance or agreement cannot have any bearing on the welfare of the minors which is to be determined by the court. Nargis Sultana vs Aminul Bor Chowdhury 50 DLR 532.

Section 5—Even if the children prefer to live with their mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children. Bazlur Rahman Sikder vs Taher Begum Shamima 50 DLR 612.

Section 5—In view of the advance by way of ijtihad made in the right directions within the bounds of sunni Law, the enunciation on past maintenance made in 1964 by the Lahore High Court being affirmed twice by the Pakistan Supreme Court in this respect should not be overlooked or discarded. The High Court Division was therefore wrong in denying past maintenance to the appellant on the ground of lack of prior agreement. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.

Section 5—Section 3 of the Ordinance of 1985 only means that if there are provisions in the Ordinance which are different from or are in conflict with the provisions of any other law then the provisions of the said Ordinance will prevail. Section 3 does not debar the application of Limitation Act to suit filed under the Ordinance of 1985. The fact that the Ordinance of 1985 speaks of “Suit”, “plaint”, “Written statement”, “decree” etc. clearly attracts the Limitation Act under section 29(2) thereof. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.

Section 5—Residuary Article 102 of the First Schedule, providing for a period of limitation of 6 years from the time when the right to sue accrues in respect of a suit for which no period of limitation is provided elsewhere in the First Schedule will be applicable to a suit for maintenance under Ordinance of 1985. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.

Section 5—Under section 5 of the Ordinance of 1985 it is not only the wife who can file a suit in a Family Court for her own maintenance but also for the maintenance of her child. It is not correct to say that all the six subjects mentioned in section 5 relate to suits 98 to file a suit in the Family Court for her maintenance—she can also claim maintenance of her child in the same suit. It was not necessary for the child to file a suit for maintenance himself or to become a co-plaintiff with his mother in suit. Saleha Begum vs Kamal Hossain 50
DLR 180.

—If
any agreement or assurance is reached between the parties that cannot debar the court from deciding as to where the “welfare” and the “benefit” of the minors lie. Such assurance or agreement cannot have any bearing on the welfare of the minors which is to be determined by the court. Nargis Sultana vs Aminul Bor Chowdhury 50 DLR 532.

—Even
if the children prefer to live with their mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children. Bazlur Rahman Sikder vs Taher Begum Shamima 50 DLR 612.

—In
view of the advance by way of ijtihad made in the right directions within the bounds of sunni Law, the enunciation on past maintenance made in 1964 by the Lahore High Court being affirmed twice by the Pakistan Supreme Court in this respect should not be overlooked or discarded. The High Court Division was therefore wrong in denying past maintenance to the appellant on the ground of lack of prior agreement. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.

—Section
3 of the Ordinance of 1985 only means that if there are provisions in the Ordinance which are different from or are in conflict with the provisions of any other law then the provisions of the said Ordinance will prevail. Section 3 does not debar the application of Limitation Act to suit filed under the Ordinance of 1985. The fact that the Ordinance of 1985 speaks of “Suit”, “plaint”, “Written statement”, “decree” etc. clearly attracts the Limitation Act under section 29(2)
thereof. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.

—Residuary
Article 102 of the First Schedule, providing for a period of limitation of 6 years from the time when the right to sue accrues in respect of a suit for which no period of limitation is provided elsewhere in the First Schedule will be applicable to a suit for maintenance under Ordinance of 1985. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.

 —Under
section 5 of the Ordinance of 1985 it is not only the wife who can file a suit in a Family Court for her own maintenance but also for the maintenance of her child. It is not correct to say that all the six subjects mentioned in section 5 relate to suits exclusively between husband and wife. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.

—
Children in easy circumstances under Mohammadan Law are bound to maintain their poor parents, although the latter may be able to earn something for themselves. These poor parents may also file a suit in Family Court for maintenance from their opulent children. Similarly, poor or disabled relatives, even servants of the wife can maintain a suit for maintenance under the Ordinance of 1985 under circumstances enjoined by Mohamma­dan Law. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.

 & 23— Section 23 of the
Family Courts Ordinance if read with section 5 will make it clear that the provisions of Muslim Family Laws Ordinance shall have to be followed in case of decree passed by the Family Court for the dissolution of a marriage as
enumerated in section 5(a) of the Ordinance if it relates to Muslims only. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47.

5 & 23— Provisions of this Ordinance are applicable not only to the Muslim community but also to other communities constituting the populace of Bangladesh. Meher Negar vs Mojibur Rahman 47 DLR 18.

Sections 5 & 23— Provision of the Family Courts Ordinance 1985 have not taken away the power of a Magistrate to order for maintenance under section 488 CrPC. The Sessions Judge committed error of law in setting aside the order of maintenance passed by the Magistrate.

It can safely be presumed that our law makers while promulgating Ordinance No.XVIII of 1985 had in view the provisions of the Family Court Act of Pakistan and in spite of that the word ‘suit’ was specifically and unambiguously used in section 5 instead of the word ‘matters’ which has been used in the Pakistan law. The tern ‘matters’ has wider meaning than the term ‘suit’ and the former term definitely includes civil suits as well as criminal or quasi-criminal proceedings. And in spite of that, section 20 as quoted above appearing in the Pakistan law made specific provision for vesting the judges of the family Courts which the power under section 488 CrPC. Meher Negar vs Mojibur Rahman 47 DLR 18.

(2)— A Family Court like any other Courts has got inherent jurisdiction to decide whether it has got jurisdiction to entertain a suit. Krishnapada Talukdar vs Geetashree Talukdar 47 DLR 591.

Call
it the executing Court or the trial Court, it is nonetheless the Family Court which passed the decree and its power to allow installments even after passing of the decree is undoubted. Resima Sultana vs Khaez Ahmed
Mojumder 49 DLR (AD) 57.

Section 17— The appeal before the court of the District Judge against an interlocutory order passed by the Family Court was not maintainable. Younus Mia (Md) vs. Abida Sultana Chhanda 47 DLR 331.

Section 20— When section 20 of the Ordinance says that provisions of the Code “shall not apply to proceedings before the Family Courts” it means that those provisions of the Code shall not apply which are in the Ordinance as prescribed modes for conducting judicial business by the Family Courts. Younus Mia (Md) vs Abida Sultana
Chhanda 47 DLR 331.

Section 20(1)— Court can take into account subsequent event necessitating  amendment by addition of new relief that may be allowed to do complete justice. Nazrul Islam Majumder (Md) vs Tahamina Akhtar and another 47 DLR 235.

Sections 23 & 5— Section 23 of the Family Courts Ordinance if read with section 5 will make it clear that the provisions of Muslim Family Laws Ordinance shall have to be followed in case of decree passed by the Family
Court for the dissolution of a marriage as enumerated in section 5(a) of the Ordinance if it relates to Muslims only. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47.

Sections 23 & 5— Provisions of this Ordinance are applicable not only to the Muslim community but also to other communities constituting the populace of Bangladesh. Meher Negar vs Mojibur Rahman 47 DLR 18.

Sections 23 & 5— Provision of the Family Courts Ordinance 1985 have not taken away the power of a Magistrate to order for maintenance under section 488 CrPC. The Sessions Judge committed error of law in setting aside the order of maintenance passed by the Magistrate.

It can safely be presumed that our law makers while promulgating Ordinance No.XVIII of 1985 had in view the provisions of the Family Court Act of Pakistan and in spite of that the word ‘suit’ was specifically and unambiguously used in section 5 instead of the word ‘matters’ which has been used in the Pakistan law. The term ‘matters’ has wider meaning than the term ‘suit’ and the former term definitely includes civil suits as well as criminal or quasi-criminal proceedings. And in spite of that, section 20 as quoted above appearing in the Pakistan law made specific provision for vesting the judges of the family Courts which the power under section 488 CrPC. Meher Negar vs Mojibur Rahman 47 DLR 18.

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