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The Need For Family Courts in The Hill Districts
The Need For Family Courts in The Hill Districts
Mohammed Shahjahan
The CHT with approximately 10% of the country’s total land mass
forms an integral part of Bangladesh being a unitary Republic as
stipulated under Article 1 of the Constitution.
The Family Courts are the Courts established under Section 4 of the
Family Courts Ordinance, 1985 (hereinafter referred to as the
Ordinance). This Section of the Ordinance provides for as many
Family Courts as there are Courts of Assistant Judges in the country.
These Courts manned so by Assistant Judges deal with dissolution of
marriage, restitution of conjugal rights, dower, maintenance and
guardianship and custody of children exclusively; thereby ousting the
jurisdiction of all other types of Courts over the said subject-matters.
Though there had been confusion as to whether the Ordinance was
meant for only the Muslims or for all religious communities initially,
the confusion was set right in the Case of Pochon Rikssi Das Vs.
Khuku Rani Dasi and Others reported in 50 DLR (HCD) 47 and 17
BLD (HCD) 563 wherein it was held, inter alia, that the Ordinance
applies to all citizens irrespective of religion.
The current debate as regards the need for Family Courts in the CHT
can be traced back to the promulgation of the Family Courts
Ordinance, 1985 inasmuch as Section 1(2) of the Ordinance states that
it extends to the whole of Bangladesh except the districts of
Bandarban, Rangamati and Khagracahari. This exclusion might be
attributed to a number of raison d'etre such as inexistence of Courts of
Assistant Judges in the CHT at the relevant time, e.g., in 1985
together with ignorance about and indifference to the ground realities
of the CHT on the part of the policy-makers and law-makers
concerned.
As evident from media and study reports, public opinion with regard
to the need for Family Courts in the CHT is divided. While the
Bengalis in this region are overwhelmingly in favour of the
establishment of these Courts, a section of the tribal leaders and
intelligentsia are not. Those opposing the proposition hold, inter alia,
that the Family Courts are not necessary in the CHT as Karbaris,
Headmen and the Circle Chiefs are tasked with adjudicating upon the
family disputes in the CHT under the provisions of the Chittagong
Hill Tracts Regulation, 1900 (hereinafter referred to as the
Regulation). Apart from those holding these two diametrically
opposite views, there are also a number of tribal and Bengali people
advocating for a golden mean approach to the issue at hand. They
hold that both the formal and informal systems of adjudication of
family disputes in this region should co-exist, meaning thereby that
the traditional system involving Karbaris, Headmen and the Circle
Chiefs should be retained and at the same time, the Family Courts
under the Ordinance should come into being.
“In a recent case before the High Court Division of the Supreme
Court of Bangladesh, the Petitioners sought to extend the
application of the Family Courts Ordinance, 1985 to the CHT and
thereby establish Family Courts in the CHT. Such extension may
bring benefits by opening another avenue of redress, but it may also
lead to increased and lengthy litigation, which may not by itself
mean better remedies. Extension of the law may be problematic if it
were to apply to the indigenous people. At the moment, family law
matters of the hill peoples are tried by the traditional chiefs,
headmen and karbaris and the civil courts are barred from
exercising jurisdiction over matters tried by the traditional courts.
The low number of revisions and appeals from the traditional courts
suggests that indigenous people are reluctant to go outside their
community for such matters. Moreover, the judicial officers of a
Family Court may not be familiar with the personal laws of the
indigenous people concerned (most of which follow oral traditions).
Therefore, the whole question of whether, if so, to what extent,
Family Courts ought to have jurisdiction over the indigenous
population of the CHT requires informed debates before the matter
is decided upon. It is likely that several interested parties, including
the traditional chiefs and headmen and the CHT Regional Council,
might apply to be added as parties in the case to put forward their
views on the matter. Another important question here is the
prerogative of the CHT Regional Council and (to a lesser extent)
the hill district councils to be consulted on the question of whether
Family Courts Ordinance should be applied to the CHT, and if so,
whether this should be in its original or modified form.”
Boiling down to Triple Jeopardy for the Bengalis in the CHT for
no fault of their own?
In the midst of all these debates on Family Courts for the CHT, what
one looks forward to is an amicable solution based on the aforesaid
golden mean approach: Let the Family Courts be set up while
retaining the informal/traditional system comprising of Karbaris,
Headmen and the Circle Chiefs for adjudication of family disputes of
the ethnic groups, with both options for choice of forum open to them.
For that to happen, both the Ordinance and the Regulation are
required to be amended accordingly. Last but not the least, one hopes
that the parties concerned shall take necessary steps to have the Writ
Petition No. 2813 of 2009 on Family Courts for the CHT, now
pending before the hon’ble High Court Division of the Supreme Court
of Bangladesh, heard and disposed of soon.
E-mail: shahjahanmohammed38@gmail.com