Function of Family Court in Bangladesh: Functions and Jurisdiction of the Family Court in Bangladesh
The primary goal of the Family Court is to facilitate the timely and successful resolution of family law issues. However, as with any other system, certain difficulties arise that cause concern about how these courts operate.
However, the Family Court Ordinance of 1985 established family courts with the goal of resolving some family disputes in a timely, effective, and peaceful manner. The goal is once again clear in providing a method for trial of cases in camera if necessary to ensure secrecy and confidentiality and to effectively dispose of some intricate and complicated matters that may not be practicable under the moral law of the land.
Section 5 of the Family Courts Ordinance 1985 speaks about the jurisdiction of the family courts, which reads as follows: “Subject to the provisions of the Muslim Family Laws Ordinance 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] Divorce and Dissolution of Marriage
[b] Restitution of conjugal rights.
[C] Dower
[d] Maintenance.
[e] Guardianship and custody of minors.
Family Courts Ordinance, 1985
The Family Court Ordinance of 1985 attempts to resolve legal conflicts including marriage breakup, reinstatement of conjugal relations, dower, maintenance, guardianship, and custody of children. This Ordinance was issued in 1985. The contents chosen for consideration in the Ordinance are based on Muslim law, Hindu law, the Civil Procedure Code, the Evidence Act, the Dissolution of Muslim Marriage Act, and the Muslim Family Law Ordinance. According to this law, all munsif courts will be Family courts, with munsifs serving as Family court judges. Essentially, family courts have exclusive authority to hear, try, and decide cases involving marriage, conjugal relations, dower, maintenance, guardianship, and child custody.
Dissolution of Marriage (talak)
Sections 307 and 308 of Muslim law outline how marriages are dissolved. Under Muslim law, the marriage contract can be dissolved in one of three ways: (i) by the husband at his own will, without the intervention of the court; (ii) by mutual consent of the husband and wife, without the intervention of the court; or (iii) by a judicial decree at the husband’s or wife’s request. The wife cannot divorce herself from her husband without his approval unless this privilege is granted to her in the Nikahnama. This style of talak is called as talak-e-toufiz. When a divorce is finalized by mutual consent, it is known as khula or mubara’at, depending on the terms of the contract between the parties.
Talak refers to the husband’s unilateral dissolution of the marriage contract without the intervention of the court. Talak can be spoken or written. To talak verbally, a sound-minded husband pronounces a few phrases that are spoken or well understood as signifying divorce, and then acts accordingly. Talak in writing, or talaknama, is a written record of spoken talak. The deed may be completed in the presence of the kazi, the wife’s father, or other witnesses. However, the deed must be in usual form, correctly superscripted, and addressed to reveal the identity of the writer and the person addressed. In Muslim law, the wife has a limited right to divorce her husband judicially. A wife can dissolve the contract of marriage with the intervention of the court on the grounds: (i) the husband’s whereabouts are unknown for a period of four years; (ii) the husband’s failure to provide for the wife’s maintenance for a period of two years; (iii) a sentence of imprisonment on husband for a period of seven years or more; (iv) failure without reasonable cause to perform marital obligations; (v) impotence of husband; (vi) insanity of husband or his This divorce is known as talak-e-taufiz.
Restitution of conjugal relations
If the wife ceases to cohabit with her husband without valid cause, the husband has the right to seek for restitution of conjugal life. This suit is only valid against a legally married wife. However, if the marriage contract is dissolved, the husband is unable to file such an action.
Dower (Mahr)
It is the amount of money or other property that the wife is entitled to receive from the husband in exchange for the marriage. Muslim law made it mandatory (farz) for all Muslim husbands to settle the amount of dower in marriage and record it in the marriage contract, also known as Kabinnama or Nikahnama. The amount of dower is determined based on the bride’s social rank, personal characteristics, and beauty. The husband may settle any sum he wishes as dower on his wife, but it must not be less than ten dirham or its equivalent. Husband is obligated to pay the full amount of dower settlement, even if it exceeds his means. It is the husband’s debt to his wife, and unless otherwise mentioned in the marriage contract, he must pay the full sum on demand. Realization of dower is a wife’s right, and even a widow can maintain her husband’s properties in possession while filing a claim for her dower until the full sum is paid.
Maintenance
Maintenance (nafafa) is the monetary support that a wife, children, parents, and grandchildren can legally demand from their husband, parents, son, and grandfather to support their livelihoods. It covers food, clothes, shelter, and medical care for adults, as well as other expenses for mental and physical well-being based on their social position. The grounds for imposing the obligation on a person are, in order of gravity, marriage, kinship, and inheritance. A parent is required to support his boys until they reach puberty, and his daughters until they marry.
Fathers must also provide for their widowed or divorced daughters. If the father is destitute and incapable of supporting himself, the mother will take on the duty. If the father is impoverished and infirm, and the mother is likewise poor, the grandfather is responsible for the children, assuming he is in good financial standing. Wife is the first and primary claimant of maintenance, and she has every right to realize the claim even if she is financially better off than her husband or if the husband has the resources to fulfill the claim. After divorce, the wife is entitled to maintenance for up to the iddat period, which can be extended to three months. Other religions also include measures for maintenance. An able man should support grandparents and other relatives in addition to his wife, children, and parents, subject to his abilities.
Guardianship or custody of children.
In all circumstances, the father has natural guardianship over his minor child’s person and property. In the absence of the father, the responsibility shifts to the mother, and if the mother is absent or unable to care for the minor, the grandpa or the parents’ closest relative becomes guardian of the minor’s person and property. In difficult circumstances, the government may even act as the minor’s guardian of person and property. Prior to the Family Court Ordinance 1985, district judges were designated guardians of a minor’s person and property, a role that is currently held by the concerned Assistant Judge of the Family Court. All applications for the appointment of a guardian of a minor’s person or property, or both, must be made under the Guardians and Wards Act of 1890. However, a prospective guardian may begin operating as a guardian of the minor under Muslim law before receiving a court verdict.
Court proceeding
When the defended files a written statement in court following the filing of the plaint, the court will set a date for the pre-trial hearing within 30 days. On such date, the Court will endeavor to reach a settlement or reconciliation between the parties, if practicable. When compromise or reconciliation fails, the court will hear evidence from both parties and make a decision.
Family courts manage issues that arise as a result of the aforementioned situations. A person may elect to present a complaint to a Family Court. The judge may issue a judgment and decree against which an appeal petition may be filed with the district judge’s court, provided that the judgment does not relate to (a) article 2(8) of the Dissolution of Muslim Marriage Act, 1939 or (b) for dower not exceeding five thousand taka.
An appeal against a Family Court decision, decree, or order must be filed within thirty days of its issuance, minus the time required to collect true copies. The High Court Division may, on the application of any party or on its own initiative, transfer any litigation under this Ordinance from the Family Court to another court within its local jurisdiction. In cases of guardianship and custody of children, a Family Court is recognized to be a District Court.
