Section 3–
The Family 'Appellate Court cannot exercise power in sending the suit back on remand to the Family Court for disposal and it can only decide the appeal keeping its authority within the four walls of the Ordinance itself. Atiqur Rahman (Md) vs Ainunnahar 52 DLR 453
Section—3
Section 3 of the Ordinance reads as follows:
Ordinance to override other Laws -The provision of this Ordinance shall have effect notwithstanding anything contained in any other law, for the time being in force. Nirmal Kanti Das Vs. Sreemati Biva Rani, 14 BLD (HCD)413
Sections 3, 5 & 4–
Family Courts Ordinance applies to all citizens irrespective of religion.
Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47.
Sections 3 & 5–
Plaintiffs suit for enhanced maintenance for her daughter under the Ordinance upon fresh cause of action is maintainable notwithstanding the earlier order of the Magistrate in exercise of jurisdiction under section 488 CrPC. Kowsar Chowdhury vs Latifa Sultana 54 DLR 175.
Section 3—The Family Appellate Court cannot exercise power in sending the suit back on remand to the Family Court for disposal and it can only decide the appeal keeping its authority within the four walls of the Ordinance itself. Atiqur Rahman vs Ainunnahar 52 DLR 453.
Sections 3 and 5—Plaintiffs suit for enhanced maintenance for her daughter under the Ordinance upon fresh cause of action is maintainable notwithstanding the earlier order of the Magistrate in exercise of jurisdiction under section 488 CrPC. Kowsar Chowdhury vs Latifa Sultana 54 DLR 175.
Sections 3, 5 & 27—Order for maintenance of wife and son—purpose of the Family Courts Ordinance is to provide for speedy disposal of family matters by the same forum. There will be anomaly and multiplicity of proceedings if, in spite of the establishment of Family Courts, the Magistrate continues to entertain cases for maintenance. Provisions made in the Family Courts Ordinance have ousted the jurisdiction of the Magistrates to entertain application for maintenance which is a Family Court matter. Md Abdul Khaleque vs Selina Begum, 42 DLR 450.
Sections 3, 5 & 4—Family Courts Ordinance applies to all citizens irrespective of religion. Pochon Rikssi Das vs Khuku Rani Dasi 50 DLR 47.
Section 4—The Family Courts Ordinance has not taken away any personal right of any litigant of any faith. It has just provided the forum for the enforcement of some of the rights as is evident from section 4 of the Ordinance. Pochon Rikssi Das vs Khuku Rani Dasi 50 DLR 47.
Section 4–
The Family Courts Ordinance has not taken away any personal right of any litigant of any faith. It has just provided the forum for the enforcement of some of the rights as is evident from section 4 of the Ordinance. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47.
Section 5
Married second time violating the cus- toms of Hindu religion. plaintiffs filed the Family Suit for maintenance accord- ing to the provisions of Family Courts Ordinance, 1985. Sree Jibon Sharma vs. Sreemoti Subasini Sharma (Mohammad Fazlul Karim J) (Civil) 7 ADC 618
Section 5–
A person professing any faith has got every right to bring suit for the purpose as contained in this section–a Hindu wife is not debarred from bringing a law suit for her maintenance against her husband under this Ordinance. Nirmal Kanti Das vs Sreemati Biva Rani 47 DLR 514.
Section-5 (D) The Muslim Family Laws Ordinance, 1961 Section-9, Read with The Code of Criminal Procedure, 1898 Section-488
Past maintenance — A wife can claim past maintenance for herself and for her children for only 6 years prior to the filing of the suit.
From a reading of the entire ordinance of 1985 it appears that the provisions thereof are intended to provide for the establishment of Family Courts and for matters connected therewith and are not intended to make provisions for modification or amendment of Mohammedan law or any other substantive law. The Ordinance is indeed procedural in nature. Jamila Khatoon Vs. Rastom Ali 4BLT(AD)97
Under section 5 of Ordinance of 1985 the wife can claim past maintenance for the child if she has been supporting the child in the same household without any contribution from the father. But if she does not claim separate maintenance for the child, the court will consider the overall needs, keeping in view the fact that she has been supporting a child in the same household. In either case, the claim is subject to Article 120 of the Limitation Act. Jamila Khatoon Vs. Rastom Ali 4BLT (AD)97
Section 5–
After the coming into force of the Family Courts Ordinance the Criminal Court's jurisdiction has been ousted in respect of awarding maintenance except in case of pending proceedings. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47.
Section 5
Admittedly appellant No.1 Abdul Jalil
of Civil Appeal Nos. 56, 57 and 58 of 1995 and appellant Mrs. Sharon Laily
Begum Jalil of Civil Appeal No. 1 59 of 1995 were man and wife and the latter
having been divorced by the former in the month of May, 1995 following a
breakdown of marital relations, the question of custody of their four minor
childern, namely, Mohammad Nurul Alam Jalil (born on 23.4.1985). Jasmin Akhter
Jalil (born on 8.9.1988).
It is now settled that the term
'welfare' must be read in the largest possible sense as meaning that every
circum- stance must be taken into consideration and the Court must do what
under the circumstances a wise parent acting for the true interests of the
child would do or ought to do. The moral and religious welfare of the child
must be considered as well as its physical well-being. Nor can ties of
affection be disregarded vide queen vs. Gyngall (1893) 2 QBD 232; Walter vs.
Walter 55 Call 730: Saraswathi Vs. Dhanakoti 48 Mad 299. Abdul Jalil and others
vs. Mrs. Sharon Laily Begum Jalil(A.T.M. Afzal CJ) (Civil) 4ADC 8
Section 5—A person professing any faith has got every right to bring suit for the purpose as contained in this section—a Hindu wife is not debarred from bringing a law suit for her maintenance against her husband under this Ordinance. Nirmal Kanti Das vs Sreemati Biva Rani 47 DLR 514.
Section 5—A person professing any faith has got every right to bring suit for the purpose as contained in this section—a Hindu wife is not debarred from bringing a law suit for her maintenance against her husband under this Ordinance. Nirmal Kanti Das vs Biva Rani 47 DLR 514.
Section 5—After the coming into force of the Family Courts Ordinance the Criminal Court’s jurisdiction has been ousted in respect of awarding maintenance except in case of pending proceedings. Pochon Rikssi Das vs Khuku Rani Dasi 50 DLR 47.
Section 5—Under the Family Courts Ordinance not only the wife is permitted to file a suit in the Family Court for her maintenance—she can also claim maintenance of her child in the same suit. It was not necessary for the child to file a suit for maintenance himself or to become a coplaintiff with his mother in suit. Saleha Begum vs Kamal Hossain 50 DLR 180.
Section 5—If any agreement or assurance is reached between the parties that cannot debar the Court from deciding as to where the “welfare” and the “benefit” of the minors lie. Such assurance or agreement cannot have any bearing on the welfare of the minors which is to be determined by the Court. Nargis Sultana vs Aminul Bor Chowdhury 50 DLR 532.
Section 5-Even if the children prefer to live with their mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children. Bazlur Rahman Sikder vs Taher Begum Shamima 50 DLR 612.
Section 5—ln view of the advance by way of ijtihad made in the right directions within the bounds of Sunni Law, the enunciation on past maintenance made in 1964 by the Lahore High Court being affirmed twice by the Pakistan Supreme Court in this respect should not be overlooked or discarded. The High Court Division was therefore wrong in denying past maintenance to the appellant on the ground of lack of prior agreement. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.
Section 5—Section 5 of the Ordinance of 1985 only means that if there are provisions in the Ordinance which are different from or are in conflict with the provisions of any other law then the provisions of the said Ordinance will prevail. Section 5 does not debar the application of Limitation Act to suit filed under the Ordinance of 1985. The fact that the Ordinance of 1985 speaks of “Suit”, “plaint”, “Written statement”, “decree” etc. clearly attracts the Limitation Act under section 29(2) thereof. Jamila Khatun vs Ruslom Ali 48 DLR (AD) 110.
Section 5—Residuary Article 102 of the First Schedule, providing for a period of limitation of 6 years from the time when the right to sue accrues in respect of a suit for which no period of limitation is provided elsewhere in the First Schedule will be applicable to a suit for maintenance under Ordinance of 1985. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.
Section 5—Under section 5 of the Ordinance of 1985 it is not only the wife who can file a suit in a Family Court for her own maintenance but also for the maintenance of her child. It is not correct to say that all the six subjects mentioned in section 5 relate to suits exclusively between husband and wife. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.
Section 5—Children in easy circumstances under Mohammadan Law are bound to maintain their poor parents, although the latter may be able to earn something for themselves. These poor parents may also file a suit in Family Court for maintenance from their opulent children. Similarly, poor or disabled relatives, even servants of the wife can maintain a suit for maintenance under the Ordinance of 1985 under circumstances enjoined by Mohammadan Law. Jam ha Khatun vs Rustom Ali 48 DLR (AD) 110.
Section 5—Family Court has got every jurisdiction to decide as to whether the ‘kabinnama’ in question is a genuine and valid document or not and whether any marriage between the petitioner and opposite party was ever solemnized or not before it decides to grant any decree for dower and/or maintenance. Shafiqul Huq vs Mina Begum 54 DLR 481.
Section 5—The child born during the subsistence of the marriage is a legitimate child and entitled to maintenance till his majority. Jashimuddin (Md) alias Md Jashimuddin vs Dali Begum 56 DLR 358.
Sections 5 & 23—Section 23 of the Family Courts Ordinance if read with section 5 will make it clear that the provisions of Muslim Family Laws Ordinance shall have to be followed in case of decree passed by the Family Court for the dissolution of a marriage as enumerated in sçction 5(a) of the Ordinance if it relates to Muslims only. Pochon Rikssi Das vs Khuku Rani Dasi 50 DLR 47.
Sections 5 & 23—Provisions of this Ordinance are applicable not only to the Muslim community but also to other communities constituting the populace of Bangladesh. Meher Negar vs Mojibur Rahman 47 DLR 18.
Section-5
(a) Family Courts have jurisdiction to entertaintiy and dispose of any suit relating to the matters in clauses (a) to (e) section 5 of the Family Courts Ordinance only between the litigants who are Muslims by the faith.
Krishnapada Talukder Vs Geetasree Alias Baby 2BLT (HCD)-208
(b) The preamble of a statute is not ordinarily on independent enactment able to confer any right or to restrict or widen the enacting part which is clear and unambiguous. Even the preamble is to be disregarded when there is conflict between section and preamble and in that case express provisions of the section are to be given full effect. Krishnapada Talukder Vs Geetasree Alias Baby 2BLT (HCD)-208
Section-5
Family Courts Ordinance applies to all citizens irrespective of religion — “Subject to” has not created any embargo in the jurisdiction of the Family Courts in respect of cases and suits filed by citizens professing religion other than Islam. But while deciding the cases of the subjects enumerated in section 5 it is clear that Family Courts will follow the personal laws of those subjects. Pachan Rishi Das Vs. Khulai Rani Dasi 5BLT (HCD)-174
Section-5
Whether the Family Court have jurisdiction to entertain the suit and to decide the question of validity of the marriage between the parties which was denied by the defendant
Family Court shall have exclusive jurisdiction to entertain, try and dispose of any suit relating or arising out of restitution of conjugal right, dower, maintenance etc. which would obviously include the determination of the validity of a marriage as that is related to an inter-connected with the question of determination of dower, maintenance etc. Any other interpretation will be simply preposterous. Md. Chan Mia Vs. Rupnahar 6BLT (HCD)-92
Section-5
A Subordinate Judge has got no jurisdiction to invoke any power under Section 151 of the Code in the proceedings of a title suit either to grant stay or injunction in respect of a family suit of a Family Court. Md. Shafiqul Haque Vs. Mina Begum 10BLT (HCD)185
Section-5
The appellate court below hold that the plaintiff got five bighas of land as dower and thereafter, the money which was given to the defendant No.1 by selling five bighas of land was money loan by the wife to the husband which cannot be treated as dower — the family court cannot adjudicate upon the dispute.
Held: The court of appeal below erred law in holding that the money given by the plaintiff by selling 5 bighas of land to the defendant No.1 was not dower and that the said money was loan. The court of appeal below in the premises, has committed error of law in holding that the said dispute cannot be adjudicated upon by the family court. I am of the view that the family Court has rightly directed the defendant No.1 to give 5 bighas of land as dower. Most. Rowshan Ara Begum Chowdhury Vs. Tahera Noor Jahan & Ors. 10 BLT(HCD)-307
The Family Court Ordinance, 1985
Section 5
The order passed by the Family Court directing plaintiff No.1 to make arrange- ment to take minor plaintiff No.2 to see her grandmother, has lost its factual and legal impact. It also appears from the judgment and order of the Appellate Court that plaintiff No.1 divorced the present petitioner and in the meantime, she has taken a second husband and is now living with her second husband. Since the grandmother of the minor plaintiff No.2 died, we do not see any reason to interfere in the matter, al- though we feel very sad that the grand- mother could not see her minor grand-daughter, plaintiff No.2 during her life time due to the consumption of time in the legal process already resorted to by the parties. However, the petitioner who is the father of the minor child, if so advised, may apply to the Family Court to see his daughter and if such ap- plication is filed the Family Court would consider the same keeping in mind that he, being the father, has every right to see his daughter. It is true that the instant suit has been filed by the plaintiffs for dower and maintenance, even then the Family Court will not be out of its juris- diction to allow the father to see his daughter. We like to further observe that since divorce has already taken place be- tween plaintiff No. 1-respondent and the defendant-petitioner, arrangement to see the minor plaintiff No.2 can be made at neutral place, either at the chamber or residence of any of the learned Advocate of the respective parties or at any other place at which the parties may agree. Suruzzaman vs. Mrs. Farida Yasmin (Md. Abdul Wahhab Miah J) (Civil) 10 ADC 346
Section-5 read with Specific Relief Act, 1877 [I of 1877]
Section-39
On 12.10.2000 opposite party No.1 instituted the family suit before the Family Court for dower and maintenance. The petitioner has already appeared and filed a written statement denying his marriage with her. He has got every opportunity to challenge the ‘Kabinnama’ and the solemnization of the marriage on the very same grounds on which he on 22.10.2000 filed Title suit No.296 of 2000 before a Subordinate Judge. Family Court has got every jurisdiction to decide as to whether the ‘Kabinnama’ in question is a genuine and valid document or not and whether any marriage between the petitioner and Opposite Party No.1 was ever solemnized or not before it decides to grant any decree for dower and /or maintenance. In such a suit for a decree for dower and/or maintenance, no declaration in respect of the ‘Kabinnama’ or cancellation of the ‘Kabinnama’ is at all necessary. Family Court therefore cannot be expected to wait for the final decision of a title suit on like issues as nobody can surely say when such title suit would find the end of the tunnel. Moreover, it would be acting to frustrate the very purpose of the Ordinance. Md. Shafiqul Haque Vs. Mina Begum 10 BLT (HCD)-185
Section 5–
Under the Family Courts Ordinance not only the wife is permitted to file a suit in the Family Court for her maintenance–she can also claim maintenance of her child in the same suit. It was not necessary for the child to file a suit for maintenance himself or to become a co-plaintiff with his mother in suit. Saleha Begum vs Kamal Hossain 50 DLR 180.
Section 5–
If any agreement or assurance is reached between the parties that cannot debar the court from deciding as to where the "welfare" and the "benefit" of the minors lie. Such assurance or agreement cannot have any bearing on the welfare of the minors which is to be determined by the court. Nargis Sultana vs Aminul Bor Chowdhury 50 DLR 532.
Section 5–
Even if the children prefer to live with their mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children. Bazlur Rahman Sikder vs Taher Begum Shamima 50 DLR 612.
Section 5–
In view of the advance by way of ijtihad made in the right directions within the bounds of sunni Law, the enunciation on past maintenance made in 1964 by the Lahore High Court being affirmed twice by the Pakistan Supreme Court in this respect should not be overlooked or discarded. The High Court Division was therefore wrong in denying past maintenance to the appellant on the ground of lack of prior agreement. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.
Section 5–
Section 3 of the Ordinance of 1985 only means that if there are provisions in the Ordinance which are different from or are in conflict with the provisions of any other law then the provisions of the said Ordinance will prevail. Section 3 does not debar the application of Limitation Act to suit filed under the Ordinance of 1985. The fact that the Ordinance of 1985 speaks of "Suit", "plaint", "Written statement", "decree", etc. clearly attracts the Limitation Act under section 29(2) thereof. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.
Section 5–
Residuary Article 102 of the First Schedule, providing for a period of limitation of 6 years from the time when the right to sue accrues in respect of a suit for which no period of limitation is provided elsewhere in the First Schedule will be applicable to a suit for maintenance under Ordinance of 1985. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.
Section 5–
Under section 5 of the Ordinance of 1985 it is not only the wife who can file a suit in a Family Court for her own maintenance but also for the maintenance of her child. It is not correct to say that all the six subjects mentioned in section 5 relate to suits exclusively between husband and wife. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.
Section 5–
Children in easy circumstances under Mohammadan Law are bound to maintain their poor parents, although the latter may be able to earn something for themselves. These poor parents may also file a suit in Family Court for maintenance from their opulent children. Similarly, poor or disabled relatives, even servants of the wife, can maintain a suit for maintenance under the Ordinance of 1985 under circumstances enjoined by Mohammadan Law. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.
Section 5–
Family Court has got every jurisdiction to decide as to whether the 'kabinnama' in question is a genuine and valid document or not and whether any marriage between the petitioner and opposite party was ever solemnised or not before it decides to grant any decree for dower and/or maintenance. Shafiqul Huq (Md) vs Mina Begum 54 DLR 481
Section 5–
The child born during the subsistence of the marriage is a legitimate child and entitled to maintenance till his majority. Jashimuddin (Md) alias Md Jashimuddin vs Dali Begum and another 56 DLR 358
Sections 3, 5 & 4—Family Courts Ordinance applies to all citizens irrespective of religion. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47.
Section 4—The Family Courts Ordinance has not taken away any personal right of any litigant of any faith. It has just provided the forum for the enforcement of some of the rights as is evident from section 4 of the Ordinance. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47.
Section 5—A person professing any faith has got every right to bring suit for the purpose as contained in this section—a Hindu wife is not debarred from bringing a law suit for her maintenance agnist her husband under this Ordinance. Nirmal Kanti Das vs Sreemati Biva Rani 47 DLR 514.
Section 5—A person professing any faith has got every right to bring suit for the purpose as contained in this section—a Hindu wife is not debarred from bringing a law suit for her maintenance against her husband under this Ordinance. Nirmal Kanti Das vs Sreemati Biva Rani 47 DLR 514.
Section 5—After the coming into force of the Family Courts Ordinance the Criminal Court's jurisdiction has been ousted in respect of awarding maintenance except in case of pending proceedings. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47.
Section 5—Under the Family Courts Ordinance not only the wife is permitted to file a suit in the Family Court for her maintenance—she can also claim maintenance of her child in the same suit. It was not necessary for the child to file a suit for maintenance himself or to become a co-plaintiff with his mother in suit. Saleha Begum vs Kamal Hossain 50 DLR 180.
Section 5—If any agreement or assurance is reached between the parties that cannot debar the court from deciding as to where the "welfare" and the "benefit" of the minors lie. Such assurance or agreement cannot have any bearing on the welfare of the minors which is to be determined by the court. Nargis Sultana vs Aminul Bor Chowdhury 50 DLR 532.
Section 5—Even if the children prefer to live with their mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children. Bazlur Rahman Sikder vs Taher Begum Shamima 50 DLR 612.
Section 5—In view of the advance by way of ijtihad made in the right directions within the bounds of sunni Law, the enunciation on past maintenance made in 1964 by the Lahore High Court being affirmed twice by the Pakistan Supreme Court in this respect should not be overlooked or discarded. The High Court Division was therefore wrong in denying past maintenance to the appellant on the ground of lack of prior agreement. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.
Section 5—Section 3 of the Ordinance of 1985 only means that if there are provisions in the Ordinance which are different from or are in conflict with the provisions of any other law then the provisions of the said Ordinance will prevail. Section 3 does not debar the application of Limitation Act to suit filed under the Ordinance of 1985. The fact that the Ordinance of 1985 speaks of "Suit", "plaint", "Written statement", "decree" etc. clearly attracts the Limitation Act under section 29(2) thereof. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.
Section 5—Residuary Article 102 of the First Schedule, providing for a period of limitation of 6 years from the time when the right to sue accrues in respect of a suit for which no period of limitation is provided elsewhere in the First Schedule will be applicable to a suit for maintenance under Ordinance of 1985. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.
Section 5—Under section 5 of the Ordinance of 1985 it is not only the wife who can file a suit in a Family Court for her own maintenance but also for the maintenance of her child. It is not correct to say that all the six subjects mentioned in section 5 relate to suits 98 to file a suit in the Family Court for her maintenance—she can also claim maintenance of her child in the same suit. It was not necessary for the child to file a suit for maintenance himself or to become a co-plaintiff with his mother in suit. Saleha Begum vs Kamal Hossain 50 DLR 180.
—If any agreement or assurance is reached between the parties that cannot debar the court from deciding as to where the "welfare" and the "benefit" of the minors lie. Such assurance or agreement cannot have any bearing on the welfare of the minors which is to be determined by the court. Nargis Sultana vs Aminul Bor Chowdhury 50 DLR 532.
—Even if the children prefer to live with their mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children. Bazlur Rahman Sikder vs Taher Begum Shamima 50 DLR 612.
—In view of the advance by way of ijtihad made in the right directions within the bounds of sunni Law, the enunciation on past maintenance made in 1964 by the Lahore High Court being affirmed twice by the Pakistan Supreme Court in this respect should not be overlooked or discarded. The High Court Division was therefore wrong in denying past maintenance to the appellant on the ground of lack of prior agreement. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.
—Residuary Article 102 of the First Schedule, providing for a period of limitation of 6 years from the time when the right to sue accrues in respect of a suit for which no period of limitation is provided elsewhere in the First Schedule will be applicable to a suit for maintenance under Ordinance of 1985. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.
—Under section 5 of the Ordinance of 1985 it is not only the wife who can file a suit in a Family Court for her own maintenance but also for the maintenance of her child. It is not correct to say that all the six subjects mentioned in section 5 relate to suits exclusively between husband and wife. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.
Section 5(d)–
Whatever be the meaning of Mataa it is certainly not maintenance as can be claimed within the meaning of maintenance under the Family Courts Ordinance. Hefzur Rahman (Md) vs Shamsun Nahar Begum and another 51 DLR (AD) 172.
Section 5(d)–
There is a clear direction in respect of a pregnant woman who has been divorced and the direction is to bear her expenses till she has delivered. In the case of such a woman her period of lddat will be till delivery. It is apparent that the maintenance has been related to the period of lddat. Hefzur Rahman (Md) vs Shamsun Nahar Begum 51 DLR (AD) 172.
Section 5—
The only ground for condonation of delay is that the petitioner being an employee of Electricity Supply Department, the service of which is declared as essential, it was difficult for him to get leave quickly when needed, is quite cogent ground to condone the delay of 80 days in filing the Family Appeal before the District Judge. Abdur Razzak alias Abdul Razzacjue vs Mohsena Ara Begum and others 10 BLC 490.
Sections 5 & 23–
Section 23 of the Family Courts Ordinance if read with section 5 will make it clear that the provisions of Muslim Family Laws Ordinance shall have to be followed in case of decree passed by the Family Court for the dissolution of a marriage as enumerated in section 5(a) of the Ordinance if it relates to Muslims only. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47.
Sections 5 & 24–
Sections 5 and 24 of the Family Courts Ordinance are also applicable to the members of other than the Muslim community and they are entitled to avail settlement of disputes regarding maintenance, etc and the Family Court has got the exclusive jurisdiction to try those matters. Ganesh Chandra Das vs Arati Acharjya 54 DLR 348
Section 5(d)–
Maintenance–The wife is not entitled to past maintenance. Maintenance can be allowed to her only from the date of institution of the suit before the Family Court till three months after the decree for dissolution of the marriage. Neither the child nor the person who maintains it can claim past maintenance from the father unless the same is previously fixed. Rustom Ali vs Jamila Khatun 43 DLR 301.
Section 5 (e)- Custody of the child- At any time in the future either of the parents of the child shall be at liberty to move the appropriate Court for an appropriate order in respect of the custody of/access to the child in the light of prevailing circumstances at that time and the Court shall be at liberty to entertain such application and to pass necessary order in respect of the child's custody keeping in view the best interests of the child giving the child an opportunity to express his views.
The observation of the learned Judge of the High Court Division that "violation of any terms of the solenama by any party shall be treated as contempt of Court," being unwarranted and beyond jurisdiction, is hereby expunged
We do not find any reason to interfere with the judgment and order of the High Court Division. This petition is dismissed with the above observations without, however, any order as to costs. Anika Ali VS- Rezwanul Ahsan, 19 LM (AD) 363]
Section 5(h)–
The restitution of conjugal right is a reciprocal right thus it is neither discriminatory nor violative of any of the provisions of the Constitution. Chan Mia (Md) vs Rupnahar 51 DLR 292.
Section-5
A Subordinate Judge has got no jurisdiction to invoke any power under Section 15 I of the Code in the proceedings of a title suit either to grant stay or injunction in respect of a family suit of a family Court. Md. Shafiqul Haque Vs. Mina Begum 10BLT (HCD)-185
Sections 5, 10, 11, 13 and 20–
The Family Court constituted under the Family Courts Ordinance (XVIII of 1985) cannot grant temporary injunction under Order XXXIX, rule 1 CPC in view of the bar of section 20 of the Family Courts Ordinance No.18 of 1985.
Since there is prima facie separation or talak between the petitioner and the OP No.l, the Court cannot grant any injunction restraining the opposite party Nos.2–4 from giving the OP No.1 in marriage to anyone or elsewhere. Maqbul Ahmed vs Safia Khatun 40 DLR 305.
Section-5 read with Specific Relief Act, 1877
Section-39
On 12.10.2000 opposite party No.1 instituted the family suit before the Family Court for dower and maintenance.
The petitioner has already appeared and filed a written statement denying his marriage with her. He has got every opportunity to challenge the ‘Kabinnama’ and the solemnization of the marriage on the very same grounds on which he on 22.10.2000 filed Title suit No.296 of 2000 before a Subordinate Judge. Family Court has got every jurisdiction to decide as to whether the “Kabinnama” in question is a genuine and valid document or not and whether any marriage between the petitioner and Opposite Party No. 1 was ever solemnized or not before it decides to grant any decree for dower and /or maintenance. In such a suit for a decree for dower and/or maintenance, no declaration in respect of the “Kabinnama” or cancellation of the “Kabinnama” is at all necessary. Family Court therefore cannot be expected to wait for the final decision of a title suit on like issues as nobody can surely say when such title suit would find the end of the tunnel. Moreover, it would be acting to frustrate the very purpose of the Ordinance. Md. Shafiqul Haque Vs. Mina Begum 10 BLT (HCD)-185.
Section-5
The appellate court below hold that the plaint iff got five bighas of land as dower and thereafter, the money which was given to the defendant \:o. 1 by selling Jive bighas of land was money loan by the wife to the husband which cannot be treated as dower the family court cannot adjudicate upon the dispute.
Held: The court of appeal below erred law in holding that the money given by the plaintiff by selling 5 bighas of land to the defendant No. 1 was not dower and that the said money was loan. The court of appeal below in the premises, has committed error of law in holding that the said dispute cannot be adjudicated upon by the family court. I am of the view that the family Court has rightly directed the defendant No. 1 to give 5 bighas of land as dower. Most. Rowshan Ara Begum Chowdhury Vs. Tahera Noor Jahan & Ors. 10 BLT(HCD)-307
Section—5
Section 5 of the Ordinance reads as follows:
Jurisdiction of Family Courts-Subject to the provisions of the Muslim Family Laws Ordinance, 1961 (VIII of 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. dissolution of marriage;
b. restitution of conjugal rights;
c. dower;
d. maintenance
e. guardianship and custody of children.
From the expression “other laws” used in Section 3 of the Ordinance, it appears that the Family Courts Ordinance, 1985, controls the, Muslim Family Laws Ordinance, 1961, and not vice versa. Any person professing any faith has a right to bring a suit for the purposes mentioned in Section 5 of the Family Courts Ordinance. A Hindu wife is therefore entitled to bring a suit for maintenance against her husband under the Family Courts 0rdinance. Nirmal Kanti Das Vs. Sreemati Bira Ranig, 14 BLD (HCD) 413.
Section—5
The Family Courts have jurisdiction to entertain, try and dispose of any suit relating to the matters mentioned in clauses (a) to (e) of Section 5 of the Family Courts Ordinance only between litigants who are Muslims by faith. Krishna Pada Talukder alias Kajal Vs. Geetasree Talukder alias Baby, 14 BLD (HCD) 415.
Ref: Attorney General Vs. Prince Ernest, 1957 A.C. 436—Cited.
Section—5
Limitation Act, 1908, Article—120
The Limitation Act does not specifically provide for any particular period of limitation for filing suits by a Muslim wife for arrears of maintenance. The Appellate Division held that residuary Article 120 of the First Schedule, providing for a period of limitation of 6 years from the time when the right to sue accrued in respect of a suit for which no period of limitation is provided elsewhere in the First Schedule, will be applicable to a suit for maintenance by a Muslim wife under the Family Courts Ordinance 1985. Jamila Khatun Vs. Rustom Ali, 16 BLD (AD) 61.
Section—5
Welfare of Child
Plaintiff’s suit was decreed upto the Appellate Division observing that the plaintiff was entitled to take the twin sons in her custody. It is on record that the plaintiff and the defendant are highly educated persons and they are responsible government officers. From the judgment of the Appellate Division it appears that the defendant-petitioner has got married again and as such the welfare of the twin sons will not be protected in the hands of the step-mother. Amirul Bor Chowdhury Vs. Nargis Sultana, 19 BLD (HCD) 213.
Ref: AIR 1959 (Mysore) 150; 17 DLR (WP) 119; 38 DLR(AD)106—Cited.
Section—5
Custody of minor children
The Family Court has the jurisdiction to decide the question of custody of the minor children after determining their welfare, irrespective of any agreement or any assurance reached between the contending parties. The paramount consideration before the Court in deciding the question of custody of the minor children is the ‘welfare and benefit’ of the minors. Nargis Sultana Vs Md. Aminul Bor, 18 BLD (HCD) 343.
Ref: D. F. Mulla’s “Principles of Mahomedam law”; 42 DLR (AD) 234; 46 DLR (AD) 46; 46DLR(AD)148; 46 DLR (HCD) 307; A.I.R. 1982(SC)121; (1893) Chancery, 143; (1946) 9 Sud Park U.S.R.R. 4; A.I.R. 1928(Calcutta)600; 38 DLR (AD) 106—Cited.
Section—5
Maintenance for Child
Even if the children prefer to live with their mother due to natural affection or attachment for her, that would not in any way affect the liability of the father to maintain the children. If the father objects to the custody of the children and wants to assert his own legal right, the proper course for the father would be apply for their custody, but so long as the custody of the children remains with the mother, he cannot on any plea refuse to pay maintenance for the children. Baziur Rahman Sikder Vs Mrs. Tahera Begum, 18 BLD (HCD) 519.
Ref: A.I.R.(29)1942 Madrass 705; PLD 1961 (W.P.)Lahore733—Cited.
Section—5
Jurisdiction of the Family Court to award maintenance
Under section 5 of the Family Courts Ordinance, 1985 not only the wife can file a suit in a Family Court for her own maintenance but also she can claim maintenance for her child. Children in easy circumstances under Mohammadan law are bound to maintain their poor parents, although the latter may be able to earn something for themselves. These poor parents may also file suits in the Family Court for their maintenance from their opulent children. Similarly, poor or disabled relatives, even servants of the wife, can maintain a suit for maintenance under the Ordinance under circumstances enjoined by Mohammadan Law. Jamila Khatun Vs. Rustom Ali, 16 BLD (AD) 61.
Ref: Mulla’s Principles of Mohammadan Law (18th Edition); Abdul Futte Moulvie Vs. Zabunnessa Khatun, (1881) I.L.R. 6 (Cal) 631; Mst. Ghulam Fatima Vs. Sheikh Muhammad Bashir, PLD 1958 (WP) (Lahore) 596; Baillie’s Digest at page 443; Hamilton’s Translation of the Hedaya, at page 142; Sardar Muhammad Vs. Most. Nasima Bibi and others. I9DLR (WP) 50: PLD 1966 (La- bore) 703; Sirajul Islam Vs. Helana Begum and others, 48 DLR (HCD) 48; Muhammad Nawaz Vs.Mst. Khurshid Begum, PLD 1972 (SC) 302, at PP. 304-305; Ghulam Nabi Vs. Muhammad Asghar, PLD 1991 (SC) 443; Mohammadan Law, Volume 11(5th Edition) at page 404 by Syed Ameer Ali, Kozhikoti Khadir Palliveetil Muhamed Haji Vs. Moideen Veettil Kalimabi, 4 I.L.R. ((Madras) 21 1; Tamizul Huq Vs. Shamsul Huq, 43DLR (AD) 34; Adnan Afzal Vs. Sher Afzal, PLD 1969(SC) 187; Hamilton’s translation of the Hedaya, Volume 1, page 146; Volume II of Syed Ameer Ali’s Muhammadan Law, 5th Edition, page 427—Cited.
Sections—5 and 24
The Family Courts Ordinance, 1985 applies to all citizens of Bangladesh irrespective of their religious faith. If Section 24 is read with section 5 of the Ordinance it will be evident that not only the Muslims but also the members of other communities professing other religion come within the ambit of the Ordinance and they are entitled to avail themselves of the forum of the Family Court for speedy settlement of disputes regarding maintenance, guardianship, custody of the children etc. and the Family Court has the exclusive jurisdiction to try these matters. Pachan Rissi Das Vs. Khuku Rani Dasi, 17 BLD (HCD) 563.
Section—5(b)
Restitution of conjugal rights
Restitution of conjugal rights is a reciprocal right of both the husband and wife. It is thus neither discriminatory nor violative of any of the provisions of the Constitution.
The view taken by a Single Judge of the High Court Division in the case of Khodeja Begum and ors. Vs. Md. Sadeq Sarker, reported in 1 8BLD3 1 that no amount of oral evidence is sufficient to prove the marriage unless the marriage is attendant with a duly executed kabinnama or that restitution of conjugal rights is violative of social justice and repugnant to Article 27 of the Constitution is not a correct proposition of law. Md. Chan Mia Vs. Rupnahar, 18 BLD (HCD) 329.
Section—5(b)
Restitution of Conjugal Right Mohammedan Law
Section—281
Suit for restitution of Conjugal rights
Section 5(b) of the Family Court Ordinance, 1985 and section 281 of the Mohammadan Law provides that where a wife without lawful cause ceases to cohabit with her husband, the husband may sue the wife for restitution of conjugal rights. The language used in both the sections of law is one and the same. The view taken by a Single Judge of the High Court Division that “the law of restitution of conjugal rights is void” while exercising power under section 115 of the Code, cannot be endorsed to strike down a piece of legislation practiced over a long period. The legitimacy or otherwise of a valid piece of legislation can only be decided in writ jurisdiction under Article 102 of the Constitution. Hosna Jahan (Munna) Vs. Md. Shajahan (Shaju) and ors, 18 BLD (HCD) 321.
Sections 5 & 23—Provision of the Family Courts Ordinance 1985 have not taken away the power of a Magistrate to order for maintenance under section 488 CrPC. The Sessions Judge committed error of law in setting aside the order of maintenance passed by the Magistrate.
It can safely be presumed that our law makers while promulgating Ordinance No.XVIII of 1985 had in view the provisions of the Family Court Act of Pakistan and in spite of that the word ‘suit’ was specifically and unambiguously used in section 5 instead of the word ‘matters’ which has been used in the Pakistan law. The term ‘matters’ has wider meaning than the term suit’ and the former term definitely includes civil suits as well as criminal or quasi criminal proceedings. And in spite of that, section 20 as quoted above appearing in the Pakistan law made specific provision for vesting the judges of the family Courts which the power under section 488 CrPC. Meher Negar vs Mojibur Rahman 47 DLR 18.
Sections 5 & 24—Sections 5 and 24 of the Family Courts Ordinance are also applicable to the members of other than the Muslim community and they are entitled to avail settlement of disputes regarding maintenance, etc and the Family Court has got the exclusive jurisdiction to try those matters. Ganesh Chandra Das vs Arati Acharjya 54 DLR 348.
Section 6(2)—A Family Court like any other Courts has got inherent jurisdiction to decide whether it has got jurisdiction to entertain a suit. Krishnapada Talukdar vs Geetashree Talukdar 47 DLR 591.
Section—6(1)(a)(b)
Institution of suit
Every suit under the Ordinance shall be instituted by the presentation of a plaint to the Family Court within the local limits of whose jurisdiction the cause of action has wholly or partly arisen or the parties reside or last resided together.
Provided that in a suit for dissolution of marriage, dower or maintenance, the Court within the local limits of whose jurisdiction the wife ordinarily resides, shall also have jurisdiction to try such a suit. Mossammat Jesmin Akhter and others Vs A S M Moniruzzaman , 21 BLD (HCD) 160.
Section—6(4)(g)
Code of Civil Procedure, 1908, Order VII Rule 7
Per A.T.M. Afzal, CJ: The law requires that the relief must be specifically claimed either simply or in the alternative. It is true that general or other relief which the Court may think just may be granted although not specifically asked for. But the essential conditions are that the averments in the plaint must justify such relief and the defendant must get an opportunity to contest such relief. In the name of granting general or other relief the court cannot and would not mount any surprise on the defendant make liable for something which does not arise out of the plaint and as such he had no occasion to answer the same. This is merely an extension of the principle of natural justice.
The defendant was admittedly absent at the hearing of the revision before the High Court Division. The worst that could happen to him was that the Rule could have been discharged for default or on merit and the appellate judgment and decree would have been maintained in that case. But if the learned Judges entertained some bright and innovative ideas about some verses of the Quran hitherto not known for saddling the defendant with more liability than the plaintiff had claimed and received, then was it not necessary and lot elementary that the defendant ought to have been put on notice again? It was like enhancing the sentence of an accused in exercise of revisional jurisdiction in a criminal case. Could any tribunal do it without putting him on prior notice? This is exactly what has been done by the High Court Division which to say the least, was unfortunate. Md. Hefzur Rahman Vs. Shamsun Nahar Begum and another, 19 BLD (AD) 27.
Section—6(4)(g) and 17
Code of Civil Procedure, 1908, Section—115
Per Mustafa Kamal, J: Section 6(4)(g) of the Ordinance provides that the plaint shall contain inter alia the relief which the plaintiff claims. An appeal lies under section 17 of the Ordinance to the Court of District Judge. The High Court Division interferes in revision under section 115 of the Code of Civil Procedure when the lower appellate Court appears to have committed an error of law resulting in an error in the decision occasioning failure of justice. In such a case the High Court Division may make such order in the case as it thinks fit. The High Court Division did not say in the impugned judgment that the lower appellate Court committed any error of law on the point of maintenance. Giving the plaintiffs a substantive relief beyond the frame of the suit is beyond the jurisdiction of the revisional court and is a sad case of judicial excess defying all judicial norms and trampling the judicial procedure. Md. Hefzur Rahman Vs. Shamsun Nahar Begum and another, 19 BLD (AD) 27.
Section 6(2)–
A Family Court like any other Courts has got inherent jurisdiction to decide whether it has got jurisdiction to entertain a suit. Krishnapada Talukdar vs Geetashree Talukdar 47 DLR 591.
Section—6(1)
Place of institution of suit—Within the local limits of whose jurisdiction the parties reside or last resided together —Parties where reside or last resided together—can be gone into at the time of trial of the suit if a proper issue is raised on the point. Abdul Matlib Gaznvi Vs.Toiyab Ali and others, 12 BLD (AD) 30 -
Section 6(4)–
In the name of granting general or other relief the Court cannot and would not mount any surprise on the defendant and make him liable for something which does not arise out of the plaint and, as such, he had no occasion to answer the same. This is merely an extension of the principle of natural justice (ATM Afzal CJ). Hefzur Rahman (Md) vs Shamsun Nahar Begum and another 51 DLR (AD) 172.
Section 6(l)(a)(b)—
Since the law provides that the Family Court suit is to be filed in a Court where the wife ordinarily resides and such suit ought to have been filed at Faridpur because admittedly the former wife has been residing at Faridpur and considering the question of cause of action and balance of convenience and inconvenience of the parties ends of justice will be met if the present suit pending in the Court of Assistant Judge and Family Court, Barisal is transferred to a competent Court at Faridpur for trial. Jesmine Akhter and others vs ASM Moniruzzaman (Babu) 7 BLC 326.
Section 7(1)(3)(5)–
The Muslim Family Laws Ordinance, 1961 when interpreted in the light of Articles 8 and 8(1A) of the Constitution preserves iddat as laid down in the Holy Qur–an : (Mustafa Kamal J). Hefzur Rahman (Md) vs Shamsun Nahar Begum 51 DLR (AD) 172.
— Children in easy circumstances under Mohammadan Law are bound to maintain their poor parents, although the latter may be able to earn something for themselves. These poor parents may also file a suit in Family Court for maintenance from their opulent children. Similarly, poor or disabled relatives, even servants of the wife can maintain a suit for maintenance under the Ordinance of 1985 under circumstances enjoined by Mohammadan Law. Jamila Khatun vs Rustom Ali 48 DLR (AD) 110.
Sections 9(6) and 16(Ka)—
Allegation levelled by maternal grandmother of minor boy against petitioner father that the baby was forcibly taken by petitioner from the custody of maternal grandmother cannot be believed as because neither any FIR nor General Diary had been registered with police station or before any law enforcing agency and it also cannot be swallowed that the petitioner along with mastans took the baby forcibly from the custody of maternal grandmother when the third opposite party, the mother of minor boy appears to have waived her right to have the custody of minor boy and kept herself satisfied in respect of entitlement of the custody of the baby with petitioner father. The propriety and legality of the order of Family Judge will be gone into in the miscellaneous appeal and if the order of family Judge is given effect to, the purpose of whole appeal will be frustrated. The appellate Judge was required to stay operation of the said order of the family Judge till disposal of appeal. MA Rajib vs Md Abu Nayees Faruque and others 6 BLC 30.
The Family Court Ordinance, 1985
Section 16A
Could not find the kabinnama so she filed this suit for dissolution of marriage. Al-Haj Mohibur Rahman VS. Most. Rahana Khatun (Md. Abdul Matin J) (Civil) 7 ADC 878
Section 16(3B)–
A fresh and separate cause of action will arise for failure to pay money of each and every installment for the purpose of sending the judgment debtor to imprisonment for his failure to pay the money under each installment. Maksuda Akhter vs Md Serajul Islam 51 DLR 554.
Section 16(4) & (5)–
Call it the executing Court or the trial Court, it is nontheless the Family Court which passed the decree and its power to allow installments even after passing of the decree is undoubted. Resima Sultana vs Khaez Ahmed Mojumder 49 DLR (AD) 57.
Section—16(3)
In the execution proceeding whether the subsequent execution against the judgment- debtor is maintainable or not?
From the materials on record it was found that on the own seeking of the petitioner 40 installments were granted but the petitioner did not pay a single installment. The execution was started for one installment only in respect of Tk. 13,000/- and odd whereas the total decree was for Tk. three lac and odd and as such the entire decretal amount remained unpaid. As a matter of fact, the execution was for one installment and there is no legal bar to proceeding with the executing under section 16(3) of the Ordinance for the unpaid amount. The entire amount having remained unpaid. there is no legal bar to proceeding with the subsequent execution. Md. Serajul Islam Vs Maksuda Akhter (Navy) Advocate, 20 BLD (AD) 84.
Section—16(3B)
In view of the provision of section 16(3B) of the Ordinance, a fresh and separate cause of action will arise for failure to pay money of each and every installment for the purpose of sending the judgment-debtor to imprisonment for his failure to pay the money under each installment. Maksuda Aktar Vs Md Serajul Islam, 19 BLD (HCD) 466.
Ref: 1981 BCR 212; Karson Ranee Chawda, AIR 1958’99—Cited.
Section 16(4) & (5)—Call it the executing Court or the trial Court, it is nonetheless the Family Court which passed the decree and its power to allow instalments even after passing of the decree is undoubted. Resima Sultana vs Khaez Ahmed Mojumder 49 DLR (AD) 57.
Section—16(5)
Enforcement of decrees
Under the general law the trial Court may allow payment of the installments even after the passing of the decree under certain circumstances. Under sub-section (5) of Section 16 of the Ordinance it is permissible for the Court to allow installments even after the passing of the decree. The difference between the general provisions and those provided in section 16(5) of the Ordinance is that whereas under the former the power is hedged by certain conditions including one of limitation. But under sub-section (5) of section 16 of the Ordinance there is no such condition except that the power should be exercised by way of proper judicial discretion. This power is wider under subsection (5) of section 16 of the Ordinance and it may be exercised either on the application of a party or even suo motu so long as the decree remains unsatisfied. A Family Court therefore has the power to allow installments as it deems fit even after the passing of the decree. Reshma Sultana Vs Khaez Ahmed Mojumder, 17 BLD (AD) 72.
Ref: A.I.R. 1921 (Patna) 340; A.I.R. 1932 Allahabad 273 (FB), A.I.R. 1943 Nagpur 340 (F.B); A.I.R. 1985 (Andhra Pradesh) 49;— Cited.
Section 17–
Remand–The Court of appeal under the Family Courts Ordinance is not competent to remand a suit to the trial Court Scheme of the Family Court is quick disposal of a case between the husband and the wife and for such purpose under section 20 of the Family Courts Ordinance provisions of the Evidence Act and the Code of Civil Procedure (except sections 10 and ll thereof) have been excluded. The Court of appeal below can only decide the appeal and no power to send the case on remand to the Family Court has been given to the Court of appeal below. Hosne Ara Begum vs Alhaj Md Rezaul Karim 43 DLR 543.
Section 17–
The appeal before the court of the District Judge against an interlocutory order passed by the Family Court was not maintainable. Younus Mia (Md) vs. Abida Sultana Chhanda 47 DLR 331.
Sections 17(1) & 20–
Court of the District Judge whether a Family Court–under section 17(1) of the Ordinance an appeal shall lie from a judgment, decree or order of Family Court to "the Court of the District Judge." The latter being a Civil Court, provisions of the Code of Civil Procedure would apply to the proceeding before it. There is no scope for thinking that the District Judge referred to in the Ordinance is a persona designata or a Family Court and that provision of Ordinance XLI, rule 19 were not applicable to proceeding arising out of Family Court judgment. Md Moinuddin vs Amina Khan Majlish 42 DLR 483.
Section 17–
The 'order' in its widest sense may be said to include any decision rendered by a court on question between the parties of a proceeding before the court and the same can be construed or read either final or interlocutory and both are appealable. Atiqur Rahman (Md) vs Ainunnahar 52 DLR 453
Section 17–
The order under challenge is an interlocutory order and the same is appealablethis civil revision petition is not at all maintainable. Firojul Islam (Md) (Firoj) vs Zahanara Akter 52 DLR 107.
Section- 17(1)(5)
Whether a decree will be drawn up by the Family Court after the pronouncement of the judgement.
The formal expression of a decision of a Civil Court is an order. The word ‘Order’ occurring in sub-sections 1 and 5 of section 17 may be said to include any ‘decision’ rendered by a court on a question between the parties of a proceeding before the court. The “Decision” may be both interlocutory and final. The decision rendered by the Family Court is final decision/judgement setting the controversy and determining the rights of the pareties in the suit on consideration of the facts, issues and legal aspect and the same is not an interlocutory order-a decree will be drawn up by the Family Court after the pronouncement of the judgement. Ms. Farhat Rahman Vs. Roomee Tarek Moudud 8BLT(HCD)-108
Section 17–
The mere fact of first plaintiffs not having preferred an appeal or a cross–appeal or cross–objection would not by itself be sufficient to justify refusal to exercise the power contained in rule 33 of Order XLI of the Code. Hasibur Rahman (Md) vs Shakila Begum and another 53 DLR 152.
Sections 17(1) & 24–
Since the word 'Order' has not been defined in the Ordinance it cannot be read to mean as being only final order. Captain Shamsul Alam Chowdhury vs Shirin Alam Chowdhury 43 DLR 297.
Section 17(5)–
The Family Court passed the impugned order rescheduling the mode of payment of the decretal dues by the petitioner in exercise of his judicial discretion. Alamgir (Md) vs Habea Begum 52 DLR 157.
Section 17(7)–
Under section 17(7) of the Ordinance a Subordinate Judge can exercise the appellate power in such family matters only after an appeal is transferred to him by the District Judge for disposal. He has got no like power of a District Judge to take cognisance of an appeal by way of admission. Shafiqul Huq (Md) vs Mina Begum 54 DLR 481.
Section 17— The appeal before the court of the District Judge against an interlocutory order passed by the Family Court was not maintainable. Younus Mia (Md) vs. Abida Sultana Chhanda 47 DLR 331.
Section—17(1)
Appeal—Under section 17(l) of the Family Courts Ordinance there is no scope for any confusion that an appeal shall lie from a judgment, decree or order of a Family Court to the Court of the District Judge’. The Court of the District Judge being a civil Court, the provisions of the Code of Civil Procedure would apply to the proceedings before the Court of the District Judge. Md. Moinuddin Vs. Anna Khan Majlish, 10BLD (HCD) 404
Ref: 38 DLR (AD) I 72;—Cited.FOREST ACT, 1927(XVI OF 1927)
Section 17—The appeal before the Court of the District Judge against an interlocutory order passed by the Family Court was not maintainable. Younus Mia vs Abida Sultana Chhanda 47 DLR 331.
Section 17—The order in its widest sense may be said to include any decision rendered by a court on question between the parties of a proceeding before the court and the same can be construed or read either final or interlocutory and both are appealable. Atiqur Rahman vs Ainunnahar 52 DLR 453.
Section 17—The order under challenge is an interlocutory order and the same is appealable— this civil revision petition is not at all maintainable. Firojul Islam vs Zahanara Akter 52 DLR 107.
Section 17—The mere fact of first plaintiffs not having preferred an appeal or a cross-appeal or cross-objection would not by itself be sufficient to justify refusal to exercise the power contained in rule 33 of Order 41 of the Code. Hasibur Rahman vs Shakila Begum 53 DLR 152.
Section 17(5)—The Family Court passed the impugned order rescheduling the mode of payment of the decretal dues by the petitioner in exercise of his judicial discretion. Alamgir vs Habea Begum 52 DLR 157.
Section 17(7)—Under section 17(7) of the Ordinance a Subordinate Judge can exercise the appellate power in such family matters only after an appeal is transferred to him by the District Judge for disposal. He has got no like power of a District Judge to take cognizance of an appeal by way of admission. Shafiqul Huq vs Mina Begum 54 DLR 481.
Section 20—When section 20 of the Ordinance says that provisions of the Code “shall not apply to proceedings before the Family Courts” it means that those provisions of the Code shall not apply which are in the Ordinance as prescribed modes for conducting judicial business by the Family Courts. Younus Mia vs Abida Sultana Chhanda 47 DLR 331.
Section 20—Section 20 of the Family Courts Ordinance is a bar to the application of the Civil Procedure Code in Family Court proceeding with the exception of sections 10 and 11 under the Family Courts Ordinance. The lower appellate Court cannot take evidence as the provisions of appeal in the Family Courts Ordinance does not provide for taking of evidence. It being special law must be applied strictly. The appellate Court cannot also remand the case to the trial Court as the Family Court Ordinance does not provide for any such provision. Saleha Begum vs Dilruba Begum 53 DLR 346.
Section 20(1)—Court can take into account subsequent event necessitating amendment by addition of new relief that may be allowed to do complete justice. Nazrul Islam Majumder vs Tahamina Akhtar 47 DLR 235.
Section—20
Abatement of a legal proceeding challenging validity of the notifications constituting reserved forest known as Attia Forest—There is no scope for challenging the validity of notification of 1972 under the Forest Act (XVI of 1972) constituting reserved forest after the promulgation of the Attia Forest (Protection) Ordinance (XXXIII of 1982)- All judgments, decrees or orders in respect of Attia Forest shall have no force and all suits, appeals and other legal proceedings challenging constitution of Attia Reserved Forest shall abate-Independently of the Attia Forest (Protection) Ordinance, the Notification of 1972 constituting reserved forest known as Attia Forest is valid. Bangladesh Vs. Abdul Baset Mia, 6 BLD (AD) 62.
Section 20— When section 20 of the Ordinance says that provisions of the Code "shall not apply to proceedings before the Family Courts" it means that those provisions of the Code shall not apply which are in the Ordinance as prescribed modes for conducting judicial business by the Family Courts. Younus Mia (Md) vs Abida Sultana Chhanda 47 DLR 331.
Section 20(1)— Court can take into account subsequent event necessitating amendment by addition of new relief that may be allowed to do complete justice. Nazrul Islam Majumder (Md) vs Tahamina Akhtar and another 47 DLR 235.
Section 20–
When section 20 of the Ordinance says that provisions of the Code "shall not apply to proceedings before the Family Courts" it means that those provisions of the Code shall not apply which are in the Ordinance as prescribed modes for conducting judicial business by the Family Courts. Younus Mia (Md) vs Abida Sultana Chhanda 47 DLR 331.
Section 20–
Section 20 of the Family Courts Ordinance is a bar to the application of the Civil Procedure Code in Family Court proceeding with the exception of sections 10 and 11 under the Family Courts Ordinance. The lower appellate Court cannot take evidence as the provisions of appeal in the Family Courts Ordinance does not provide for taking of evidence. It being special law must be applied strictly. The appellate Court cannot also remand the case to the trial Court as the Family Court Ordinance does not provide for any such provision. Saleha Begum vs Dilruba Begum 53 DLR 346.
Section 20(1)–
Court can take into account subsequent event necessitating amendment by addition of new relief that may be allowed to do complete justice. Nazrul Islam Majumder (Md) vs Tahamina Akhtar and another 47 DLR 235.
Section—20
Code of Civil Procedure, 1908, Order XLI Rule 27
Section 20 of the Ordinance is a bar to the application of the Civil Procedure Code in a Family Court proceeding with the exception of sections 10 and 11 under the Family Courts Ordinance. The lower appellate Court cannot take evidence under Order XLI Rule 27 of the Code as the provisions of appeal in the Family Courts Ordinance do not provide for taking of evidence. Family Courts Ordinance being a special law must be applied strictly. The appellate Court cannot also remand the case to the trial Court as the Ordinance does not provide for any such provision. Saleha Begum Vs Dilruba Begum, 21 BLD (HCD) 422.
Section-20
The affidavit of divorce is a public document and it requires no formal proof the Appellate Court having the power of the original Court has rightly admitted the said instrument of divorce and legally marked the same as Ext. A. Sirajul Islam Vs. Helena Begum & Ors. 3BLT (HCD)-40
Section-21
Attorney in the instant case the defendant petitioner—the defendant petitioner is the husband of the plaintiff-opposite-party and he is male and not a pardahnashin lady and he cannot be represented by an authorised agent, here his brother in whose favour the Power of Attorney has been made by him [defendant]. Md. Atiqur Rahaman Vs. Ainunnahar 7BLT (HCD)-241
Sections 23 & 5— Section 23 of the Family Courts Ordinance if read with section 5 will make it clear that the provisions of Muslim Family Laws Ordinance shall have to be followed in case of decree passed by the Family Court for the dissolution of a marriage as enumerated in section 5(a) of the Ordinance if it relates to Muslims only. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47.
Sections 23 & 5— Provisions of this Ordinance are applicable not only to the Muslim community but also to other communities constituting the populace of Bangladesh. Meher Negar vs Mojibur Rahman 47 DLR 18.
Sections 23 & 5— Provision of the Family Courts Ordinance 1985 have not taken away the power of a Magistrate to order for maintenance under section 488 CrPC. The Sessions Judge committed error of law in setting aside the order of maintenance passed by the Magistrate.
It can safely be presumed that our law makers while promulgating Ordinance No.XVIII of 1985 had in view the provisions of the Family Court Act of Pakistan and in spite of that the word 'suit' was specifically and unambiguously used in section 5 instead of the word 'matters' which has been used in the Pakistan law. The term 'matters' has wider meaning than the term 'suit' and the former term definitely includes civil suits as well as criminal or quasi-criminal proceedings. And in spite of that, section 20 as quoted above appearing in the Pakistan law made specific provision for vesting the judges of the family Courts which the power under section 488 CrPC. Meher Negar vs Mojibur Rahman 47 DLR 18.
Sections 23 & 5—Section 23 of the Family Courts Ordinance if read with section 5 will make it clear that the provisions of Muslim Family Laws Ordinance shall have to be followed in case of decree passed by the Family Court for the dissolution of a marriage as enumerated in section 5(a) of the Ordinance if it relates to Muslims only. Pochon Rikssi Das vs Khuku Rani Dasi 50 DLR 47.
Sections 23 & 5—Provisions of this Ordinance are applicable not only to the Muslim community but also to other communities constituting the populace of Bangladesh. Meher Negar vs Mojibur Rahman 47 DLR 18.
Sections 23 & 5—Provision of the Family Courts Ordinance 1985 have not taken away the power of a Magistrate to order for maintenance under section 488 CrPC. The Sessions Judge committed error of law in setting aside the order of maintenance passed by the Magistrate.
It can safely be presumed that our law makers while promulgating Ordinance No.XVIII of 1985 had in view the provisions of the Family Court Act of Pakistan and in spite of that the word ‘suit’ was specifically and unambiguously used in section 5 instead of the word ‘matters’ which has been used in the Pakistan law. The term ‘matters’ has wider meaning than the term ‘suit’ and the former term definitely includes civil suits as well as criminal or quasi criminal proceedings. And in spite of that, section 20 as quoted above appearing in the Pakistan law made specific provision for vesting the judges of the Family Courts which the power under section 488 CrPC. Meher Negar vs Mojibur Rahman 47 DLR 18.
Section 24—Since the procedure under Order XLI rule 27 is a bar under section 20 of the Family Courts Ordinance in a Family Court proceeding only recourse left to the lower Appellate Court is to fall upon section 24 of the Ordinance to follow the procedure laid down in Guardians and Wards Act while deciding the question of guardianship and custody of a minor. Saleha Begum vs Dilruba Begum 53 DLR 346.
Section—24
Guardians and Wards Act, 1890, Sections—12 and 13
Since the procedure under Order XLI Rule 27 is a bar under section 20 of the Ordinance in a Family Court proceeding the only recourse left to the lower appellate Court is to fall upon section 24 of the Ordinance to follow the procedure laid down in Guardians Wards Act, while deciding the question of guardianship and custody of a minor. Saleha Begum Vs Dilruba Be gum, 21 BLD (HCD) 422.
Ref: Azad Alam Vs. Zinnat Khanam, 1 BLC(AD)24; Yusuf Ali Mamoonji Vs. Alibhoy, AIR 1925 Lahore 567 2 BLT31; 14 BLD 291—Cited.
& 23— Section 23 of the Family Courts Ordinance if read with section 5 will make it clear that the provisions of Muslim Family Laws Ordinance shall have to be followed in case of decree passed by the Family Court for the dissolution of a marriage as enumerated in section 5(a) of the Ordinance if it relates to Muslims only. Pochon Rikssi Das vs Khuku Rani Dasi and others 50 DLR 47.
5 & 23— Provisions of this Ordinance are applicable not only to the Muslim community but also to other communities constituting the populace of Bangladesh. Meher Negar vs Mojibur Rahman 47 DLR 18.
Sections 5 & 23— Provision of the Family Courts Ordinance 1985 have not taken away the power of a Magistrate to order for maintenance under section 488 CrPC. The Sessions Judge committed error of law in setting aside the order of maintenance passed by the Magistrate.
It can safely be presumed that our law makers while promulgating Ordinance No.XVIII of 1985 had in view the provisions of the Family Court Act of Pakistan and in spite of that the word 'suit' was specifically and unambiguously used in section 5 instead of the word 'matters' which has been used in the Pakistan law. The tern 'matters' has wider meaning than the term 'suit' and the former term definitely includes civil suits as well as criminal or quasi-criminal proceedings. And in spite of that, section 20 as quoted above appearing in the Pakistan law made specific provision for vesting the judges of the family Courts which the power under section 488 CrPC. Meher Negar vs Mojibur Rahman 47 DLR 18.
(2)— A Family Court like any other Courts has got inherent jurisdiction to decide whether it has got jurisdiction to entertain a suit. Krishnapada Talukdar vs Geetashree Talukdar 47 DLR 591.
Call it the executing Court or the trial Court, it is nonetheless the Family Court which passed the decree and its power to allow installments even after passing of the decree is undoubted. Resima Sultana vs Khaez Ahmed Mojumder 49 DLR (AD) 57.
Section 24–
Since the procedure under Order XLI, rule 27 is a bar under section 20 of the Family Courts Ordinance in a Family Court proceeding only recourse left to the lower Appellate Court is to fall upon section 24 of the Ordinance to follow the procedure laid down in Guardians and Wards Act while deciding the question of guardianship and custody of a minor. Saleha Begum vs Dilruba Begum 53 DLR 346.
Section 27–
Suit in the Family Court in the face of earlier suit for the self–same relief in the civil Court–There is no bar either under the Family Court Ordinance or under the Code of Civil Procedure in filing two separate suits in two different Courts for the self–same relief. Pending cases in any Court other than the Family Court in matters within the exclusive jurisdiction of the Family Court may continue in such other court if filed before the Family Court Ordinance came in force but there is no bar to withdraw and discontinue a pending case from any other court and in filing a fresh suit in the Family Court for the self–same relief. Abdur Rahman vs Shahanara Begum 43 DLR 599.
Section-17(l)(5)
Whether a decree will be drawn up by the Family Court Lifter the pronouncement of the judgement.
The formal expression of a decision of a Civil Court is an order, the word “Order’ occurring in sub-sections I and 5 of section 17 may be said to include any “decision” rendered by a court on a question between the parties of a proceeding before the court. The “Decision”‘ may be both interlocutory and final. The decision rendered by the Family Court is final decision/judgement setting the controversy and determining the rights of the parties in the suit on consideration of the facts, issues and legal aspect and the same is not an interlocutory order-a decree will be drawn up by the Family Court after the pronouncement of the judgement. Ms. Farhat Rahman Vs. Roomee Tarek Moudud 8 BLT (HCD)-108.
Section-27
Read with Code of Criminal Procedure, 1898 Section-488
Ordinary Criminal Courts have lost jurisdiction to entertain and decide cases those may be filed under Section 488 of the Code of Criminal Procedure relating to maintenance after coming into force of Family Courts Ordinance. Pachan Rishi Das Vs. Khuku Rani Dasi 5 BLT (HCD)-174
General Observation
Mobility and discipline of police as an enforcement machinery has deteriorated alarmingly and complete overhauling and reorganization within police force is overdue in order to streamline and strengthen the command to exercise and] establish full control and supervision of the subordinate officers and ministerial staffs. Mobility, vigilance training alertness, imbibed with sense of honesty patriotism and dedication to duty is the call of the hour. It is for the Government of the day to come forward and take appropriate steps in this regard. Otherwise! it may be too late. The State Vs. O. C. Kafrul & Ors 11 BLT (HCD)-511
General Observation
In respect of Mr. Shamshul Alam Khan, the then Metropolitan Additional Sessions Judge, 3rd court, Dhaka.
An accused cannot be convicted on surmise. There must be direct or very strong circumstantial evidence to prove the guilt of the accused beyond all reasonable doubt. We are of the view that in passing death sentence upon an accused against whom there is no iota evidence or materials before him, the learned Judge has adequately demonstrated that he is not capable of exercising judicial function. In such view of the matter, in the great interest of the credibility of our judicial system, we would strongly recommend that appropriate action should be taken to immediately remove Mr. Shamshul Alam Khan, the then Metropolitan Addition Sessions Judge, 3rd Court, Dhaka fro service in any judicial capacity. We also recommend that inquiries be made regarding his efficiency and integrity. The State Vs. Shahid Javed Gaira @ Garib Miah & Ors 14 BLT (HCD)-502.
Family Court Matter
The parents fight their children's custody cases The children shall be brought by their father to the office of the Department of Social Services, Chattogram every Friday and Saturday and he shall leave them there in the custody of Md. Shahidul Islam. Deputy Director, Department of Social Services, Chattogram. Ms. Mahjareen Binta Gaffar, Clinical Psychologist shall visit the children for the purpose of continuing with their counselling, which shall be for a period of two hours every Friday and Saturday afternoon at 3:00 pm. Rumana Foiz, the mother of the children shall have the right to visit the children at the office of the Department of Social Services, Chattogram during the said period. We make it clear that the father of the children will not be present in or near the office of the Department of Social Services at that time when the children are in that office. Mainul Islam Chowdhury -VS- Rumana Foiz, (5 LM (AD) 358]