Writ Petition No. 2813 of 2009

High Court Division of the Supreme Court of Bangladesh

Facts: BLAST and Ain o Salish Kendra (ASK) filed a writ petition challenging Section 1(2) of the Family Court Ordinance, 1984 which bars applicability of the Family Court Ordinance in three hill districts, Rangamati, Khagrachari and Bandarban. These three districts in the Chittagong Hill Tracts are administered under the Chittagong Hill Tracts Regulation, 1900, which was amended by Act No. 38 of 2003, establishing Civil and Criminal Courts in the region. Under the amended Section 8(2) of the Regulation, the Joint District Judge has original jurisdiction in all civil matters except those arising out of family law and other customary laws of the tribal people. Section 8(4) empowers the Mouza Headman and Circle Chief to deal with cases arising out of family laws and other customary laws of a particular community (‘tribe’), but is silent about those who are not indigenous peoples (‘non-tribals’). Section 4(1) and 4(2) of the Family Court Ordinance, 1984 read together establish that an Assistant Judge’s Court shall serve as a Family Court and there shall be as many Family Courts as Assistant Judge’s Courts. There being no Assistant Judge’s Court in the three hill districts, the ‘non-tribal’ people are deprived of access to judicial remedies with respect to family disputes.

Argument: The petitioners argued that by barring applicability of the Ordinance in three Hill Districts, Section 1(2) of the Family Court Ordinance, 1984 is depriving people of reaping the benefit of access to a separate Family Court as enjoyed by the people residing in the other 61 districts of Bangladesh, which constitutes a violation of the fundamental rights to equal treatment under law and non-discrimination, as enshrined in Articles 27 and 31 of the Constitution.

Order: The High Court issued a Rule Nisi on 03.05.2009 on the respondents directing them to show cause as to why Section 2(1) of the Family Courts Ordinance should not be amended and why immediate steps should not be taken for extending the applicability of the Ordinance to the three hill districts.

Laws Cited: Constitution, Articles 27 and 31, The Family Court Ordinance, 1984; The Chittagong Hill Tracts Regulation (Amendment) Act, 2003

Status: Pending hearing