A Comparative Study of Family Court Ordinance 1985 and

jhj Paribarik Adalat Ain 2023

Introduction

"The court that hears matters relating to members of a family.”

Establishment of Family Courts was on the one hand an expression of our sophisticated legal
thought, on the other hand, an acknowledgement that our traditional civil courts had failed to
successfully deal with the suits relating to family affairs. Family Courts were established by the
Family Courts Ordinance, 1985' to serve the purpose of quick, effective and amicable disposal of
some of the family matters. This purpose, though not perceptible from the preamble of the
Ordinance, is evident in different places of the body of the Ordinance. The anxiety of the framers
of the Ordinance for the said speedy disposal of the family cases is palpable in fixing only thirty
days for the appearance of the defendant, in providing that if, after service of summons, neither
party appears when the suit is called on for hearing the court may dismiss the suit. Case
complexity, lack of judges, and delay in the issuance of summons notifications are all working
against it.By slightly altering the military regime's ordinance, the Cabinet of Ministers recently
adopted the draft of the Paribarik Adalat Ain, 2023.Cabinet Secretary Khandaker Anwarul Islam
mention in a press briefing, "The draft law present in place of the Family Court Ordinance, 1985
under the direction of the High Court." The new law provides a wider forum for appeal,
requiring that all judges should be district judge. Who disposes of the appeal arising out of
family courts. The Act will apply to the whole of Bangladesh except Rangamati, Hill Bandarban
and Hill Khagrachari districts. Fifty years after the independence of the country, family courts
did not exist in the three hill districts. As a result, the cases went to the joint district judge's court
following the civil procedure. Section 9 of the proposed draft law provides for amendment of
written statement at any stage of the case. The family court also has magisterial powers. The
family court can also issue any interim order during the case.
 Historical Historical Background:

The enactment of the Family Court Ordinance 1985 marked a significant milestone in
the evolution of family law in Bangladesh. Prior to its introduction, family matters were
primarily adjudicated under various provisions of the Code of Civil Procedure, 1908, and the
Muslim Family Laws Ordinance, 1961, among others. However, the absence of specialized
family courts often led to delays, inefficiencies, and inadequate redressal of family disputes.The
Family Court Ordinance 1985 was promulgated with the objective of providing a dedicated
judicial forum for the expeditious resolution of family matters, encompassing issues such as
marriage, divorce, maintenance, guardianship, and custody of children. By establishing family
courts at the district level, the ordinance aimed to decentralize the adjudication of family
disputes, enhance access to justice, and ensure the protection of family members' rights and
interests.
In contrast, the Paribarik Adalat Ain 2023 represents a more recent legislative development in
Bangladesh's family law landscape. Enacted to complement the existing legal framework and
address contemporary challenges in family justice administration, the Paribarik Adalat Ain 2023
introduces provisions for the establishment and operation of family courts at the upazila level.
This expansion of the judiciary's reach aims to further decentralize family dispute resolution,
facilitate easier access to justice for rural populations, and alleviate the burden on district-level
family courts. The Paribarik Adalat Ain 2023 also incorporates provisions for alternative dispute
resolution mechanisms, including mediation, conciliation, and arbitration, reflecting a growing
recognition of the efficacy of non-adversarial approaches in resolving family conflicts.
Additionally, the law introduces measures to strengthen the protection of women's and children's
rights within the family context, aligning with broader efforts to promote gender equality and
child welfare in Bangladesh.

Objectives and Scope

The Family Court Ordinance 1985 and the Paribarik Adalat Ain 2023 are designed with specific
objectives aimed at addressing family disputes and ensuring the welfare of family members.
 Family Court Ordinance 1985:

1. Objective:

- The primary objective of the Family Court Ordinance 1985 is to establish specialized family
courts for the expeditious resolution of family disputes. These disputes include matters related to
marriage, divorce, maintenance, guardianship, and custody of children.

2. Scope: l;ll

- The ordinance covers a wide range of family matters, providing a comprehensive legal
framework for addressing issues affecting familial relationships and obligations.

– The jurisdiction of family courts established under this ordinance extends to specific
geographical areas, typically at the district level.

Paribarik Adalat Ain 2023:

1. Objective:

- The Paribarik Adalat Ain 2023 aims to complement the existing by establishing family courts
at the upazila level to further decentralize family dispute resolution.

- It seeks to enhance access to justice for rural populations and reduce the workload of district-
level family courts by providing localized judicial forums.

2. Scope:

- The Paribarik Adalat Ain 2023 expands the scope of family dispute resolution by introducing
family courts at the upazila level, thereby extending the reach of the judiciary into rural areas.

- In addition to adjudicating family disputes, the law emphasizes the importance of alternative
dispute resolution mechanisms, such as inheritance, repression of women, domestic violation etc.

- The law also incorporates provisions to strengthen the protection of women's and children's
rights within the family context, reflecting a commitment to gender equality and child welfare.
 Comparative Analysis of Family Courts Ordinance, 1985 and
Paribarik Adalat Ain, 2023:

Ordinance : According to,The Constitution of the People’s Republic of Bangladesh,at any

time when [Parliament stands dissolved or is not in session], if the President is satisfied that
circumstances exist which render immediate action necessary, he may make and promulgate
such Ordinances as the circumstances appear to him to require, and any Ordinance so made shall,
as from its promulgation have the like force of law as an Act of Parliament. Provided that no
Ordinance under this clause shall make any provision –

(i) which could not lawfully be made under this Constitution by Act of Parliament;
(ii) for altering or repealing any provision of this Constitution; or
(iii) continuing in force any provision of an Ordinance previously made

Ain : An “ain” is a formal proposal presented, debated, and approved by a legislative body.Ain
in english used as a ' act '. A “law” encompasses approved acts along with other legal rules and
regulations in a jurisdiction. Once an act is approved, it becomes a “law” and is enforceable.

Here the,Family Courts Ordinance 1985 is an ordinance, but Paribarik Adalat Ain, 2023,is an
Act.
Ordinances are laws that are enforced by the president of Bangladesh only when the Bangladesh
parliament is not in session. The president issued a regulation on the recommendation of the
union cabinet.Once a bill has been passed and approved by the president in both lower and upper
house, it becomes Act.

Procedural Mechanisms:

The procedural mechanisms outlined in the Family Court Ordinance 1985 and the Paribarik
Adalat Ain 2023 play a crucial role in facilitating the resolution of family disputes and ensuring
fair and efficient proceedings.

- Both the Family Court Ordinance 1985 and the Paribarik Adalat Ain 2023 aim to provide
accessible and effective mechanisms for resolving family disputes.
- While the Family Court Ordinance 1985 focuses on establishing specialized family courts at the
district level and emphasizes judicial adjudication, the Paribarik Adalat Ain 2023 seeks to
decentralize dispute resolution by establishing family courts at the upazila level and promotes the
use of alternative dispute resolution mechanisms such as mediation.

– The involvement of trained mediators and the emphasis on amicable resolutions in the
Paribarik Adalat Ain 2023 reflect a recognition of the importance of non-adversarial approaches
in addressing family conflicts .

- Understanding the procedural mechanisms of both legal frameworks is essential for parties
involved in family disputes, legal practitioners, and policymakers to navigate the legal system
effectively and promote fair and efficient resolution of family conflicts.

ADR:

Alternative Dispute Resolution (ADR) is a process of dispute settlement outside the formal
judicial system through mutual compromise and agreement by the parties themselves with the
third party facilitating the process. In true sense, ADR is the process of resolving dispute without
the intervention of the court.ADR was introduced in Bangladesh through the modes of informal
justice such as panchayat and local Salish. ADR was introduced in Bangladesh under Family
Court Ordinance (FCO), 1985. It is a separate special law for dealing family disputes in a
uniform manner irrespective of religions. The FCO, 1985 under Section 5 incorporates some key
issues of family disputes such as dissolution of marriage, restitution of conjugal rights, dower,
maintenance, and finally guardianship and custody of children.

ADR incorporated 10 laws in Bangladesh as formal and quasi-formal. The mediator shall be the
judge to whom the case should be filed. If the mediation process fails, parties can go to the court
for trial. But there are major loopholes in this law. Parties shall go to the same judge who was the
mediator during the mediation stage. A possibility is there that the judgment may be influenced
by pre-trial mediation. l
Family disputes are very sensitive in nature that need experienced judges. But section 4 of the
FCO states that Assistance Judges shall be family court judges, who are members of the
subordinate judiciary and hence lack sufficient experience in judiciary.In the family court
mediation, parties cannot go to experienced mediators for resolving their problems.
But,Paribarik Adalat Ain, 2023 removes this disputes, parties can go to the other court for their
trial and pre -trial stage.Concerned authorities should take immediate steps for amending this law
for fairly and effectively addressing family disputes by using ADR and opening the third party
system mediation for resolving problem by experienced mediators.

Increasing the court fees and enhancing the definition

h of family appellate court:

The parliament of Bangladesh has recently passed the Paribarik Adalat Ain 2023 by repealing
Family Courts Ordinance 1985 which had previously been regulating the procedures related to
the Family Courts of Bangladesh. G
Although, quite unfortunately, the parliament couldn’t live up to the public expectation, rather
failed to resolve pre-existing shortcomings, challenges and utter clumsiness of the Ordinance
1985 as apart from a few new provisions the Paribarik Adalat Ain 2023 is pretty similar to the
said flawed Ordinance.

There are two significant changes have been brought by Paribarik Adalat Ain 2023 related to
Bangladesh Family Courts’ procedures, such as increasing the court fee of family court cases and
enhancing the definition of family appellate court.

Section 25 of Paribarik Adalat Ain 2023 has increased the family court cases court fee to BDT
200 from BDT 25 and after the Paribarik Adalat Ain 2023 comes into force appeals against the
decree of Family Trial Courts can be brought to the Courts of District Judges including to any
courts of other judges equivalent to district judges, e.g., Woman and Children or Labor Courts,
which will help to reduce the burden of cases.

Other than that, the Paribarik Adalat Ain, 2023 has permitted to adduce witness evidence in the
court through affidavit without being present at the trial, which has been newly added to the
family courts procedures by Section 13(6).

Moreover, previously according to Section 17 (2) (b) of the Ordinance 1985, no appeal shall lie
from a decree passed by a Family Trial Court for a dower not exceeding BDT 5000. The
Paribarik Adalat Ain 2023 has repealed the said provision of the Ordinance 1985 and increased
the dower amount to not exceeding BDT 50000 in relation to appeal.
Restitution of marital rights, issues related to parents’ maintenance and post-divorce
maintenance, and absence of Alternative Dispute Regulation option in the appellate stage.

According to Section 5 of Paribarik Adalat Ain, 2023, the Family courts have the jurisdiction to
try and dispose of any suit related to matters, such as dissolution of marriage, restitution of
conjugal rights, dower, maintenance and guardianship and custody of children, which remains
the same as the Section 5 of the previous Ordinance 1985.

However, according to the High Court Division of Bangladesh Supreme Court, the family courts
can deal with any matter “relating to or arising out of” dissolution of marriage, restitution of
conjugal rights, dower, maintenance and guardianship and custody of children; Md Chand Miah
vs Rupnahar cited in 51 DLR 1999 (HCD) 292.

Therefore, the Family Courts have a wide jurisdiction over the family matter and the
interpretation of Section 5 of Paribarik Adalat Ain, 2023 should not be done in a rigid manner.
For example, the validity of the marriage can be dealt with by the Family Courts as decided by
the High Court in the above-mentioned case.

Protection of Rights and Welfare:

Ensuring the protection of rights and welfare, particularly of vulnerable groups within the family
context, is a key aspect of both the Family Court Ordinance 1985 and the Paribarik Adalat Ain
2023. Examining the provisions within these legal frame works sheds light on the measures in
place to safeguard the rights of family members and promote their well-being.

Family Court Ordinance 1985

1. Protection of Women's Rights:

- The ordinance contains provisions aimed at protecting the rights of women in various family
matters, including marriage, divorce, maintenance, and custody.

- Specific provisions may include guidelines for the determination of maintenance amounts and
procedures for the enforcement of maintenance orders.
2. Protection of Children's Rights:

- The ordinance prioritizes the welfare of children in matters of guardianship, custody, and
maintenance.
- Courts may consider the best interests of the child as the primary factor in making decisions
regarding custody arrangements and visitation rights.

3. Access to Legal Aid and Assistance:

- The ordinance may provide for the availability of legal aid services to ensure that parties,
particularly those from disadvantaged backgrounds, have access to legal representation and
assistance.
- Legal aid services may include providing information, advice, and representation to individuals
involved in family disputes who are unable to afford legal counsel.

Paribarik Adalat Ain 2023:

1. Enhanced Protection of Women and Children:

- The Paribarik Adalat Ain 2023 incorporates provisions aimed at strengthening the protection
of women's and children's rights within the family context.
- Measures may include stricter enforcement mechanisms for maintenance orders and enhanced
penalties for violations of women's and children's rights.

2. Promotion of Gender Equality:

- The law may emphasize the promotion of gender equality and the empowerment of women
within the family.
- Provisions may be included to address issues such as dowry-related violence, domestic abuse,
and discrimination against women in marital and familial relationships.

Comparison :

- Both the Family Court Ordinance 1985 and the Paribarik Adalat Ain 2023 prioritize the
protection of rights and welfare within the family context.
- While the Family Court Ordinance 1985 may focus on providing legal remedies and
adjudicating disputes through specialized family courts, the Paribarik Adalat Ain 2023 may
emphasize preventive measures, alternative dispute resolution mechanisms, and enhanced
protection for vulnerable groups.
- Understanding the provisions for the protection of rights and welfare within these legal
frameworks is essential for promoting equitable outcomes, fostering familial harmony, and
ensuring the well-being of all family members, particularly women and children, in Bangladeshi
society.

Case Studies and Practical Implications:

Analyzing real-life case studies and exploring the practical implications of the Family Court
Ordinance 1985 and the Paribarik Adalat Ain 2023 can provide valuable insights into their
effectiveness, challenges, and impact on individuals and families in Bangladesh.

Genuineness of the kabinnama was scrutinized by the family court in Shafiqul Huq v Mina
Begum 54 DLR (2002) 481 and in Abdul Hashem vs Mahmuda Khatun 64 DLR (2012) 494
Justice Emdadul Haque stated that Section 5 of the Ordinance 1985 impliedly empowers the
family courts to try and dispose of matter related to child legitimacy if it arises out of the matter
of guardianship and custody of children.

Moreover, the confusion related to who can come to the family court for restitution of marital
rights still remains unsettled even after the commencement of the Paribarik Adalat Ain, 2023
similar to the repealed Ordinance of 1985.

Previously, there was a well-settled judicial rule that only a husband can come to the family
court for restitution of conjugal rights.

But, in Nelly Zaman vs Giasuddin Khan, the court ruled that the husband suing for the forcible
restitution of conjugal rights against an unwilling wife is outmoded, untenable, and incompatible
if considered in relation with the constitutional principles of equality before law and under Art.
27 and equal protection of law under Art. 31 for both men and women.

Despite such a commendable decision from the judiciary, the parliament couldn’t clarify the said
dilemma through Paribarik Adalat Ain, 2023 which is disappointing.

Another potential failure of parliament in passing the new Paribarik Adalat Ain, 2023 is related
to keeping no window open for ADR in the appellate stage. The parliament has passed the new
Paribarik Adalat Ain, 2023 with the new provision i.e., Section 18 and 19 related to appeal cases
against family trial courts’ decision to reduce the pressure on the district judges, which is
commendable.

But, reducing the increased backlog of cases in the judiciary should’ve been addressed by the
parliament by inserting explicit provisions related to ADR even in the appellate stage through
Paribarik Adalat Ain, 2023.

Whereas the parliament has inserted Section 89(C) to the Code of Civil Procedure 1906 through
amending act i.e. The Code of Civil Procedure (Amendment) Act 2006 to incorporate ADR at
the appellate stage of civil cases to reduce the backlog of cases, but the parliament has not shown
any interest to add ADR mechanism to resolve family disputes.

Conclusion:

In conclusion, the comparative study underscores the importance of understanding the nuances
of the Family Court Ordinance 1985 and the Paribarik Adalat Ain 2023 for effectively
addressing the diverse needs of families and promoting equitable outcomes in Bangladeshi
society. By recognizing their respective strengths and limitations and exploring opportunities for
improvement, stakeholders can contribute to the continued evolution and effectiveness of family
law in Bangladesh, ensuring access to justice and protection of family rights for all members of
society