Family
Courts Ordinance, 1985
(XVIII OF
1985)
Section—3
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 law, for the time being in force.
Nirmal Kanti
Das Vs. Sreemati Biva Rani, 14 BLD (HCD)413
Section—5
Section 5 of
the Ordinance reads as follows:
Jurisdiction
of Family Courts-Subject to the provisions of the Muslim Family Laws Ordinance,
1961 (VIII 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.
From
the expression “other laws” used in Section 3 of the Ordinance, it appears that
the Family Courts 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 pur. poses mentioned in Section 5 of the Family Courts
Ordinance. A Hindu wife is therefore entitled to bring a suit for maintenance
against her husband under the Family Courts 0rdinance.
Nirmal Kanti
Das Vs. Sreemati Bira Ranig, 14 BLD (HCD) 413.
Section—5
The
Family Courts have jurisdiction to entertain, try and dispose of any suit
relating to the matters mentioned in clauses (a) to (e) of Section 5 of the
Family Courts Ordinance only between litigants who are Muslims by faith.
Krishna Pada
Talukder alias Kajal Vs. Geetasree Talukder alias Baby, 14 BLD (HCD) 415.
Ref:
Attorney General Vs. Prince Ernest, 1957 A.C. 436—Cited.
Section—5
Limitation
Act, 1908, Article—120
The
Limitation Act does not specifically provide for any particular period of
limitation for filing suits by a Muslim wife for arrears of maintenance. The
Appellate Division held that residuary Article 120 of the First Schedule,
providing for a period of limitation of 6 years from the time when the right to
sue accrued 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
by a Muslim wife under the Family Courts Ordinance 1985.
Jamila
Khatun Vs. Rustom Ali, 16 BLD (AD) 61.
Section—5
Welfare of
Child
Plaintiff’s
suit was decreed upto the Appellate Division observing that the plaintiff was
entitled to take the twin sons in her custody. It is on record that the
plaintiff and the defendant are highly educated persons and they are
responsible government officers. From the judgment of the Appellate Division it
appears that the defendant-petitioner has got married again and as such the
welfare of the twin sons will not be protected in the hands of the step-mother.
Amirul Bor
Chowdhury Vs. Nargis Sultana, 19 BLD (HCD) 213.
Ref:
AIR 1959 (Mysore) 150; 17 DLR (WP) 119; 38 DLR(AD)106—Cited.
Section—5
Custody of
minor children
The
Family Court has the jurisdiction to decide the question of custody of the
minor children after determining their welfare, irrespective of any agreement
or any assurance reached between the contending parties. The paramount
consideration before the Court in deciding the question of custody of the minor
children is the ‘welfare and benefit’ of the minors.
Nargis
Sultana Vs Md. Aminul Bor, 18 BLD (HCD) 343.
Ref:
D. F. Mulla’s “Principles of Mahomedam law”; 42 DLR (AD) 234; 46 DLR (AD) 46;
46DLR(AD)148; 46 DLR (HCD) 307; A.I.R. 1982(SC)121; (1893) Chancery, 143; (1946)
9 Sud Park U.S.R.R. 4; A.I.R. 1928(Calcutta)600; 38 DLR (AD) 106—Cited.
Section—5
Maintenance
for Child
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. If the father objects to the custody of the
children and wants to assert his own legal right, the proper course for the
father would be apply for their custody, but so long as the custody of the
children remains with the mother, he cannot on any plea refuse to pay
maintenance for the children.
Baziur
Rahman Sikder Vs Mrs. Tahera Begum, 18 BLD (HCD) 519.
Ref:
A.I.R.(29)1942 Madrass 705; PLD 1961 (W.P.)Lahore733—Cited.
Section—5
Jurisdiction
of the Family Court to award maintenance
Under
section 5 of the Family Courts Ordinance, 1985 not only the wife can file a
suit in a Family Court for her own maintenance but also she can claim
maintenance for her child. 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 suits in the
Family Court for their maintenance from their opulent children. Similarly, poor
or disabled relatives, even servants of the wife, can maintain a suit for
maintenance under the Ordinance under circumstances enjoined by Mohammadan Law.
Jamila
Khatun Vs. Rustom Ali, 16 BLD (AD) 61.
Ref:
Mulla’s Principles of Mohammadan Law (18th Edition); Abdul Futte Moulvie Vs. Zabunnessa
Khatun, (1881) I.L.R. 6 (Cal) 631; Mst. Ghulam Fatima Vs. Sheikh Muhammad
Bashir, PLD 1958 (WP) (Lahore) 596; Baillie’s Digest at page 443; Hamilton’s
Translation of the Hedaya, at page 142; Sardar Muhammad Vs. Most. Nasima Bibi
and others. I9DLR (WP) 50: PLD 1966 (La- bore) 703; Sirajul Islam Vs. Helana
Begum and others, 48 DLR (HCD) 48; Muhammad Nawaz Vs.Mst. Khurshid Begum, PLD
1972 (SC) 302, at PP. 304-305; Ghulam Nabi Vs. Muhammad Asghar, PLD 1991 (SC)
443; Mohammadan Law, Volume 11(5th Edition) at page 404 by Syed Ameer Ali,
Kozhikoti Khadir Palliveetil Muhamed Haji Vs. Moideen Veettil Kalimabi, 4
I.L.R. ((Madras) 21 1; Tamizul Huq Vs. Shamsul Huq, 43DLR (AD) 34; Adnan Afzal
Vs. Sher Afzal, PLD 1969(SC) 187; Hamilton’s translation of the Hedaya, Volume
1, page 146; Volume II of Syed Ameer Ali’s Muhammadan Law, 5th Edition, page
427—Cited.
Sections—5
and 24
The
Family Courts Ordinance, 1985 applies to all citizens of Bangladesh
irrespective of their religious faith. If Section 24 is read with section 5 of
the Ordinance it will be evident that not only the Muslims but also the members
of other communities professing other religion come within the ambit of the
Ordinance and they are entitled to avail themselves of the forum of the Family
Court for speedy settlement of disputes regarding maintenance, guardianship,
custody of the children etc. and the Family Court has the exclusive
jurisdiction to try these matters.
Pachan Rissi
Das Vs. Khuku Rani Dasi, 17 BLD (HCD) 563.
Section—5(b)
Restitution
of conjugal rights
Restitution
of conjugal rights is a reciprocal right of both the husband and wife. It is
thus neither discriminatory nor violative of any of the provisions of the
Constitution.
The
view taken by a Single Judge of the High Court Division in the case of Khodeja
Begum and ors. Vs. Md. Sadeq Sarker, reported in 1 8BLD3 1 that no amount of
oral evidence is sufficient to prove the marriage unless the marriage is
attendant with a duly executed kabinnama or that restitution of conjugal rights
is violative of social justice and repugnant to Article 27 of the Constitution
is not a correct proposition of law.
Md. Chan Mia
Vs. Rupnahar, 18 BLD (HCD) 329.
Section—5(b)
Restitution
of Conjugal Right Mohammedan Law
Section—281
Suit for
restitution of Conjugal rights
Section
5(b) of the Family Court Ordinance, 1985 and section 281 of the Mohammadan Law
provides that where a wife without lawful cause ceases to cohabit with her
husband, the husband may sue the wife for restitution of conjugal rights. The
language used in both the sections of law is one and the same. The view taken
by a Single Judge of the High Court Division that “the law of restitution of
conjugal rights is void” while exercising power under section 115 of the Code,
cannot be endorsed to strike down a piece of legislation practiced over a long
period. The legitimacy or otherwise of a valid piece of legislation can only be
decided in writ jurisdiction under Article 102 of the Constitution.
Hosna Jahan
(Munna) Vs. Md. Shajahan (Shaju) and ors, 18 BLD (HCD) 321.
Section—6(1)(a)(b)
Institution
of suit
Every
suit under the Ordinance shall be instituted by the presentation of a plaint to
the Family Court within the local limits of whose jurisdiction the cause of
action has wholly or partly arisen or the parties reside or last resided
together.
Provided
that in a suit for dissolution of marriage, dower or maintenance, the Court
within the local limits of whose jurisdiction the wife ordinarily resides,
shall also have jurisdiction to try such a suit.
Mossammat
Jesmin Akhter and others Vs A S M Moniruzzaman , 21 BLD (HCD) 160.
Section—6(4)(g)
Code of
Civil Procedure, 1908, Order VII Rule 7
Per A.T.M.
Afzal, CJ: The law requires that the relief must be specifically claimed
either simply or in the alternative. It is true that general or other relief
which the Court may think just may be granted although not specifically asked
for. But the essential conditions are that the averments in the plaint must
justify such relief and the defendant must get an opportunity to contest such
relief. In the name of granting general or other relief the court cannot and
would not mount any surprise on the defendant make liable for something which
does not arise out of the plaint and as such he had no occasion to answer the
same. This is merely an extension of the principle of natural justice.
The
defendant was admittedly absent at the hearing of the revision before the High
Court Division. The worst that could happen to him was that the Rule could have
been discharged for default or on merit and the appellate judgment and decree
would have been maintained in that case. But if the learned Judges entertained
some bright and innovative ideas about some verses of the Quran hitherto not
known for saddling the defendant with more liability than the plaintiff had
claimed and received, then was it not necessary and lot elementary that the
defendant ought to have been put on notice again? It was like enhancing the
sentence of an accused in exercise of revisional jurisdiction in a criminal case.
Could any tribunal do it without putting him on prior notice? This is exactly
what has been done by the High Court Division which to say the least, was
unfortunate.
Md. Hefzur
Rahman Vs. Shamsun Nahar Begum and another, 19 BLD (AD) 27.
Section—6(4)(g)
and 17
Code of
Civil Procedure, 1908, Section—115
Per Mustafa
Kamal, J:
Section 6(4)(g) of the Ordinance provides that the plaint shall contain inter
alia the relief which the plaintiff claims. An appeal lies under section 17 of
the Ordinance to the Court of District Judge. The High Court Division
interferes in revision under section 115 of the Code of Civil Procedure when
the lower appellate Court appears to have committed an error of law resulting
in an error in the decision occasioning failure of justice. In such a case the
High Court Division may make such order in the case as it thinks fit. The High
Court Division did not say in the impugned judgment that the lower appellate
Court committed any error of law on the point of maintenance. Giving the plaintiffs
a substantive relief beyond the frame of the suit is beyond the jurisdiction of
the revisional court and is a sad case of judicial excess defying all judicial
norms and trampling the judicial procedure.
Md. Hefzur
Rahman Vs. Shamsun Nahar Begum and another, 19 BLD (AD) 27.
Section—16(3)
In the
execution proceeding whether the subsequent execution against the judgment-
debtor is maintainable or not?
From
the materials on record it was found that on the own seeking of the petitioner
40 installments were granted but the petitioner did not pay a single
installment. The execution was started for one installment only in respect of
Tk. 13,000/- and odd whereas the total decree was for Tk. three lac and odd and
as such the entire decretal amount remained unpaid. As a matter of fact, the
execution was for one installment and there is no legal bar to proceeding with
the executing under section 16(3) of the Ordinance for the unpaid amount. The
entire amount having remained unpaid. there is no legal bar to proceeding with
the subsequent execution.
Md. Serajul
Islam Vs Maksuda Akhter (Navy) Advocate, 20 BLD (AD) 84.
Section—16(3B)
In
view of the provision of section 16(3B) of the Ordinance, a fresh and separate
cause of action will arise for failure to pay money of each and every
installment for the purpose of sending the judgment-debtor to imprisonment for
his failure to pay the money under each installment.
Maksuda
Aktar Vs Md Serajul Islam, 19 BLD (HCD) 466.
Ref:
1981 BCR 212; Karson Ranee Chawda, AIR 1958’99—Cited.
Section—16(5)
Enforcement
of decrees
Under
the general law the trial Court may allow payment of the installments even
after the passing of the decree under certain circumstances. Under sub-section
(5) of Section 16 of the Ordinance it is permissible for the Court to allow
installments even after the passing of the decree. The difference between the
general provisions and those provided in section 16(5) of the Ordinance is that
whereas under the former the power is hedged by certain conditions including
one of limitation. But under sub-section (5) of section 16 of the Ordinance
there is no such condition except that the power should be exercised by way of
proper judicial discretion. This power is wider under subsection (5) of section
16 of the Ordinance and it may be exercised either on the application of a
party or even suo motu so long as the decree remains unsatisfied. A Family
Court therefore has the power to allow installments as it deems fit even after
the passing of the decree.
Reshma
Sultana Vs Khaez Ahmed Mojumder, 17 BLD (AD) 72.
Ref:
A.I.R. 1921 (Patna) 340; A.I.R. 1932 Allahabad 273 (FB), A.I.R. 1943 Nagpur 340
(F.B); A.I.R. 1985 (Andhra Pradesh) 49;— Cited.
Section—20
Code of
Civil Procedure, 1908, Order XLI Rule 27
Section
20 of the Ordinance is a bar to the application of the Civil Procedure Code in
a Family Court proceeding with the exception of sections 10 and 11 under the
Family Courts Ordinance. The lower appellate Court cannot take evidence under
Order XLI Rule 27 of the Code as the provisions of appeal in the Family Courts
Ordinance do not provide for taking of evidence. Family Courts Ordinance being
a special law must be applied strictly. The appellate Court cannot also remand
the case to the trial Court as the Ordinance does not provide for any such
provision.
Saleha Begum
Vs Dilruba Begum, 21 BLD (HCD) 422.
Section—24
Guardians
and Wards Act, 1890, Sections—12 and 13
Since
the procedure under Order XLI Rule 27 is a bar under section 20 of the
Ordinance in a Family Court proceeding the only recourse left to the lower
appellate Court is to fall upon section 24 of the Ordinance to follow the
procedure laid down in Guardians Wards Act, while deciding the question of
guardianship and custody of a minor.
Saleha Begum
Vs Dilruba Be gum, 21 BLD (HCD) 422.
Ref:
Azad Alam Vs. Zinnat Khanam, 1 BLC(AD)24; Yusuf Ali Mamoonji Vs. Alibhoy, AIR
1925 Lahore 567 2 BLT31; 14 BLD 291—Cited.