Authored By: Nadia Jahan Noor
University of Rajshahi
Abstract
In Bangladesh’s family justice, The Family Courts Act 2023 became a milestone legislative reform, replacing the Family Courts Ordinance of 1985. This article analyzes the jurisdiction and legal framework of the Act through comparative and field-based research with Rajshahi Sadar, Bangladesh as the focus area. It evaluates if the new act’s reforms are sufficient to overcome conventional obstacles to resolving family disputes, such as delay, inaccessibility, lack of ADR professionals, and gender insensitivity. Through statutory interpretation, academic literature, empirical information, observation of trials, and interviewing judges and litigants, the research targets legislative aim and practice loopholes. It concludes by making policy recommendations to correct the loopholes in the family court system so that greater access to justice may be provided to marginalized communities. This study contributes to the larger debate over judicial reform and family justice in Bangladesh.
Keywords: Family-Law, Bangladesh; Family Courts Act 2023; Legal-Reform; Access to Justice; Gender-Justice; Alternative Dispute Resolution (ADR).
Introduction
Bangladesh family law forms the core regulation of personal matters such as marriage, divorce, guardianship, maintenance, and custody of children. For efficient handling of these issues smoothly, the Family Courts Ordinance 1985 was created. But over time, with a bid to redress long-standing grievances of its antiquated provisions, procedural complexity, and unavailability to women and other weaker sections and growing demands for reforms, the Family Courts Act, 2023 has been enacted. The new act aimed at plugging the loopholes of the 1985 regime. Even with repeated legislative reforms, there are apprehensions regarding enforceability, clarity, and how it can manage systemic delays and corruption. This article, with special reference to Rajshahi Sadar, Bangladesh, critically explores whether the Family Courts Act, 2023 is able to surmount the deficiencies of its forerunner or is able to achieve its goals in real practice. This article explores if the act remains a mere promise or a sincere enforceable innovation for the people of Bangladesh.
Methodology of the Article
This paper moves away from a doctrinaire and empirical approach to understanding the efficacy of the Family Courts Act, 2023, in the context of Rajshahi Sadar. It is qualitative and analytical in nature, that focuses on practical application rather than textual interpretation.
Primary data were collected through interviews, observation, and informal talks with judges, lawyers, support staff, and litigants. After that, some secondary sources are the Family Courts Act 2023, the repealed 1985 Ordinance, relevant laws, and scholarly works.
The information was analyzed thematically to determine the trends and issues, while maintaining confidentiality and anonymity of all participants.
Family Court Act, 2023: Jurisdiction and Framework
Jurisdiction of the Family Court Act, 2023:
The Family Court Act, 2023 retains the core subject-matter jurisdiction of the Family Courts Ordinance, 1985. It introduces clearer definitions and expands the court’s authority in some areas to ensure better access to justice.
According to the Act, Family Courts have exclusive jurisdiction over the following matters:
These are primarily based on Muslim Personal Law, but the Act includes all religious communities, pending other specification by personal laws. High court precedents have facilitated issues stemming from such if related to the case. For example, issues regarding marriage validity or legitimacy of child.
Family Court is the only court which has original jurisdiction over family cases. But where there are issues of property, inheritance, and criminality also involved, civil courts or criminal courts retain jurisdiction along with it.
Framework of the Family Court Act, 2023:
The Family Court Act, 2023 gives a comprehensive legal framework to adjudicate disputes relating to family matters in a just, expeditious, and sensitive manner. It uses the 1985 Ordinance as its base but incorporates modern procedural mechanisms, ADR methods, and child- and women friendly practices. The framework of the Act can be explained under the following key components:
- Establishment of Family Courts
The Act empowers the government to establish one or more Family Courts in each district or metropolitan area. If there is more than one court in a district, the government shall define their territorial areas. Each court is to be presided over by a judge not below the rank of a Joint District Judge. Judges in family cases are expected to be sensitive and seek consensual solutions when possible.
- Jurisdiction of the Family Courts
The Act provides exclusive jurisdiction to Family Courts over five core matters: i. Restitution of conjugal rights
- Divorce/dissolution
iii. Dower
- Maintenance
- Guardianship and custody
Extends to matters relevant to the case, such as child legitimacy or marriage validity. But matters demanding civil court interference shall be handled by civil court.
Procedural Provisions
The Act adopts a simplified civil procedure, ensuring faster disposal of cases. Key stages include:
- Filing of plaint
- Summons and appearance
iii. Pre-trial hearing and possible mediation
- Formal trial (if mediation fails)
- Judgment and decree
The Evidence Act, 1872, remains inapplicable, but a few specific sections of Civil Procedure Code, 1908, are applicable in family court cases.
Alternative Dispute Resolution (ADR)
According to section 10 of the 1985 ordinance, 13 judges were required to make a beginning with settlement talks, which was upgraded to Family court Act, 2023, section 11 rendering the ADR process mandatory. Another major reform under the 2023 Act is the mandatory attempt at mediation before proceeding to trial. The settlement is persuaded by the court, and the same judge also acts as a mediator. The settlement, if achieved, takes the strength of a court decree. If that is unsuccessful, there is a post-trial mediation process. Sometimes ADR can happen three times as well, once initiated by Legal Aid.
Rights of Women and Children
The Act upholds the women’s rights in divorce, maintenance and dower claims. Child welfare and best interest are prioritized in custody and guardianship matters.
Sensitive treatment is practiced in situations involving children. The family court act addresses matter that affect women and children more in society. The orders of custody are mainly welfare based on the child and mother unless exceptional circumstances exist.
Appeals and Revisions
One significant change introduced by the Family Court Act 2023 is the introduction of family appellate courts. The earlier Family Court Ordinance of 1985 saw the process of appeals being either sluggish or constricted in scope. The 2023 Act streamlines this as the District Judge’s Court becomes the forum for the appeal against decrees issued by Family Courts. This effectively makes each District Judge the court of appeal for family matters in his jurisdiction. But under the new Act, the appeal process involves observing more formality of procedure, like paying extra court fees.
Execution of Decrees
Family Court decrees are enforceable in the same manner as civil decrees. The court may use attachment of property, arrest, or garnishment to ensure compliance, especially in maintenance cases.
Penal and Miscellaneous Provisions
Penalties for non-compliance, false claims, or contempt of court are included. Provisions also allow for legal aid, protection orders, and court discretion in unique family situations.
Reforms and Persistent Gaps
The Family Court Act, 2023 which replaced the old Family Courts Ordinance of 1985, was aimed at eliminating procedural delays, gender insensitivity, and limited access to justice. It introduced various progressive reforms which were intended to improve family dispute resolution in Bangladesh. The major reforms include the imposition of compulsory pre-trial mediation for the promotion of congenial settlement, demystification of jurisdiction in matters such as marriage, divorce, maintenance, dower, custody, and guardianship, and promotion of a child- and woman friendly approach and strengthening of the best interest of the child. The Act also simplifies procedures to expedite disposal of cases and facilitates access to justice for economically weaker litigants by strengthening legal aid mechanisms. Nevertheless, despite all these amendments, certain basic reforms remain pending. The Act fails to identify and codify the religious minorities’ personal laws, thus leaving non-Muslim communities without due legal redress. It does not also incorporate integration with domestic violence law, which fails to provide a uniform solution for abused victims within homes.
Further, the Act does not pay heed to the significance of mental health counseling and support and neglects digitization and e-court systems and has poor enforcement provisions for custody and maintenance orders.
Structural and administrative barriers, such as the lack of women judges, child-friendly courtrooms, and trained officials, continue to hamper accessibility. Additionally, the Act fails to provide protection against abuse of legal procedures coupled with more sensitive gender terminology recognizing diverse family realities. Overall, then, while the Family Court Act 2023 is a welcome development, its success remains compromised until such more diffuse structural and overall shifts are made so as to create an accessibly and equitably accessible family law regime.
A View of Current Reality
During field observations in Rajshahi Family Court, the situation of family litigation within the scheme of the Family Courts Act, 2023 came into sight. Most of the cases observed were dower recovery, post-divorce maintenance, child custody and child support claims following remarriage where women belonging to vulnerable groups approached the courts, illustrating the gendered nature of family disputes.
Referring to the improved rate of maintenance and custody proceedings by electronic media such as e-summons and notices on the net, Legal experts noted that the custom of proceedings on the basis of the Civil Procedure Code (CPC) continues to introduce delays. Lawyers and judges also referred to the necessity of digitalization and online filing. They insisted on the provision of childcare facilities and female-friendly protective measures for a better ADR proceeding. Judges are also faced with other procedural complexities, and inadequacy of resources that hinder the delivery of justice. A layman who is illiterate about the law, harassment at filing has become a routine feature.
The Act is mediation and expediency focused yet still suffering from traditional problems prejudicing the objective. Due to structural and procedural shortfalls such as failure of coordination in serving summons, lack of specialist opinion in cases involving children, and insufficient sensitization of litigants, cases exceed the intended duration.
Findings
- Under Progressive Legal Reform, there is lack of efficient enforcement due to lack of adequate institutional resources and lack of accountability.
- The Rajshahi Sadar Family Court lacks resources, manpower, finances, availability of courtroom facilities, and administrative support leading to procedural delays.
- Issuance and serving of summons are delayed, further coupled with inefficiency in interdepartmental coordination (especially with law enforcement and forensic departments), impacting case timeline drastically.
- Deliberate delays by a few lawyers and court officials for personal or financial gains erodes public trust in the court process.
- While sensitive cases are family issues particularly custody or guardianship, no professional in psychology exists for litigants, therefore limiting the court in offering a comprehending environment.
- The Act is not procedurally specific in regards such as case withdrawal, dismissal, handling guardianship claims etc., thus creating inconsistency and confusion.
- Misconception between litigants and improper training among supporting staff and officials result in miscommunication and procedural errors, even corruption.
Suggestions
1.Including clear guidelines for custody and guardianship orders.
2.Requiring submission of written statements to prevent delays and preserve case clarity. 3.Allowing online submission and video conferencing to reduce delays and increase accessibility. 4.Including DNA tests in custody disputes to increase clarity.
5.Introducing e-summons, stringent timelines, and delivery accountability. 6.Appointing psychologists in sensitive family cases.
7.Providing regular training for judges, lawyers, and employees for increased professionalism and legal literacy.
8.Installing monitoring board to make sure cases are completed within the law-enacted 6 months to 2-year deadline.
Conclusion
The Family Court Act 2023 is an important legislative development in the arena of Bangladesh’s family justice. But its true efficiency is diverted by prevailing weaknesses like non-availability of resources, procedural inefficiency, and non-involvement of experts in critical cases. Also, delay, juridical doubt, and low stakeholder awareness among them cut down the efficiency of the Act’s purpose of providing effective and punctual resolution of disputes. To realize its potentialities, the Act needs to be strengthened institutionally in the proper manner, process perfection, technological incorporation, and capacity-building exercises over the long run. Such loopholes must be sealed to provide accessible, efficient, and child-sensitive justice through the family courts. Therefore, although the Family Court Act, 2023 is a commendable step towards simplifying family justice in Bangladesh, it is still an unfulfilled promise and not a coercive transformation.
Bibliography
Books
Mahmudul Islam, Constitutional Law of Bangladesh (3rd edn, Mullick Brothers 2012) D F Mulla, Principles of Mohammedan Law (22nd edn, LexisNexis 2016) Md Faiz Uddin Ahmed, Family Law with Special Reference to Marriage and Divorce in Muslim Law (Anupam Publications 2017)
Journal Articles
‘Reforming Family Courts in Bangladesh: An Analysis of the 1985 Ordinance and Beyond’ (2015) 16 Bangladesh Journal of Law
Newspaper Articles
Abuzar Gifari, ‘An Analysis of the Family Courts Act 2023’ The Daily Star (Dhaka, 22 December 2023)
Reports
Bangladesh Legal Aid and Services Trust (BLAST), Judicial Training on Family Law and Mediation in Bangladesh (BLAST Report, 2021).
