The Family Courts Ordinance, 1985

An Ordinance to provide for the establishment of Family Courts. WHEREAS it is expedient to provide for the establishment of Family Courts and for matters connected therewith; NOW, THEREFORE, in pursuance of the Proclamation of the 24th March, 1982, and in exercise of all powers enabling him in that behalf, the President is pleased to make and promulgate the following Ordinance:-

Section 1. Short title, extent and commencement

(1) This Ordinance may be called the Family Courts Ordinance, 1985.

(2) It extends to the whole of Bangladesh except the districts of Rangamati Hill Tract, Bandarban Hill Tract and Khagrachari Hill Tract.

(3) It shall come into force on such date as the Government may, by notification in the official Gazette, appoint.

*The Ordinance has come into force on 15th day of June, 1985 by S.R.O No. 239-L/85, dated: 29th May, 1985.

Section 2. Definitions

(1) In this Ordinance, unless there is anything repugnant in the subject or context,-

(2) Words and expressions used in this Ordinance, but not defined, shall have the meanings respectively assigned to them in the Code.

Section 3. Ordinance to override other laws

The provisions of this Ordinance shall have effect notwithstanding anything contained in any other law for the time being in force.

Section 4. Establishment of Family Courts

(1) There shall be as many Family Courts as there are Courts of ¹Assistant Judges.

(2) All Courts of ²Assistant Judges shall be Family Courts for the purposes of this Ordinance.

(3) All ³Assistant Judges shall be the Judges of Family Courts.

Section 5. 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:-

Section 6. Institution of suit

(1) Every suit under this Ordinance shall be instituted by the presentation of a plaint to the Family Court within the local limits of whose jurisdiction-

Provided that in suits for dissolution of marriage, dower or maintenance, the Court within the local limits of whose jurisdiction the wife ordinarily resides shall also have jurisdiction.

(2) Where a plaint is presented to a Court not having jurisdiction,-

(3) The plaint shall contain all material facts relating to the dispute and shall contain a schedule giving the names and addresses of the witnesses intended to be produced in support of the plaint ⁴ * * * :

Provided that the plaintiff may, with the permission of the Court, call any witness at any later stage, if the Court considers such evidence expedient in the interest of justice.

(4) The plaint shall also contain the following particulars, namely:-

(5) Where a plaintiff relies upon a document in his possession or power as evidence in support of his claim, he shall produce it in the Court when the plaint is presented and shall at the same time deliver the document or a true or photostat copy thereof to be filed with the plaint ⁵and shall also enter such documents in a list to be added or annexed to the plaint.

(6) Where the plaintiff relies upon a document not in his possession or power as evidence in support of his claim, he shall enter such document in a list to be added or annexed to the plaint and state in whose possession or power it is.

⁶(7) The plaint shall be accompanied by twice as many true copies thereof, including the schedule, and the lists of documents referred to in sub-sections (5) and (6) as there are defendants in the suit for service upon such defendants.

⁷(8) The plaint shall be rejected on the following grounds:-

(9) A document which ought to be produced in Court by the plaintiff where the plaint is presented, or to be entered in the list to be added or annexed to the plaint, and which is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit:

Provided that the Court shall not grant such leave save in exceptional circumstances.

Section 7. Issue of summons and notice

(1) When a plaint is presented to a Family Court, it shall-

(2) Every summons issued and notice sent under sub-section (1) shall be accompanied by a copy of the plaint ⁸and copies of the list of documents referred to in sections 6(5) and 6(6).

(3) A summons issued under sub-section (1)(b) shall be served in the manner provided in rules 9, 10, 11, 16, 17, 18, 19, 19A, ⁹20, 21, 23, 24, 26, 27, 28 and 29 of Order V of the Code; and a summons so served shall be deemed to be due service thereof on the defendant.

(4) A notice sent under sub-section (1)(c) shall be deemed to be duly served on the defendant when the acknowledgement purporting to be signed by the defendant is received by the Court or the postal article containing the notice is received back by the Court with an endorsement purporting to have been made by a postal employee to the effect that the defendant had refused to take delivery of the postal article containing the notice when tendered to him:

Provided that where the notice was properly addressed, prepaid and duly sent by registered post with acknowledgement due, it may be deemed to be duly served on the defendant after the expiry of thirty days from the date of posting of the notice notwithstanding the fact that the acknowledgement having been lost or mislead or for any other reason has not been received by the Court within that period.

(5) The cost of service of summons issued under sub-section (1)(b), which shall be equal to the cost of service of similar summons under the Code, and the postal charges for notice sent under sub-section (1)(c) shall be paid by the plaintiff at the time of presentation of the plaint.

Section 8. Written statement

(1) On the date fixed for the appearance of the defendant, the plaintiff and the defendant shall appear before the Family Court and the defendant shall present a written statement of his defence ¹⁰:

Provided that the Court may, on the prayer of the defendant and for good cause shown, fix another date not beyond twenty-one days for the presentation of the written statement of his defence.

(2) The written statement shall contain a schedule giving the names and addresses of the witnesses intended to be produced in support of the defence ¹¹* * * :

Provided that the defendant may, with the permission of the Court, call any witness at any later stage, if the Court considers such evidence expedient in the interest of justice.

(3) Where the defendant relies upon a document in his possession or power as evidence in support of his defence, he shall produce it in the Court when the written statement is presented and shall at the same time deliver the document or a

true or photostat copy thereof to be filed with the written statement ¹²and shall also enter such documents in a list to be added or annexed to the written statement.

(4) Where the defendant relies upon a document not in his possession or power as evidence in support of his written statement, he shall enter such document in a list to be added or annexed to the written statement and state in whose possession or power it is.

¹³(5) The written statement shall be accompanied by twice as many true copies thereof, including the schedule, and the lists of documents referred to in sub-sections (3) and (4), as there are plaintiffs in the suit.

(6) Copies of the written statement, including the schedule, the documents and the list of documents referred to in sub-section (5) shall be given to the plaintiff, his agent or advocate present in the Court.

¹⁴(7) A document which ought to be produced in Court by the defendant when the written statement is presented, or to be entered in the list to be added or annexed to the written statement, and which is not produced or entered accordingly shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit:

Provided that the Court shall not grant such leave save in exceptional circumstances.

Section 9. Consequence of non-appearance of the parties

(1) Where on the day fixed for the appearance of the defendant, neither party appears when the suit is called on for hearing, the Court may dismiss the suit.

(2) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then-

(3) Where a Court has adjourned hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, on such terms as the Court thinks fit, be heard in answer to the suit as if he had appeared on the day fixed for his appearance.

(4) Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall dismiss the suit, unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder.

(5) Where a suit is dismissed under sub-section (1) or wholly or partly dismissed under sub-section (4), the plaintiff may, within thirty days of the making of the order of dismissal, apply to the Court by which the order was made for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal, and shall appoint a day for proceeding with the suit:

Provided that the Court may set the dismissal of a suit under sub-section (4) aside on such terms as to costs or otherwise as it thinks fit:

Provided further that no order setting the dismissal of a suit under sub-section (4) aside shall be made unless notice of the application has been served on the defendant.

(6) Where a decree is passed ex parte against a defendant, he may, within thirty days of the passing of the decree, apply to the Court by which the decree was passed for an order to set it aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him on such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only, it may be set aside against all or any of the other defendants also:

Provided further that no order shall be made under this sub-section unless notice of the application has been served on the plaintiff.

(7) The provisions of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply to an application under sub-section (6).

Section 10. Pre-trial proceeding

(1) When the written statement is filed, the Family Court shall fix a date ordinarily of not more than thirty days for a pre-trial hearing of the suit.

(2) On the date fixed for pre-trial hearing, the Court shall examine the plaint, the written statement ¹⁶* * * and documents filed by the parties and shall also, if it so deems fit, hear the parties.

(3) At the pre-trial hearing, the Court shall ascertain the points at issue between the parties and attempt to effect a compromise or reconciliation between the parties, if this be possible.

(4) If no compromise or reconciliation is possible, the Court shall frame the issues in the suit and fix a date ¹⁷ordinarily of not more that thirty days for recording evidence.

Section 11. Trial in camera

(1) A Family Court may, if it so deems fit, hold the whole or any part of the proceedings under this Ordinance in camera.

(2) Where both the parties to the suit request the Court to hold the proceedings in camera, the Court shall do so.

Section 12. Recording of evidence

(1) On the date fixed for recording of the evidence, the Family Court shall examine the witnesses produced by the parties in such order as it deems fit.

(2) The Court shall not issue any summons for the appearance of a witness for any party, unless, within three days of the framing of issues, the party intimates the Court that it desires the witness to be summoned through the Court and the Court is satisfied that it is not possible or practicable for the party to produce the witness.

(3) The witnesses shall give evidence in their own words and may be cross-examined and re-examined.

(4) The Court may forbid any question which it regards as indecent, scandalous or frivolous or which appears to it to be intended to insult or annoy or be needlessly offensive in form.

(5) The Court may, if it so deems fit, put any question to any witness for the purpose of elucidation of any point which it considers material in the case.

(6) The Court may permit the evidence of any witness to be given by means of affidavit:

Provided that the Court may, if it so deems fit, call such witness for the purpose of examination.

(7) The evidence of each witness shall be taken down in writing, in the language of the Court, by the presiding Judge of the Court and shall be signed by such Judge.

(8) Where the evidence of a witness is given in any language other than the language of the Court, the presiding Judge may take it down in that language, if possible, and an authenticated translation of such evidence in the language of the Court shall form a part of record.

(9) When the evidence of a witness is taken down, it shall be read over to him and shall, if necessary, be corrected.

(10) If the witness does not accept the correctness of any part of the evidence, the presiding Judge may, instead of correcting the evidence, make a memorandum of the objection made by the witness, and shall add such remarks as he thinks necessary.

(11) If the evidence is taken down in a language different from that in which it has been given and the witness does not understand that language, the evidence shall be interpreted to him in the language in which it was given or in a language which he understands.

Section 13. Conclusion of trial

(1) After the close of evidence of all parties, the Family Court shall make another effort to effect a compromise or reconciliation between the parties.

(2) If such compromise or reconciliation is not possible, the Court shall pronounce judgment and, on such judgment ¹⁸either 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.

Section 14. Compromise decree

Where a dispute is settled by compromise or conciliation, the Court shall pass a decree or give decision in the suit in terms of the compromise or conciliation agreed to between the parties.

Section 15. Writing of judgment

(1) Every judgment or order of a Family Court shall be written by the presiding Judge or from the dictation of such Judge in the language of the Court and shall be dated and signed by the Judge in open Court at the time of pronouncing it.

(2) All judgments and orders which are appealable shall contain the point for determination, the decision thereon and the reasons therefore.

Interim order by Family Courts

¹⁹16A. Where, at any stage of a suit, the Family Court is satisfied by affidavit or otherwise, that immediate action should be taken for preventing any party from frustrating the purpose of the suit, it may make such interim order as it deems fit.

Section 16. Enforcement of decrees

(1) A Family Court shall pass a decree in such form and manner, and shall enter its particulars in such register of decrees as may be prescribed.

(2) If any money is paid, or any property is delivered, in the presence of the Court in satisfaction of the decree, it shall enter the fact of such payment or delivery in the aforesaid register.

²⁰(3) Where the decree relates to the payment of money and the decretal amount is not 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 expiry of the time so specified, be executed-

and on such execution the decretal amount recovered shall be paid to the decree-holder.

(3A) For the purpose of execution of a decree under sub-section (3)(a), the Court shall be deemed to be a Civil Court and shall have all the powers of such Court under the Code.

(3B) For the purpose of execution of a decree under sub-section (3)(b), the Judge of the Family Court shall be deemed to be a Magistrate of the first class and shall have all the powers of such Magistrate under the Code of Criminal Procedure, 1898 (Act V of 1898), and he may issue a warrant for levying the decretal amount due in the manner provided in that Code for levying fines, and may sentence the judgment debtor, for the whole or any part of the decretal amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to three months or until payment if sooner made.

(3C) When a decree does not relate to payment of money, it shall be executed as a decree, other than a decree for money of a Civil Court and for that purpose the Court shall be deemed to be a Civil Court and shall have all the powers of such Court under the Code.

²¹(4) The decree shall be executed by the Family Court passing it or by such other Family Court to which the decree may be transferred for execution by the Court passing it and in executing such a decree the Court to which it is transferred shall have all powers of the Family Court passing the decree as if the decree were passed by it.

(5) The Court may, if it so deems fit, direct that any money to be paid under a decree passed by it be paid in such instalments as it deems fit.

Section 17. Appeal

(1) Subject to the provisions of sub-section (2), an appeal shall lie from a judgment, decree or order of a Family Court to the Court of District Judge.

(2) No appeal shall lie from a decree passed by a Family Court-

(3) An appeal under this section shall be preferred within thirty days of the passing of the judgment, decree or order excluding the time required for obtaining copies thereof:

Provided that the Court of District Judge may, for sufficient cause, extend the said period.

(4) An appeal shall-

(5) A certified copy of the judgment, decree or order of the Court from which the appeal is preferred shall be attached with the appeal.

(6) Any order passed by the Court of District Judge shall, as soon as may be, 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 register of decrees.

²²(7) The District Judge may transfer an appeal to the Court of an Additional District Judge or a Subordinate Judge for hearing and disposal and may withdraw any such appeal form such Court.

Section 18. Power of Family Court to summon witnesses

(1) A Family Court may issue summons to any person to appear and give evidence, or to produce or cause the production of any document:

Provided that-

(2) If any person to whom a Family Court has issued summons to appear and give evidence or to cause the production of any document before it wilfully disobeys such summons, the Court may take cognizance of such disobedience, and after giving such person an opportunity to explain, sentence him to a fine not exceeding one hundred taka.

Section 19. Contempt of Family Courts

A person shall be guilty of contempt of the Family Court if he, without lawful excuse,-

and the Family Court may forthwith try such person for such contempt and sentence him to a fine not exceeding two hundred taka.

Section 20. Application and non-application of certain laws

(1) Save as otherwise expressly provided by or under this Ordinance, the provisions of the Evidence Act, 1872 (I of 1872), and of the Code except sections 10 and 11 shall not apply to proceedings before the Family Courts.

(2) The Oaths Act, 1873 (X of 1873), shall apply to all proceedings before the Family Courts.

Section 21. Appearance through agents

If a person required under this Ordinance to appear before a Family Court, otherwise than as a witness, is a pardahnashin lady, the Family Court may permit her to be represented by a duly authorised agent.

Section 22. Court-fee

The Court-fees to be paid on any plaint presented to a Family Court shall be twenty-five taka for any kind of suit.

Section 23. Ordinance VIII of 1961 not affected

(1) Nothing in this Ordinance shall be deemed to affect any of the provisions of the Muslim Family Laws Ordinance, 1961 (VIII of 1961), or the rules made thereunder.

(2) Where a Family Court passes a decree for the dissolution of a marriage solemnised under the Muslim Law, the Court shall, within seven days of the passing of the decree, send by registered post a certified copy of the same to the appropriate Chairman referred to in section 7 of the Muslim Family Laws Ordinance, 1961 (VIII of 1961), and upon receipt of such copy, the Chairman shall proceed as if he had received an intimation of talaq required to be given under the said Ordinance.

(3) A decree passed by a Family Court for the dissolution of a marriage solemnised under the Muslim Law shall-

Section 24. Family Court deemed to be a District Court for purposes of Act VIII of 1890

(1) A Family Court shall be deemed to be a District Court for the purposes of the Guardians and Wards Act, 1890 (VIII of 1890), and notwithstanding anything contained in this Ordinance, shall, in dealing with matters specified in that Act, follow the procedure specified in that Act.

(2) Notwithstanding anything contained in the Guardians and Wards Act, 1890 (VIII of 1890), an appeal from an order made by a Family Court as District Court under that Act shall lie to the Court of District Judge, and the provisions of section 17 shall apply to such appeal.

Section 25. Transfer and stay of suits and appeals

(1) The High Court Division may, either on the application of any party or of its own accord, by an order in writing,-

(2) A District Judge may, either on the application of any party or of his own accord, by an order in writing, transfer any suit under this Ordinance from one Family Court to another Family Court within the local limits of his jurisdiction.

(3) Notwithstanding anything contained in this Ordinance, a District Judge may transfer an appeal pending before him under this Ordinance to any Court of Additional District Judge or Subordinate Judge under his administrative control and may also retransfer such appeal from such Court to his own Court.

(4) Any Court to which a suit or appeal is transferred under this section, shall, notwithstanding anything contained in this Ordinance, have the jurisdiction to dispose it of in the manner as if it were instituted or filed before it:

Provided that on the transfer of a suit, it shall not be necessary to commence the proceedings before the succeeding Judge de novo unless the Judge, for reasons to be recorded in writing, directs otherwise.

(5) A District Judge may, by an order in writing, stay any suit pending before a Family Court within the local limits of his jurisdiction.

(6) The High Court Division may, by an order in writing, stay any suit or appeal pending before any Family Court or Court of District Judge.

Section 26. Power to make rules

The Government may, by notification in the official Gazette, make rules for carrying out the purposes of this Ordinance.

Section 27. Provisions relating to pending cases

Notwithstanding anything contained in this Ordinance, all suits, appeals and other legal proceedings relating to, or arising out of, any of the matters specified in section 5 pending in any Court immediately before the commencement of this Ordinance shall continue in the same Court and shall be heard and disposed of by that Court as if this Ordinance had not been made.