An analysis of the Family Courts Act 2023
Recently, the parliament has repealed the Family Courts Ordinance 1985 and passed a new Act, namely the Family Courts Act 2023 (FCA). Unfortunately, no significant changes have been brought by the new Act, and the pre-existing problems and challenges remain unresolved.
There are two main explicit changes in the new Act. Firstly, the court fees have been made BDT 200 from BDT 25. And secondly, family appellate courts have been established consisting of one district judge in each court. Beyond these, most provisions of the Ordinance remain the same in the newly adopted FCA.
In terms of jurisdiction, the family court has jurisdiction over matters relating to divorce, restitution of conjugal rights, dower, maintenance, and guardianship and custody as per section 5 of the Act. However, issues arising from formation of marriage, inheritance, will, heba (gift), maintenance of parents, adoption, etc. cannot be brought before the court.
Additionally, it was unclear in the Ordinance who can come to the court for restitution of conjugal rights. Initially, it was a settled rule that only husbands could come to the court for restitution of conjugal rights. However, the case of Nelly Zaman v Giasuddin Ahmed (1991) pronounced that Article 27 (equality before law) and Article 31 (equal protection of law) of the Constitution of Bangladesh are incompatible with the stringent rule. But, even after such decisions, our judiciary did not show consensus on the matter. Therefore, it was expected that the confusion would be dispelled through the new Act— which has not happened.
Regarding maintenance, the issue of post-divorce maintenance was highly debatable as it was not clear in the Ordinance. It was reasonably expected that a clear provision would be made on this issue in the new Act. Again, the issue of maintenance of parents, which too is a family matter, is to be tried by the magistrate court as per the Parents' Maintenance Act 2013. The FCA could have inserted maintenance of parents within its jurisdictional provisions.
Lastly, it can be argued that there should have been a provision making room for Alternative Dispute Resolution (ADR) in the appellate stage as well. That is because ADR in the appellate stage has a great impact on reducing the backlog of cases as it diminishes the scope of execution suit, or further appeal or revision procedure. However, this expectation of the legal experts was also not met by the new Act.
To sum up, it is submitted that the Act failed to meet people's expectations regarding resolving the unattended issues emanating from the 1985 Ordinance. The Act should be amended as per the recommendations of the experts to get rid of the prevailing confusions and problems once and for all.
The writer is an LL.M. candidate at the University of Dhaka.