The cabinet okayed the draft Family Court Law 2022 on 3 July to implement a Supreme Court judgment that declared all martial law regulations and orders void during General Ershad’s regime. The present Family Court Ordinance (FCO), 1985 enacted at that time while the draft family court law aims to repeal the earlier. According to the press, the cabinet secretary confirmed that the proposed law contains nominal changes than the former. 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 which includes all judges having the status of district judge would be able to dispose of the appeal arising out of family courts now and enhancement of court fees from taka 50 to 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 multiplexity of suits. As the government has taken initiative to scrap the present law, hence this write-up is aiming to bring some significant issues into the light to re-evaluate before finalising the draft law in the parliament.
The family court is an important court considering its impact on society not only in our country but also globally. The main reason to create a separate specialised court for family matters should be to resolve it speedily with fewer expenses and formalities whereas both the present and proposed laws have clumsy provisions to delay the proceeding.
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 & 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 court 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 Parent Maintenance Act fixes first class magistrate court to resolve the matter there. Sometimes 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 in the same room then the litigants will get one stop service at least expense 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 too. In addition, the new law should have provisions to settle family disputes of indigenous people considering their own culture, tradition and values as well.
There is another problem as to the judge of the family court. The law appoints all the assistant judges as the judge of family court. Arguably assistant judges have less maturity and experience to handle with the family matters as it is the entry post of their career. Henceforth, the legislators may consider this point to make more experienced judges as 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 dispute as well which put extra work load and sometimes cause delay.
Further, judges of the family courts are not well trained to deal with issues affecting family matters. These disputes often involve very difficult circumstances, for example relationship breakdown or best interest of the child. The family court judges need intensive and special training as these cases affect peoples’ lives in a very close and sometimes devastating way. Our court proceedings are also not very women, transgender and children friendly. The whole process and administration should focus on gender-based equality while determining a family suit and the law itself should emphasis on gender sensitivity to avoid contentious words in pleadings and unnecessary character assassination of a party. Moreover, provision relating to the admission of digital evidence is not inserted in the proposed law.
Admission of digital evidence can speedier the justice process in family suits and helps the court to come to a conclusion smartly. Sometimes the parties and witnesses are too frightened or upset to be in the courtroom whereas an arrangement can be made to help them by using a video link.
This 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 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.
Recently we have seen conflict of laws and transboundary elements in child custody and the right to visitation in our apex court. The proposed law is purely silent about the transboundary nature of this problem. Additionally, neither the current law nor the draft law has any provision relating to the execution of foreign judgment which creates a vacuum for a party having foreign judgment in this regard. Also, Bangladesh is not yet a state party to the Hauge Convention on the Civil Aspects of International Child Abduction, 1980. Hence, this is high time for Bangladesh to become a state party to the Hauge Abduction Convention and make our family court law more effective by ratification of the said convention.
Again, the restitution of conjugal rights is a big topic for debate all over the world. In some view, this is ultra vires to the constitution and violation of personal liberty while other observes it perfect as marriage put some obligations on both husband and wife under all religions. The Bangladeshi apex court also promulgated divided decisions in this context. Few judgments declared it as violative and discriminatory while others treated it as a regular religious matter. However, the proposed Family Court law is totally silent in this regard and does not show any way of execution of this type of matter. Another loophole in the draft law is the absence of punishment for the institution of fake suit which is a common culture in many cases and fake suits take valuable time and effort of the court.
Additional major lacuna in the family court law is the lack of inherent power. Family court becomes unable to do justice by means of applying discretionary power depending on the sense of equity, justice and good conscience due to deficiency of inherent power not given in the law. One more drawback of the present law lies in the execution of the decree given by the court.
To recapitulate, it can be said that the existing FCO is utterly unsuccessful to achieve its aims which was enshrined 37 years back and regrettably the proposed law also does not show us any ray of hope. There are a lot of scopes to develop the family court law to make it truly effective for the litigants. Yet there is time to create a justice friendly family court in this country by doing necessary amendments to the new law.
