The Honorable precedent of Bangladesh is pleased to make and Promulgate “Family Court Ordinance, 1985. To provide for establishment of family Court and for matters connected therewith. The Ordinance has made provisions for settlement of dispute between the family Court Judge before commencement of the trial or even conclusion trial under the aforesaid Ordinance.
Section 10 of the family courts Ordinance provides:
(a) When the written Statement is filed the family court shall fix a date ordinarily of not more then thirty days for a pretrial hearing of the suit.
(b) On the date fixed for pretrial hearing the court shall examine the plaint, the written statement and document foiled by the parties and shall also if it so deems fit, hear the parties
(c) At the pretrial hearing the court shall ascertain the points at issue between the parties and attempt to affect a compromise or reconciliation between the parties, if this possible.
(d) If no compromise or Reconciliation is possible, the Court shall frame the issues in the suit and fix a date ordinary of not more than thirty days for recording evidence.
From the above, it is seen that the Family Court itself will take initiative for compromise or reconcile the matter before, the trial after consideration of the pleading and document filed by them commencement of the trial and after ascertaining the points at issue. In this way the court can resolved the matter in an alternative way of the court procedure.
The family court can take initiative even after recording the evidence and before conclusion of trial. It has been provide in section 13 and 14 of the Family Court ordinance, 1985. (Ordinance XVII of 1985) Section 13 provides:-
(I) After the close of evidence of all parties, the family Court shall make another effort to affect
(II) A compromise or reconciliation between the parties.
(III) If such compromise or reconciliation in not possible the court shall pronounce judgment either at once or on some future day not beyond sever days of which the notice shall be given to the parties as their agent or advocate and or such judgment, a decree shall follow.
Section 14 of the ordinance XVII of 1985 provides that whose a dispute is settled by compromise or conciliation, the Court shall pass a decree or give decision in the suit in terms of compromise as conciliation between agreed to between the parties.
From section 13 and 14 of the ordinance XVII of 1985 it is seen that if settlement before trial is not possible, the court shall record evidence and make another effort to compromise or reconcile the matter between the parties and this is it last initiative. If the compromise or reconciliation is possible, the court shall pass a compromise is accordance with relevant provisions laid down in the order XXIII of the code of civil procedure 1908. In this way a family Court may settle any matter before it by its own initiative under provision of law.
Trial able by village court
Cases trial able by village court: Section 3 of the Gram Adalat Ain 2006 provides that notwithstanding contained in the code of civil procedure all cases relating to criminal cases specified in part-1 of the schedule and to civil cases specified in part-II of the schedule shall save as other wise provided hereinafter, be trial able by village courts shall have jurisdiction to try any such case or suit.
A village court shall not try a case relation offence specified in part-I of the schedule if the accused had previously been convicted of a cognizable offence or a case relating to any matter specified in part-II of the schedule if
(a) The interest of minor is involved in the suit;
(b) Provision for arbitration has been made in a contract between the parties to the dispute;
(c) The government or a Local authority a public servant acting in the discharge of his duty a party to the dispute.
The provisions of subsection (1) shall not apply to a suit or proceeding to establish a tile to any immovable property in respect of which an order for delivers of possession has been made by a village court as to recover possession thereof section 3 read with part-I of the schedule to the Act makes it clear that in a cases where the offence alleged are under section 143 and 147 of the panel code read with the third or fourth clause of section 141 of the code when the common object of the unlawful assembly is to commit of offence under section 323 or 426 or 447 of that code and when that more then ten person s are involved in the unlawful assembly. Offence under section 160,334,341,342,352, 358,504,506 (first part), 508,509 and 510 are exclusive trial able by village court. Offences under section 379,380 and 381 when the offence committed is in respectful of cattle and value of cattle does not exceed Tk 25000/=.
Offence under section 403, 406, 417 and 420 when the amount in respect of which the offence is committed does not exceed twenty five thousand taka. Offence under section 427of the panel code is exclusively trial able by village court when the value of the property does not exceed twenty five thousand taka. Offence under section 428 and 429 of the panel code are also trial able by village court when the value of the cattle does not exceed twenty five thousand taka. Offence under section 24,16 and 27 of the cattle trespass Act, 1871 is trial able to village court as it has been laid down in section 3 of this Act.
Exclusive Of decision: section 9 of the gram Adalat Ain, 2006 provides for execution of the decision of gram Adalat, they are as follows:
(a) Where a village court decides to award compensation to a person or to order the delivery of property or possession it shall pass a decree in which form and in such manner as may be prescribed and shall enter the particulars there of in the prescribed manner.
(b) If any money is paid or any property or possession is delivered in the presence of the village court in satisfaction of the decree, it shall enter the fact of payment as delivery as the case may be, aforesaid register.
(c) Where a decree relates to payment of compensation and amount is not paid within the prescribed time, the Chairman shall recover it in the same way as the procedure of recover of arrear tax of union Parishad Under PDR Act, 1913 and shall give it to the party aggrieved.
(d) When the satisfaction of a decree can be had otherwise than by payment of compensation, the decree may be presented for execution to the court of assistant Judge having jurisdiction and such court shall thereupon proceed to execute the decree as if it where a decree passed by itself.
(e) A village court may, if it thinks fit direct that the amount of compensation be paid in such installment do it may fix.
Finality of decision: Section 8 of the Gram Adalat Ain, 2006 provides that if the decision of a village court is unanimous or by majority of four to one or three to one where four members is present. The decision shall be binding on the parties and shall be enforceable in accordance with the provisions of this Act. There is nothing in this section whether this decision is final and it is not appeal able, in Mofizur Rahman’s case Hon’ble high court decision has observed. Where the village court makes its decision by majority of four tio one it is final and no case against such decision. In Mobarak Ali’s cases Hon’ble Appellate decision has observed that is no express provision in the ordinance (now Act) barring the jurisdiction of a civil court to question the legality or propriety of the village court’s decision (43 DLR 60 AD)
Major Legal system
Different writers have attempted to explain the main legal system of world according to their own way. Wigmore has compiled 16 different system of law, of which half remain alive neither in pure form or in combination of other system while the remainders have disappeared, according Rine Devit and Bryte there are four major contemporary family of law; -
(a) Rome – Germanic system, (b) Common law system, (c) Socialist law system, (d) philosophical or religious system. Another classification can be made- 1) Soviet law system 2) Primitives law system.
(b) Civil Law: Civil law is originated from the word “Jus civile” of Rome. It can be employed different senses. In the other word civil law is concerned with the enforcement of personal rights that are contrary to the principal of criminal law. International civil law is system of law those nation, which mostly have the well-organized and written literature of system of Roman law.
(c) Common law: - The common law system, in narrow sense means the English system of law as a whole. i.e., the law of English and of those countries which have modeled system on English law. Common law is that body of local as municipal laws whose essential characteristics are not available in any code, but it can be said that it is being gradually evaded, firstly: from most of the cases decided by court of England, then from other parts of common wealth and America.
(d) Religious Law system: According to this school, law has no execute of it’s own rather it is the outcome of religion and its philosophy there system lay more emphasis on the duties of persons rather than on their rights. Muslim law, Hindu law, Jewish law and other law system are not the law of any state but the followers of that religions are abide the rules of their personal religious law.
(e) Soviet Law system: The soviet legal system is a new system of public order devised by communist thinkers and politician after the Russian revolution of 1917. Some of the legal scholar considers this system under civil law system cog it has preserved some of the important characteristic of Roman law. But after 2nd world war this system is being given a distinct and separate status and it has been regarded as a new system in the field of comparative legal studies
(f) Primitive law system: Primitive law is mainly based on primitive custom and usages it is said to be the law of those undeveloped people who have recognized certain social rules, on the basis of their old customs and traditions. Although the reception of western ideas and institutions are influencing the people and their rules, the traditional ideas of social order, morality and custom still persists.
Conclusion: Among the legal systems, mentioned and above, two are mainly important firstly common laws, secondly civil law. For the purpose of comparative study, we should have knowledge about the two systems.
Major Legal system
Different writers have attempted to explain the main legal system of world according to their own way. Wigmore has compiled 16 different system of law, of which half remain alive neither in pure form or in combination of other system while the remainders have disappeared, according Rine Devit and Bryte there are four major contemporary family of law; -
(a) Rome – Germanic system, (b) Common law system, (c) Socialist law system, (d) philosophical or religious system. Another classification can be made- 1) Soviet law system 2) Primitives law system.
(b) Civil Law: Civil law is originated from the word “Jus civile” of Rome. It can be employed different senses. In the other word civil law is concerned with the enforcement of personal rights that are contrary to the principal of criminal law. International civil law is system of law those nation, which mostly have the well-organized and written literature of system of Roman law.
(c) Common law: - The common law system, in narrow sense means the English system of law as a whole. i.e., the law of English and of those countries which have modeled system on English law. Common law is that body of local as municipal laws whose essential characteristics are not available in any code, but it can be said that it is being gradually evaded, firstly: from most of the cases decided by court of England, then from other parts of common wealth and America.
(d) Religious Law system: according to this school, law has no execute of it’s own rather it is the outcome of religion and its philosophy there system lay more emphasis on the duties of persons rather than on their rights. Muslim law, Hindu law, Jewish law and other law system are not the law of any state but the followers of that religions are abide the rules of their personal religious law.
(e) Soviet Law system: The soviet legal system is a new system of public order devised by communist thinkers and politician after the Russian revolution of 1917. Some of the legal scholar considers this system under civil law system cog it has preserved some of the important characteristic of Roman law. But after 2nd world war this system is being given a distinct and separate status and it has been regarded as a new system in the field of comparative legal studies
(f) Primitive law system: primitive law is mainly based on primitive custom and usages it is said to be the law of those undeveloped people, who have recognized certain social rules, on the basis of their old customs and traditions. Although the reception of western ideas and institutions are influencing the people and their rules, the traditional ideas of social order, morality and custom still persists.
Conclusion: Among the legal systems, mentioned and above, two are mainly important firstly common laws, secondly civil law. For the purpose of comparative study, we should have knowledge about the two systems.
Difference the common law and civil
There is basis difference in common law and civil law system,. In civil law countries there is similarity regarding rules relating to obligatory relations – like –contract movable property, law of torts and difference are present in customary law- such as marriage & succession
It can be said that in civil law uniformity could be achieved due to assimilation of Roman law and codification only.
Or civil law can be said-more uniform in comparison to common law.
Following are the main difference of both the system:-
(a) Codification:- common law system in India and UK has not been transformed into statute law on all subjects. For example –law of tort and private international law. In civil law system as in France and Germany, statutes are available on this subject.
(b) Judicial decision: In countries like France and Germany judicial decision are not given that importance as given in common law system. In France stare decisis is not followed in its true sense. Because court of France are not bound by any kind of judgment. Only codes and statutes are binding for France courts.
(c) Legislation: In common law system legislation is based on written provisions, Jurisprudential writings, and principles of law and opinion of jurists, which were evolved from the decision of the courts of England. Legislation in civil countries, are influenced by pre-existing Roman law principles.
(d) Custom:- Custom played a vital role in shaping of common law. The difference of general custom and special customs as seen in England is not found in civil law countries.
(e) Judgment:- In common law Judgments are personal The system of Judgment in civil law countries are short. But the Judgment in common law countries are big in size. In common law- more stress is given on finding and getting rule of law, where as –in continentals countries more stress is given on
real decision and less stress on, “rules of Law Books”
(f) Equity:- In England in 17th and 19th century, equity has been accepted complementary of common law. Still in England a difference is maintained between the legal & equitable claims, their defenses and remedies etc, In continental countries this double is not adopted.
(g) Rules of law:- IN India , USA like countries more stress is given on rule of law and is seen the hair splitting tendency, In fact, in this process true justice can not be done , in civil law system. More stress is given on practical aspect.
(h) Administrative law and General law:- In France , there is two types of courts- (1) Administrative (2) General. Administrative matters are decided administrative court. Even though a judge pronounce a judicial decision enforcement of such decision depends upon administrative authority. IN common the same court regulates countries the both matters although, some common law countries already initiated different courts.
(i) Evidence: Judge of continental system (civil- system) take the help of additional evidence also to find out the truth, judges in common law system, does not take the help of additional evidences and in trial, the lawyers are forcefully dominate the proceeding of the court.
Conclusion: In civil law tendency has been observed, in knowing the truth, as result adjudication is done properly
Court system of USA, with relevant discussion of other courts in USA
It is mentioned in the constitution of USA that –by the decision of the congress, from time to time Supreme Court & the other subordinate courts will be established in USA.
Federal judicial system has been established under federal laws and judicial system of states under states laws. Under the jurisdiction of federal courts all those offences, which are considered to be cognizable in, united state of America. In some matter the federal court and the state courts concurrent jurisdiction. In that case, the person concerned has to choose, either the federal court or state courts.
Importance of federal judiciary: It has two dimensions: - Firstly: In a Federal form of govt-there is need of such power which can adjudicate the di9sputes arising between the Federation and unit. Secondary: American constitutional system follows the principle of separation of power. So if any conflict arises out, between the govt and the executive, it will come within the area of federal judiciary. American judiciary is divided into parts:- (1) Federal Judiciary (2) State Judiciary.
Federal Judiciary:
(1) District Court: District court is the lowest of Federal judiciary. In every state of the federation, there must be at least one dis-court they are 90 in member (Big state divided into provinces) these court have original jurisdiction. They have no right to hear any appeal. These courts have both civil & criminal jurisdiction. The member of the judge’s increase in this court with the excessive workload.
(2) The circuit Court of appeal: this court has been established above the district court, which is below the Supreme Court. The entire area of USA has been decided into 10 circuits and each circuit, a revisional circuit court has been established. It is judges will have to four different areas and this is reasons for that they are called circuit courts. This court has no original jurisdiction. They have only right to hear appeal. The President on the advice of the senate appoints the judges of district court & circuit court.
(3) Supreme court : ON the apex of the entire judicial system of United state of America id=s its supreme court. This court can be said to be the most respectable and established one in whole of the world. Originally this court was established in the well street of New York City.
(4) Organization of Supreme Court: The number of its judge’s chance from time to time by congress, presently there is a chief justice & 8 other justices.
· Appointment: the president on the recommended of the senate appoints judges.
· Qualification: Normally famed Lawyers, Legal advisors, Law teachers occupy this post. It is desirable from them to be a politician as well as good citizen.
· Term: Till their lifetime.
· Impeachment: Judges can be removed from there office on the basis of impeachment. Two third majorities both from the house of representative and senate are required.
· Session: Session begins from first Monday of October to till June to the next year.
Jurisdiction:
· Matter related to Ambassadors/high- commissions,
· Matter related to constitutional laws & treaties,
· Matter related to where USA us a party and the other state is another party.
· Maritime cases,
· Dispute arising between citizen of deferent state,
Supreme Court has four kinds of jurisdiction: -a) Original jurisdiction, b) Appellate jurisdiction c) Judicial Review d) Custodian and guardian of the constitution.
Power of judicial review: the right to interpret the constitution can be said , to be the most important right of supreme court. Supreme court decides the the constitutional of state & federal laws upon two issues 1) Whether the legislature has to right to make disputed law 2) The law has been framed on the basis of due process of law or not. Supreme court cans writs.
State Judiciary: Justice of peace: In the states, there are some courts having minimum jurisdiction =. They are called justices of peace or municipal magistrates. Judges are elected by local vote for two years. In same state, they are appointed by the governor, They have right to impose a fine up to 100 dollar.
Intermediate or county court: Over and above the court of justices of peace, different kinds of courts, normally there is one judge, who is elected by the public.
Appellate court: these courts have been established over county courts, they are mainly vested with appellate jurisdiction. These court consist 3 or more Judges.
Supreme court of the state: Each & every state has it’s own Supreme Court. It consists of a chief justice and 5-7 other judges. The courts have the jurisdiction relating to appeal. These courts hear appeal from subordinate courts in this -where question of law is involve also hear the cases in which state is a party. Against the decisions of these courts, there is a provision of appeal to the Federal Supreme court.
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