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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh



Issue No: 6
February 10, 2007

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Star Law Analysis

Overriding jurisdiction of the Family Courts

Zahid Biswas

As to jurisdiction, section 5 of the Family Courts Ordinance 1985 clearly states that 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 five matters, namely (a) dissolution of marriage; (b) restitution of conjugal rights; (c) dower; (d) maintenance; (e) guardianship and custody of children. Once more, section 3 says that notwithstanding anything contained in any other law the provisions of this Ordinance shall apply to cases relating to the above mentioned matters. Subsequently, through case laws, the position regarding jurisdiction has been made the clearest. Nevertheless, a considerable section of lawyers, as a BLAST report reveals, still think 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 the same, one can bring a suit in a family court. In fact, such misconception is not an anomaly when earlier we got some diametrically opposite judicial views regarding this, and when the habit of vast reading is still absent in our lawyer society as a whole.

In the early 1990 in Abdul Khaleque V Selina Begum (42 (1990) DLR (HCD) 450) 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'.

But just after four years in 1994 in Meher Nigar Vs Md Mujibur Rahman (14(1994) BLD (HCD) 467) another Division Bench expressed a complete opposite view to the effect that the Criminal Courts as usual 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.

In the same way, in 1996, there came another judgment in Rezaul Karim vs Rashsida Begum 16 (1996) BLD (HCD) 11. The judgment held that ' [a] relief provided by an Act cannot be taken away by implication simply becasue similar relief has been provided in a subsequent Act without repealing the provision for relief in the previous Act. The power of the Magistrate to act under section 488 of CrPC has not been taken away by promulgation of the Family Courts Ordinance.'

Following such contradictory judgments, confusion emerged as a natural consequence. But such confusion did not continue too long as a Special High Court Bench comprising three judges dissolved the issue finally in Pochon Rikssi Das Vs Khuku Rani Dasi (50 (1998) DLR (AD) 47) in 1997.

To dissolve this issue the said 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 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.

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. Hence, 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 provides that all suits, appeal and 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).'

It can be noted here that the abovementioned view was also taken in Pakistani jurisdiction in Adnan Afzal vs Capt. Sher Afzal (PLD 1969 (SC) 187; 21 DLR (SC) 123). Eventually, the position is that for custody of children, dower and maintenance disputes one has to resort only to a Family Court under the Family Courts Ordinance, and not to any other courts.

The author is a law and governance researcher, currently working for Bangladesh Legal Aid and Services Trust. He can be reached at: [email protected]

 
 
 


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