1.

Discuss the rights of a Christian woman to dissolve her marriage in

Bangladesh and India. Or
2. The Christian Law of dissolution of marriage has been reformed in India while
it continues to be discriminatory in Bangladesh- Discuss. State shortly the
reforms suggested by the Law Commission of Bangladesh in this regard. Or
3. Christian law in Bangladesh is generally more gender friendly than other
religious laws except in the case of divorce. - Discuss with reference to
changes made in India regarding the specific issue of divorce and mention the
relevant proposal of the Law Commission of Bangladesh in this regard. Or
4. Discuss the discriminatory provisions related to Christian divorce contained
in the Divorce 1869 applicable in Bangladesh

Answer:
Marriage is considered to be an institution of which God is the author and as such it
is an indissoluble, eternal and lifelong union---so under orthodox law there is no
divorce.
This is strictly followed by the Roman Catholics who do not recognize divorce at
all. Protestants also consider marriage as a holy union but allow dissolution on
certain very specific grounds.
Although, as mentioned earlier. orthodox law does not allow for dissolution of
marriage the Divorce Act of 1869 allows it.
The Divorce Act Of 1869 Is Applicable to all christians. The Christian wife’s rights
of divorce are limited. She cannot present a petition simply on the ground of adultery.
She does not have to include the name of the alleged adulteress.
In order to present a petition for divorce, she has to put forward any one of the
following grounds as mentioned in Section 10 of the Divorce Act 1869:
a. that her husband has exchanged his profession of Christianity for the profession
of some other religion, and gone through a form of marriage with another woman,
or
b. has been guilty of incestuous adultery, or
c. of bigamy with adultery, or
d. of marriage with another woman with adultery, or
e. of rape, sodomy or bestiality, or
f. of adultery coupled with such cruelty as without adultery would have entitled her
to a divorce a mensa et toro, or
g. of adultery coupled with desertion, without reasonable excuse, for two years or
upwards.
Even if a wife fulfills the complicated conditions imposed by Section 10 and obtains
a divorce from the District Court, the decree is subject to confirmation by the High
Court Division as per Section 17 and such confirmation will not be given until the
expiration of six months from the pronouncement of the decree.
So, it is clear that Christians cannot go to the Family Court for dissolution of
marriage. They must go to the HCD or the district court.
Although Christian law is less gender discriminatory than other personal laws, in the
matter of divorce (SECTION 10) there is clear discrimination. A husband can seek
divorce on the ground of simple adultery. On the other hand, a Christian wife seeking
divorce must not only prove adultery, but it must be accompanied by many other
allegations i.e. cruelty, desertion, change of religion etc.

India:
India Reformed The Divorce Act Of 1869 by the Indian Divorce (Amendment) Act
of 2001.
The Act of 2001 Removed discriminatory provisions of the Act of 1869 and enacted
that Any marriage soleninized, whether before or after the commencement of the
Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District
Court either by the husband or the wife, be dissolved on the ground that since the
solemnization of the marriage, the respondent-
(i) has committed adultery; or
(ii) has ceased to be Christian by conversion to another religion; or
(iii) has been incurably of unsound mind for a continuous period of not less than two
years immediately preceding the presentation of the petition; or
(iv) has, for a period of not less than two years immediately preceding the
presentation of the petition, been suffering from a virulent and incurable form of
leprosy; or
(v) has, for a period of not less than two years immediately preceding the
presentation of the petition, been suffering from venereal disease in a communicable
form; or
(vi) has not been heard of as being alive for a period of seven years or more by those
persons who would naturally have heard of the respondent if the respondent had
boen alive; or
(vii) has wilfully refused to consummate the marriage and the marriage has not
therefore been consummated; or
(viii) has failed to comply with a decree for restitution of conjugal rights for a period
of two years or upwards after the passing of the decree against the respondent; or
(ix) has deserted the petitioner for at least two years immediately preceding the
presentation of the petition.
As per section 10(2) of the Indian Act, A wife may also present a petition for the
dissolution of her marriage on the ground that the husband has been guilty of rape,
sodomy or bestiality.

The 2001 Act of India has given the District Court exclusive jurisdiction and it
included a new Section 10A dealing with divorce on mutual grounds etc. It says that
a petition for dissolution of marriage may be presented to the District Court by both
the parties to a marriage together on the ground that they have been living separately
for a period of two years or more, that they have not been able to live together and
they have mutually agreed that the marriage should be dissolved.
As per section 11 of the Indian Divorce (Amendment) Act of 2001, Wife too has to
include the name of the alleged adulteress as co-respondent .
Law Commission Recommendations:
Law Commission in a final report on February 19, 2006, proposed amendment of
the Divorce Act. 1869 on differential rights of the wife and the husband to seek
divorce (Section 10) and on the forum of seeking relief of divorce.
• A discrimination exists in between husband and wife in the provision of
section 10 in respect of seeking divorce on ground of adultery. A husband can
pray for dissolution of his marriage by simply alleging adultery against his
wife but the wife, apart from alleging adultery, is bound to prove such adultery
to have been committed either with cruelty or desertion. Such a disparity in
between the husband and wife requires removal on the rationale of gender
equality and accordingly the Commission recommends substitution of section
10 of the Act by widening the common grounds of divorce for both the
husband and wife.
• Under section 4 of the Act the High Court Division and District Courts have
concurrent jurisdiction over the matter of Christian divorce and a decree
passed by the District Court under section 14 is subject to confirmation by the
High Court Division under section 17. To relieve the Christian women from
the hardships of their getting a final decree for divorce, we think that the
requirement of confirmation by the High Court Division of the decrees for
dissolution of a Christian marriage passed by the District Judge should be
done away with. We, therefore, recommend for omission of section 17 from
the Act and for an amendment of section 4 to confer exclusive jurisdiction
over the matters of this Act to the District Courts and consequently, we
recommend for an amendment of the definition of "courts" in section 3.
• There also appears to be a need for inclusion of a provision enabling the
Christian spouses to get a divorce by mutual consent. Accordingly, the
commission recommended for insertion of a new section being section 10A
providing for dissolution of marriage by mutual consent.
• Section 34 of the Act provides that the husband may claim damages for
adultery in a petition for dissolution of marriage or for judicial separation or
a petition limited to that object, on the ground of his wife having committed
adultery. This provision appears to be a superfluous one and hence, we
recommend that this provision of section 34 be deleted.
 •

0
Discuss alimony pendente lite and permanent alimony under the Divorce Act 1869
Sections 36 to 38 deal with Alimony pendente lite i.e. during pendency of suit and
Permanent alimony etc.
As per Section 36 In any suit under this Act, whether it be instituted by a husband or
a wife, and whether or not she has obtained an order of protection, the wife may
present a petition for alimony pending the suit.
The Court may make such order on the husband for payment to the wife of alimony
pending the suit as it may deem just:
Provided that alimony pending the suit shall in no case exceed one-fifth of the
husband's average net income for the three years next preceding the date of the order,
and shall continue, in case of a decree for dissolution of marriage or of nullity of
marriage, until the decree is made absolute or is confirmed, as the case may be.

Permanent Alimony:
As per section 37 of the Act, The High Court Division or the District Judge may, if
it thinks fit, on any decree absolute declaring a marriage to be dissolved, or on any
decree of judicial separation obtained by the wife, order that the husband shall, to
the satisfaction of the Court, secure to the wife such gross sum of money, or such
annual sum of money for any term not exceeding her own life, as having regard to
her fortune (if any), to the ability of the husband, and to the conduct of the parties,
it thinks reasonable, and for that purpose may cause a proper instrument to be
executed by all necessary parties.
In every such case the Court may make an order on the husband for payment to the
wife of such monthly or weekly sums for her maintenance and support as the Court
may think reasonable:
Provided that if the husband afterwards from any cause becomes unable to make
such payments, it shall be lawful for the Court to discharge or modify the order, or
temporarily to suspend the same as to the whole or any part of the money so ordered
to be paid, and again to revive the same order wholly or in part, as to the Court seems
fit.

2)
(a) Discuss the concept of Judicial Separation under the Divorce Act of 1869
Answer:
In the case of judicial separation the couple is still legally married but are forbidden
to live and cohabit together. So, it is a qualified divorce.
According to section 22 of The Divorce Act, 1869, No decree shall hereafter be made
for a divorce a mensa et toro, but the husband or wife may obtain a decree of judicial
separation, on the ground of adultery, or cruelty, or desertion without reasonable
excuse for two years or upwards, and such decree shall have the effect of a divorce
a mensa et toro under the existing law, and such other legal effect as hereinafter
mentioned.
N.B. mensa et toro refers to a separation where a married couple is legally permitted
to live apart but their marriage is not dissolved, meaning they are still legally married
and cannot remarry.
As per section 23, Application for judicial separation on any one of the grounds
aforesaid may be made by either husband or wife by petition to the District Court or
the High Court Division; and the Court, on being satisfied of the truth of the
statements made in such petition, and that there is no legal ground why the
application should not be granted, may decree judicial separation accordingly.
As per section 26 of the Act, Any husband or wife, upon the application of whose
wife or husband, as the case may be, a decree of judicial separation has been
pronounced, may, at any time thereafter, present a petition to the Court by which the
decree was pronounced, praying for a reversal of such decree, on the ground that it
was obtained in his or her absence, and that there was reasonable excuse for the
alleged desertion, where desertion was the ground of such decree.
(b) Discuss a Christian wife's right to alimony in Bangladesh.
(Done)
0
Some changes introduced by Act of 2023:
1. The new Act included Senior Assistant Judges as family Court Judges [S.4(2)].
In earlier Act, there was only Assistant Judge.

2. The new Act Established the Family Appeallate Courts [S. 18]. Earlier Appeal
used to lie to the Court of District Judge.

3. Amount of Dower for the purposes of appeal increased to 50,000/- from 5000/-
under the new Act [S.19.1.kha]

4. The new Act allows for amendment of plaint and written statement (Sec. 9).
Previously it was a lacunae.

5. Court fees increased from Taka 25 to Taka 200/- under S.25 of the new Act.

6. Section 24 of The Family Courts Ordinance, 1985 provides that a Family Court
shall be deemed to be a District Court for the purposes of the Guardians and Wards
Act, 1890, which is Act VIII of 1890. This means that when matters related to
guardianship and wards are heard by a Family Court, it will exercise the powers
and jurisdiction of a District Court as defined under the Guardians and Wards Act,
but as per the same section Appeal used to lie to the Court of District Judge. On the
other hand, As per section 27 of the New Act of 2023, Appeal shall lie to the
Family Appellate Court instead of court of District Judge in matters related to
guardianship and wards.

7. According to Section 7 of the New Act, provision has been made to use Email as
a means to summon defendant.

8. Under the ordinance, Only pardahnashin lady can be permitted by the Family
Court to be represented by a duly authorised agent, but the New Act included
physically disabled persons along with Pardahnashin lady.

9. Under the new Act Both the Family Court and the Family Appellate Court can
give interim order, but previously only family court could pass interim order.
0
Discuss critically the jurisdiction of Family Courts in Bangladesh, as they apply to
persons belonging to different religions and different sexes, with regard to the
matters referred to in Section 5 of the Family Courts Ordinance, 1985. Mention also
the laws which the Family Court will apply in each case.

Answer:
Section 5 of the Family Court Act 2023 provides that subject to the provisions of
Muslim Family Laws (it means MFLO as per section 2), 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.
A) In case of dissolution of marriage:
--Only Muslim women can resort to Family Court if the grounds mentioned in
section 2 of the Dissolution of Muslim Marriages Act 1939 are fulfilled.
--Muslim husband doesn’t need to go to court for dissolution since his power of
divorce is extrajudicial.
--Neither Hindu Husband nor wife can go to Family Court for dissolution, since there
is no divorce in Classical Hindu Law applicable in Bangladesh. Only right to
separate residence and maintenance for wife is allowed under RSRMA 1946.
--Christian divorce is to be done before District Court or High Court Division under
Divorce Act 1869.

B) Restitution of conjugal life

--Muslim Husband and Wife and Hindu Husband and Wife could resort to Family
court for restitution of conjugal life as per the case of Nelly Jaman v Giasuddin Khan
(1982).
--Christians have to go to District Court or HCD under Divorce Act 1869.

C) Dower:
--Only Muslim women can go to Family Court for Dower.
--there is no concept of dower in Hindu and Christian Law.

D) Maintenance
--Muslim wife can go to Family court -
i. During the subsistence of marriage.
ii. Can claim past maintenance. In Jamila Khatun v Rustom Ali, the (AD) referring
to Section 5 of the family Courts Ordinance, 1985 (FCO) affirmed that the
maintenance, evenwhen became arrear, can be claimed as of right by instituting a
suit under the said Act.
iii. Can claim post divorce maintenance. In Muhammad Hefzur Rahman v. Shamsun
Nahar Begum (15 BLD (1995) 34) relating to the maintenance of divorc’es, the
Court ruled that a Muslim husband’s responsibility to maintain his divorced wife
does not cease with the expiry of the ‘idda. The Court stated that the former husband
is bound to provide his divorced wife with maintenance on a reasonable scale for an
indefinite period, until her status as a divorce changes, that is, if she remarries.
--Hindu wife can claim maintenance during the subsistence of marriage in a suit for
separate residence and maintenance under the Hindu Married Women's Right to
Separate Residence and Maintenance Act 1946. There is no post divorce
maintenance in Hindu law as there is no divorce.
--Christian wife has to resort to District court of HCD under Divorce Act 1869 for
permanent alimony during the suit. But there is confusion as to during the
subsistence of marriage which court to go to. Probably they may come to Family
court under FCA 2023
--Parents from these three religion have to go to magistrate court for Their
maintenance under the Maintenance of Parents Act 2013.

E) Custody and Guardianship:

--All of them, Muslim, Hindu and Christian Husband and Wife can resort to Family
Court under Guardianship and Custody Act 1860

In Krishnapada Talukder vs. Geetasree Talukder [14 (1994) BLD 415] the issue was
the right of a Hindu woman to file a suit in a Family Court for maintenance against
her husband. It was held that: "As per the provisions of the present Ordinance, all
the sections of the 27 section statute have been made available for the litigants who
are Muslim by faith only." ….therefore under Section 5 of the Ordinance only a
Muslim is entitled to bring a suit in the family court mentioned in clauses (a) to (e).
One of the arguments was that the matters mentioned in clauses (b), (d) and (e) of
section 5 of the ordinance apply to all communities , irrespective of their religion but
sub-sections (a) and (c) do not.
In Nirmal Kanti Das vs. Sreemati Biva Rani [14 (1994), The Court held that the FCO
applies to all communities and a Hindu wife is therefore entitled to bring a suit for
maintenance against her husband under the Family Courts Ordinance.
The issue was finally settled and confusions removed in the case of Pochon Rikssi
Das vs. Khuku Rani Dasi and others [50 (1998) DLR (HCD) 47] by a special bench
of the High Court Division which held that:
....the Family Court Ordinance 1985 is a self contained law that provides special
forum for speedy disposal of disputes enumerated in section 5. Simply for the use of
the words "subject to the provisions of Muslim Family Laws Ordinance 1981", in
section 5, the FCO is not meant for the use of the members of the Muslim
Community only. The Family Courts Ordinance is applicable to all citizens of
Bangladesh irrespective of their faith or religion. The Family Court while deciding
the dispute shall follow the personal laws of the respective parties."

0
ADR in Family Court
According to Section 11(1) of the Family Court Act 2023, If a written statement is
filed, the Family Court shall fix a date not exceeding 30 (thirty) days for the pre-trial
hearing of the case.
As per Sub section (2), On the date fixed for the pre-trial hearing, the court shall
examine the plaint, written statement and documents submitted by the parties and, if
it considers it appropriate, shall also hear the parties' arguments.
Sub section (3) provides that the court shall, during the pre-trial hearing, determine
the points at issue between the parties and, if possible, attempt to reach a compromise
or reconciliation between the parties.
As per Sub section (4), If it is not possible to reach a compromise or reconciliation
under sub-section (3), the court shall frame the issues in the suit and fix a date not
exceeding 30 (thirty) days for taking evidence.

According to Section 14 of the Act, After the close of evidence of all parties, the
Family Court shall make another effort to effect a compromise or reconciliation
between the parties.
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.
According to Section 15 of the Act, Where a dispute is settled by compromise or
reconciliation, the Court shall pass a decree or give decision in the suit in terms of
the compromise or conciliation agreed to between the parties.

0
Family Court in India:
In India, the Family Courts Act of 1984 is followed.
1) Appointment of Judges:
As per section 4(3), A person shall not be qualified for appointment as a Judge unless
he- (a) has for at least seven years held a judicial office in India or the office of a
Member of a Tribunal or any post under the Union or a State requiring special
knowledge of law; or
(b) has for at least seven years been an advocate of a High Court or of two or more
such Courts in succession; or
(c) possesses such other qualifications as the Central Government may, with the
concurrence of the Chief Justice of India, prescribe.
(4) In selecting persons for appointment as Judges,- (a) every endeavour shall be
made to ensure that persons committed to the need to protect and preserve the
institution of marriage and to promote the welfare of children and qualified by reason
of their experience and expertise to promote the settlement of disputes by
conciliation and counselling are selected; and
(b) preference shall be given to women.
(5) No person shall be appointed as, or hold the office of, a Judge of a Family Court
after he has attained the age of sixty-two years.

2) Jurisdiction under section 7 of the Act is broader than that of Bangladesh.

It says -(1) Subject to the other provisions of this Act, a Family Court shall-" (a) have
and exercise all the jurisdiction exercisable by any district court or any subordinate
civil court under any law for the time being in force in respect of suits and
proceedings of the nature referred to in the explanation; and
Explanation.-
The suits and proceedings referred to in this sub-section are suits and proceedings of
the following nature, namely:-
(a) a suit or proceeding between the parties to a marriage for a decree of nullity of
marriage (declaring the marriage to be null and void or, as the case may be, annulling
the marriage) or restitution of conjugal rights or judicial separation or dissolution of
marriage:
(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the
matrimonial status of any person;
(c) a suit or proceeding between the parties to a marriage with respect to the property
of the parties or of either of them;
(d) a suit or proceeding for an order or injunction in circumstances arising out of a
marital relationship;
(e) a suit or proceeding for a declaration as to the legitimacy of any person;
(f) a suit or proceeding for maintenance;
(g) a suit or proceeding in relation to the guardianship of the person or the custody
of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family Court shall also have and
exercise-(a) the jurisdiction exercisable by a Magistrate of the First Class under
Chapter IX (relating to order for maintenance of wife, children and parents) of the
Code of Criminal Procedure, 1973 (2 of 1974); and such other jurisdiction as may
be conferred on it by any other enactment.

Family Court in Pakistan:

In Pakistan the Pakistan Family Courts Act of 1964 applies.
1) Qualifications of Judge- As per Section 4 of the Act, No person shall be appointed
as a Judge of a Family Court unless he is or has been or is qualified to be appointed
as a District Judge, an Additional District Judge, a Civil Judge or a Qazi appointed
under the Dastur-ul- Amal Diwani, Riasat Kalat.

2) Jurisdiction:
→→ As per Section 5 of the Act, Subject to the provisions of the Muslim Family
Laws Ordinance, 1961, and the Conciliation Courts Ordinance, 1961, the Family
Courts shall have exclusive jurisdiction to entertain, hear and adjudicate upon
matters specified in the Part I of the Schedule.
SCHEDULE PART I:
1. Dissolution of marriage [including Khula].
2. Dower.
3. Maintenance.
4. Restitution of conjugal rights.
5. Custody of children, and the visitation righ parents to meet them.
6. Guardianship.
6A. Matters pertaining to Return of Child under the Hague Convention on Civil
Aspects of International Child Abduction, 1980.
7. Jactitation of marriage.
8. Dowry.
9. The personal property and belongings of a wife and a child living with his mother.
10. Any other matter arising out of the Nikahnama.

→→ Section 5(2) says that Notwithstanding anything contained in the Code of

Criminal Procedure, 1898 (Act V of 1898), the Family Court shall have jurisdiction
to try the offences specified in Part II of the Schedule, where one of the spouses is
victim of an offence committed by the other.

Schedule PART II:

Offences and aid and abetment thereof under sections 337A(i), 337F(i), 341, 342,
343, 344, 345, 346, 352, and 509 of the Pakistan Penal Code (Act XLV of 1860).