Md A H Siddiqee:
The Family Court Ordinance-1985 is a special law with many lacunas. The then government passed this law by an ordinance to minimize the sufferings many women. But, instead of minimizing the sufferings, this law has become a constant source of pain for the Muslim women and children in general.
The jurisdiction of the Family Court reads as follows:
- Dissolution of marriage
- Restitution of conjugal right
- Dower
- Maintenance
- Guardianship and custody of children.
This paper only sheds light on Dower and Maittenance of the children.
When a marriage breaks up by Talak, the question of defer dower and maintenance comes. When a woman invokes the provisions of the FCO-1985 for dower and maintenance for her children, a painful journey starts. Though proved by a registered Kabin Nama, a woman has to prove that she was the legitimate wife of the husband and her children are legitimate too; and as such they are entitled to the deferred dower and Maintenance in line with the prescribed law. Even admitted by the defendant by written statement, a suit in Family court procrastinates for a long time as the court requires taking chief and cross-examining the plaintiff to ascertain her legal claim. When the chief is over, the defendant takes time after time for cross-examination to frustrate the plaintiff. At this point many helpless plaintiffs give up the suit as they have no means to fight the suit anymore.
Many women, however, continue the suit by spending their last savings like ornaments. When the learned court concerned passes Judgment and decree in favour of the women another chapter begins to unfold. As the Defendant- Judgment Debtor prefers appeal before the court of Dist Judge against the Judgment and decree of the Trail court without depositing 50% of the decreetal amount. As per the section 16 of the FCO-1985, the Plaintiffs –Decree Holder are to file the execution case in the court which passed the decree. The section 16(3) of the FCO-1985 dealing about the “Enforcement of Decrees” reads as under:
Where the decree relates to the payment of money and the decreetal amount is no paid within the time specified by the court, the decree shall on the prayer of the decree holder to be made within a period of one year from the date of Expiry of the time so specified , be executed –
(a) as a decree for money of a civil court under the code
(b) as an order for payment of fine made by a magistrate under the code of criminal Procedure ,1898 (Act V of 1898).
Regrettably enough, this section tells nothing what will become of if plaintiff fails to file the execution case within time. But real problem arises when the Defendant- Judgment Debtor prefers appeal before the court of Dist Judge against the Judgment and decree of the Trail court, the plaintiff get puzzled to fix what to do next; whether she will file the execution case or not as she has to contest the appeal. On many occasion, the family court even does not comprehend the matter. The learned court below thinks that irrespective of appeal has been filed or not, the execution case must be filed within time. But the vital question is that when an appeal is preferred, the court below cannot proceed further for the ends of justice. For the purpose of the decree this court will be deemed to be civil court. Till disposal of the appeal, the Plaintiffs –Decree Holder are unable to file execution case; since an appeal is a continuation of a suit. In the case of Dilip vs Mohd. Azizul (2000) as reported in 3 SCC page 671, the Supreme court of India passes a land mark judgment which reads as follows “an appeal is a continuation of a suit”. In the case of Ramakuntury vs Avara (1994) as reported in 2 SCC page 642(645) , the Indian Supreme court of India passes another land mark judgment which reads as follows that “a decree passed by an appellate court would be construed to be a decree passed by the Court of the First Instant. An appeal is virtually a rehearing of the matter. The appellate court possesses the same powers and duties as the original court. Once again the entire proceedings are before the appellate court which can review the evidence as a whole, subject to statutory limitations, if any, and come to its own conclusion on such evidence.” Additionally, in the case of Tarlok Sing vs Municipal Corpn, Amritsor (1986) as reported in 4 SCC 27, the Indian Supreme court upholds that “where an appeal is provided by Law and is filed against a decree and order by a lower court, the decision of the appellate court will be the operative decision. it is obvious that when an appeal is made, the appellate authority can do one of the three things, namely; (1) it may reverse the order under appeal (2) it may modify the order (3) it may merely dismiss the appeal and thus confirm the order without modification. In all these three cases after the appellate authority has disposed of the appeal, the operative order is the order of the appellate authority whether it has reversed the original order or modified it or confirmed it. It is the appellate decision alone which subsists and is operative and capable of enforcement”.
Additionally, the court below is bound by law to get the communication of the Appellate court for the conclusive order; as section 17(6) of the FCO-1985 which reads as under:
17(6). Any order passed by the Court of District Judge Shall , as soon as may be communicated to the family court which shall modify or amend the judgment, decree or order accordingly and shall also make necessary entries to that effect in the appropriate column in the registrar of decrees.
Once again, since the record of the case remains not with the Execution court, the Execution court is also not in a position to take the case. To execute any decree, the original copy of the decree should be kept with the Execution court. As the record is transmitted to the Appellate Court, the Plaintiffs –Decree Holder are left with no option but to wait for the record to come from Appellate Court to Execution court.
To worse the matter, many Defendant- Judgment Debtors prefer CIVIL REVISION before the Hon’ble High Court Division without mentioning the same in any particular bench. Many Defendant- Judgment Debtors fox cunningly, files an application in the court below by obtaining a lawyer’s certificate issued under the certificate is issued under the authority of the decision passed by the Appellate Division of the Supreme Court Division of Bangladesh reported in 44DLR (AD) Page-219 which reads as under:
“When a certificate from an advocate of a superior court is placed before a subordinate court conveying a prohibitory order the latter should rather believe than doubt the authenticity of such communication.”
When a certificate is submitted in the court below, the court concerned willfully allows fresh dates for the order to come from the Hon’ble HCD. This is how; the Family Court becomes a useless court.
In the light of the above landmark judgments and points, we can say that the execution case should be filed after the appeal is disposed.
We know that the FCO-1985 is a special Law; and the provisions of the ordinance are to be deemed as “Mandatory”. But practically speaking, the provisions of the ordinance of the FCO-1985 have become “Directory”. As for example, the section 13(2) of the FCO-1985 dealing about the “conclusion of trial” reads as under:
“If such compromise or reconciliation is not possible, the court shall pronounce judgment and, on such judgment either at once or on some future day not beyond seven days of which due notice shall be given to the parties or their agents or advocates], a decree shall follow.
In the eye of LAW, if the word “Shall” is used, it becomes “Mandatory”. But we see that in most of the cases the court fails to pronounce judgment as specified in the section. Rather, the court pronounces judgments beyond seven days. In this regard, all judgments given after the time are deemed to be rejected in the eye of Law. Now, the question is whether the learned court will declare them to be annulled. On the hand, we see that the court pronounced many judgments in this way and executed the Decrees too. So, it is clear that the provisions of the ordinance of the FCO-1985 have become “Directory”. The Legislature drafted this law in this way just to give an indication to the Judiciary to conclude the Family Cases expeditiously to minimize the sufferings of the helpless women.
So, to explain the matter elaborately the definition of “Directory” and “Mandatory” as described in Blacks Law Dictionary is given below:
A provision in a statute, rule of procedure, or the like, which is a mere direction or instruction of no obligatory force, and involving no invalidating consequence for its disregard, as opposed to an imperative or mandatory provision, which must be followed.
From the above discussion, we can say that section 17 of the FCO -1985 is also Directory as it has no obligatory force. Additionally, it is not possible for many women and minors to do necessary tadbir by themselves with sickly physical and poor financial condition.
Many young judges get confused as section 20 of the FCO-1985 which reads as follows:
Save as otherwise expressly provided by or under this ordinance, the provisions of evidence Act-1872 and of the code except sections 10 & 11 shall not apply to all proceedings before the Family courts.
These young judges think that the provisions of the CPC are not applicable at any stage of any family suit.
Again, section 24 of the FCO-1985 which reads as follows:
24(1) A family court shall be deemed to be District court for the purposes of the Guardian and Ward Act, 1890( V111 of 1890) , and notwithstanding anything contained in this ordinance, shall, in dealing with matters specified in that Act, follow the procedure in that Act.
The execution case in the FCO-1985 does not fall within the ambit of this section. So, for the purpose of the execution, the Family court should be deemed to be a civil court. On many occasion, they think that appeal is a separate suit having no connection with the execution. Here lies the dilemma. The practicing lawyers find themselves in a difficult situation as they are to handle their clients.
From the above discussion, we can see that judges of the family court, who are Assistant Judges, are simply unable to comprehend simple law matters. They are unable to give justice to the helpless women and minor children. The Family Court has failed to discharge its duty as entrusted with them since Assistant judges preside this court who lack in judicial mind and courage. From our bitter experience, we feel that at least Joint Dist Judges should preside this court. As the Joint Dist Judges are prudent enough to comprehend the legal points; since many young Judges do not even understand what an appeal is. They think that Appeal is not continuation of a suit. Rather appeal is a different suit. For, such kind of mis-understanding, unnecessary litigation continues to harass helpless women and children. So, the Family Court Ordinance-1985 should be amended as soon as possible. It is futhermore suggested that the Muslim Family ordinance -1961 should also be ammended to the effect that a notice of talak under section 7 or 8 may be issused along with the payment of defered Dower and maintenace of the children at least for three months to the lady to whom the said talak notice is being served. If this amendment can be done, we feel that justice can be brought about for the helpless women and children; and the lower court can avoid huge numbers of suits to dispose.
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