Jurisdiction of Family Court

 

According to The family court Ordinance 1985.  Jurisdiction of family court is details in below: -

Family court ordinance,1985 section-5 says that subject to the provision of Muslim Family Laws ordinance ,1961, a family court shall have exclusive jurisdiction to entertain , try and dispose of any siuit relating to, or arising out of, or any of the following matters , a) dissolution of marriage, b) restitution of conjugal rights) dowered) maintenance, and e) guardianship and custody of children.

a)     Dissolution of marriage: There are generally speaking three types of dissolution under Muslims Law, dissolution by the death of either party, dissolution by the act of parties and dissolution by judicial process of Faskh.

The dissolution of marriage by the judicial process of faskh analysis in the Muslim marriage acts, 1939.

The Muslims Marriage act allows the wife’s right to judicial divorce on the grounds of her husband’s inability to maintain her, as well as him imprisonment , insanity , or affliction with serious disease, and leprosy. The dissolution of marriage by an act of the parties , for example talq by the husband , show that there are some instance where the statutory enactments by strictly adhering to the procedural technicalities, are favoring woman to continue their marriage.

Cases of talaq khula, and talaq-e-tawfeed are all dissolution by the act of the parties. While the former id the unilateral right of the  husband , the latter is the complementary  right  of the wife where she has to make some sacrifice or depends  on the desire of the husband to delegate. The cases of talaq, khula and  talaq-e-tawfeed in Bangladesh are important to consider whether women are actually deprived of rights granted under Islamic Law.

b)     Restitution of conjugal rights:- if the wife unwillingly  to live with her husband without any legal cause than the husband prayer for the restitution of conjugal right to the court against his wife . But wife have have two defense:-

1) If the marriage is being period of means time and though the sexual conjugal life is made but at this situation husband can not get any decrees from court

if the marriage time the wife is child  than the wife refuse to live husband  this time can not get any decrees from court.

It was argued that although this remedy is allowed to both husband and wife.

In a recent decision by the high court division of the supreme court in Hosne Begum Vs Rezau7l Karim it was rightly observed that the wife has Under Islamic Law a right to refuse the conjugal rights of the husband if she is treat ed by him with cruelty or if there is failure to pay prompt dower, thus, physical and mental torture of the wife was not only held to be an offence punishable with imprisonment and fine but it also gave a valid ground to the woman to refuse restitution of conjugal rights to the husband

e) Guardianship and custody of children:-  Traditionally , the right of guardianship of children is always vested in the father . The judiciary in Bangladesh is not giving enlightened judgments in cases of guardianship; they are Mainly Following the conservative line of interpretation of not recognizing a woman as a natural guardian of her children.

Guardianship: Under Hanafi Law a mother can only be the Legal Guardian of a minor’s property at the death of the father, the paternal grandfather or their executors, provided she is appointed by the court or the father or the paternal grandfather. By strictly following the principle of legal guardianship after the death of the father, the property is often not6 properly protected.

The Commission suggested that in the absence of the father the Family Court Should be able to appoint the mother for the legal protection and management of the minor’s property. The critic was emphases that only if there is no trustworthy male guardian should the property of the minor be given to the other.

Custody: The Hanafi school entrust the mother to have custody of her daughter until she attains puberty and of her son till he is 7 years of age, while the Shafi and Maliki school entitle the mother to have custody of a female child until her marriage .The right of the mother to the custody of her children continues even when she is divorced by the father of her children, but she forties the right by marrying a stranger or by change of regions. If the mother forfeits her right it devolves upon her nearest female relation until the father is legally entitled.