In quest of justice friendly family courts
The cabinet approved the draft Family Court Law, 2022 on July 3 with the view to implementing a Supreme Court judgment that declared all martial law regulations and orders promulgated during General Ershad's regime as void. The present Family Court Ordinance (FCO), 1985 was enacted at that time and the draft family court law aims to repeal the earlier. According to the press, the cabinet secretary confirmed that the proposed law proposes nominal changes to the current law. There are only couple of mentionable amendments in the draft law; other than these, it is merely a conversion of previous texts from English to Bangla. The new law provides a bigger forum for appeal entailing that all judges having the status of district judge would be able to dispose of the appeal arising out of family courts now; and that court fees shall be increased from taka 50 to taka 200.
These minor changes exasperate rights activists and legal experts as they demand rigorous alteration of the current provisions of the FCO. The existing FCO clearly fails to ensure complete justice rather creates complexity and multiplicity of suits.
The draft law does not define family or family matters; it only determines the jurisdictions of the court in divorce, dower, maintenance, restitution of conjugal rights, and guardianship and custody. However, other family matters like validation of marriage, adoption, repression of women, domestic violence, maintenance of parents, legitimacy of children, property distribution, adultery etc. are neglected in our law. Family court is not like any other traditional judicial forum; rather it deals with personal, familial, matters relating to well-being of children and emotions of the parties. Thus, it must have some unique characteristics than regular courts. People should not go to different places for other family matters. In the context of Bangladesh, we have seen that the justice seekers are instituting multiple suits and cases in family matters in multiple courts i.e. one for divorce, dower and maintenance of wife and children in family court and another for dowry in criminal court. Again, the Parents Maintenance Act fixes the court of Magistrate of First Class to resolve the matter there. Often some are going to the Nari O Shishu Nirjatan Daman Tribunal who does not get justice in family court. Again, occasionally husband files a declaratory suit in the civil court to declare the Nikahnama non-binding upon him as it is allegedly obtained by coercion from him. If we could create a court having concurrent civil and criminal jurisdictions and power to try all the family matters, the litigants will be able to get one stop service from one single court quickly.
Earlier there was a debate about whether the FCO is only for Muslims while the Pochon Rikssi Das v Khuku Rani Dasi and others, 50 DLR (HCD) 47 (1998) clarified that all citizens can seek remedy in family court irrespective of their religious faith, so far it is applicable for them. However, it is not clearly stated in the new law too. This confusion can be removed by insertion of subject matters of other faiths like adoption, right to separate residence etc. In addition, the new law should have provisions to settle family disputes of indigenous people considering their own culture, tradition and values as well.
The draft law proposes for the continuation of current trend, i.e. appointing Assistant Judges as the judges of the family court. Assistant Judges are primarily the fresh law graduates and arguably they have less maturity and experience to handle family matters. Henceforth, the legislators may consider this point to make more experienced judges as the family court judges. In India, one must have seven years of experience to deal with family matters as a judge. Moreover, under the present system, usually family court does not have separate room and the same assistant judge try other civil matters and family disputes as well, and this puts extra work load on the processes and thereby causes delay. Considering the nuances of family disputes, the judges need intensive and special training in order to perform better delivery of justice.
This proposed law has provision of double Alternative Dispute Resolution (ADR) which requires additional training for the judges to make compromises among family members. Thus, the appointment of expert court officers like counsellors is urgent in all family courts to deal with psychological matters with more care and caution. The new law may also make ADR mandatory before initiating any family proceeding and in case of failure of ADR only, the party concerned can come to the court for further relief. As custody of the child is a major concern of the family court, therefore the court must have arrangements to hear the child exclusively in a fear-free environment. Moreover, the presence of the parties should be made mandatory at the pre-trial and post-trial hearings as family matters require amicable settlement between the parties which is impossible without the presence of the parties.
Despite these shortcomings, there is a lot of scope to develop the family court system to make it truly effective for the litigants. And, this is high time we created a justice friendly family court in this country by doing necessary amendments to the new proposed law.
The writer is an Assistant Professor, Dhaka International University.