Every one has right to access formal state justice. Equal access to justice is one of our most basic rights. However, many people are denied or cannot access the formal system on an equal level with others for some reasons. Dispute resolution is a process that implies the causes of conflict as well as the resolution of such conflicts. Conflict is a regular and continuous process in our day-lo-day life. Conflict can be resolved or settled, but once resolved, new, conflicts may arise. It is also a continuous process – one is resolved and another one emerges. Conflict cannot be eliminated forever from our lives, but it can be minimized. Conflict on its practical mom means, a conflict may not become a dispute if it is not communicated to someone in the form of a perceived incompatibility or a contested claim. Law is more than norms it is reflection of the aspiration through which a notion passes. With the changing needs of society its legal system, changes. If it is does not slowly becomes a dead and unless system. Mediation, negotiation and conciliation in the Family courts are recommended on a careful problems, there causes and potential solution under the Alternative Dispute Resolution of the Family Matters. In Bangladesh several Non-Government organization e.g. Madaripur legal Aid Association, Action Aid, BLAST, Ain O Salish Kendro, Assistant Slum Dwellers and Family Court of Bangladesh bring a relief of the parties. But unlike mediation, negotiation a conciliation in the out side of the court or in the Family Courts the disputes by salish do not deny in force behind them and as such binding upon either party. There fore salish remain dormant and can be revived at any time where as mediation, negotiation and conciliation of the Alternative Dispute Resolution in the Family Matters.
The purposes of dispute resolution Of ADR in Family Issues1:
The ultimate objectives, of dispute resolution are to produce amicable settlement between the conflicting parties. However the purposes can be epitomized as the following heads:
To diagnose the root causes of disputes;
To transform actual and potential disputes into peaceful and Positive processes;
To change violent behavior and hostile attitudes.
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To create a lively, congenial environment
Modes of dispute resolution ADR Family Matters2:
Generally we can initiate dispute resolution in two ways:
By peaceful means,
By use of form.
The fast implies using alternative Wave such as dialogue, negotiation or third party intervention instead of using force or aggressive a measures to resolve a dispute.
The second implies that a powerful third party uses forces, not necessarily physical force, but aggressive persuasion to create social or structural pressure and influence on the parties to resolve existing disputes. The third party might have some interest, but not on the dispute itself. The third party works as a pressure factor and may not be neutral. However it is not uncommon for disputes resolved this way to reemerge in the future.
Traditional disputes resolution mechanism ADR3:
In general Tradition Dispute Resolution Mechanism implies the existing process of resolving dispute in our society. There are two diverse processes of dispute resolution. They are—
Sometimes problems arise due to community’s indifference
Sometimes leaders make decision by use of power and influence
Legal procedure ADR
Legal procedures are a process of dispute resolution that takes place in the courts of law. Basically, people go in the legal authority to obtain a favorable verdict but also to have a feeling of victory over the other, which may in the minds of the victors exceed the actual gains made out of the resolution of the problem or dispute. It is a win-lose game. This processoften holds disputes, and leaves permanent scars; on the mind of the losing parry rather than resolving the problem, and it may end in making the disputes endemic and long lasting. When the losing party gets a chance, they look for revenge.4
Difficulties encountered in legal procedure5:
I have undertaken the venture of writing this article upon realizing the ever ending sufferings and misery of the disputants and litigants especially faced in relation to commercial (domestic and international), family and land law disputes, in formal courts, Hundreds of thousands of cases are either completely awaiting to be heard or partially heard and left with the respective courts for verdict for years or years, The most common reasons are: unawareness of the litigants themselves, incompetence and ill intention of the law interpreters, legal representatives, bureaucrats, and in some cases the law-maker themselves.
All the governments, came into power till to-date, have been aware of the above facts and figures, but took either none of a very limited interest in resolving those mountainous problems suffered by the victim-litigants in the judicial process.
The problem in legal procedure are-
Very time consuming
Requires a lot of money and energy.
Loss of property
Sometimes stimulates further conflict
No reconciliation process.
Chances of deception
Dependency on lawyers
Lack of knowledge in legal Procedure
People Denied access to Justice6:
Everyone has a right to access formal state justice. Equal access to justice is one of our most basic rights. However, many people are denied or cannot access the formal system on an equal level with others for reasons including:
Geographical distance from a court;
Costs involved in taking a case to court;
Inability to secure adequate legal representation;
Backlog in cases at the courts which lead to long delays and thus, time away from home and work;
Lack of information or exposure to the law;
Social taboos and stigma surrounding certain crimes and social alienation which results when cases are publicized;
Trepidation and few of the complexity of the criminal justice system and of its agents;
Non-availability of translators and lack of communication resulting from language differences;
Uncertainty about mechanisms of the justice machinery which are seen as alien;
Blatant and subtle discrimination against women, minorities and the poor amongst agents of the justice system.
According to a study at StanfordUniversity (Arrow et al., 1995) there are three categories of barriers to resolving conflicts:
Tactical and strategic barriers; these stem from the parties’ efforts to maximize short or long term gains,
Psychological harriers; these stem from differences in social identity, needs, fear, interpretation, values, and perceptions of one Mother.
Organizational, institutional and structural barriers; these can disrupt the transfer of information, and prevent leaders from reaching decisions that we in the interests of the parties in dispute.
Alternative Dispute Resolution (ADR)7:
Alternative Dispute Resolution refers to the means of writing disputes without going through legal procedures. Through ADR settlement of disputes can be done in many formal and informal ways but here ADR emphasis is mainly on the settlement of disputes by local community initiatives. It is art age-old tradition of society through which disputes are resolved amicably and which concerned parties accept. Normally authority does not challenge it. It is not institutionalized, but both the community members and the, disputants accept it. There are different ways to resolve disputes. Some are resolved formally, others informally, and some are resolved as time passes by.
Mr. Justice Mustafa Kamal, Former Chief Justice of Bangladesh described ADR in a workshop, organized by the British Council on 7thand 8thMarch 2004, as: The newness of ADR is the purpose behind its adoption. The purpose of alternative dispute resolution is not a substitute consensual disposal for adversarial disposal or to abolish or discourage informal mediation or arbitration outside the courts, but to make alternative dispute resolution a part and parcel of the formal legal system, preserving the trial court’s statutory authority and jurisdiction to try the case should ADR fail.
Some may view “ADR as part of their profession while others may conclude that ADR, particularly mediation, as a new profession, some may want ADR to be BDR (Better Dispute Resolution). Enhanced Dispute Resolution (EDR), Judicially Assisted Dispute Resolution (JADR) or IDR (Innovative Dispute Resolution), or, for convenience, appropriate dispute resolution”, as suggested by A J Pirie in his publication “Alternative Resolution: Skills, Science wed The Law”.
Historical background of ADR8:
ADR is nothing new. This informal quasi judiciary system is as old civilization. Different forms of ADR have been in existence for thousands of years. The firm Arbitration (a form of ADR) Act was passedin 1698 under William III. This was an Act for rendering the award of arbitrators more effectual in all cases for the final determination of controversies referred to them by merchants and traders, or others. In 1854, Common Law Procedure Art expressly empowered courts to remit an award for reconsideration by the arbitrators. It aim empowered courts to stay (stop) an action in court if the parties had agreed m take the dispute to arbitration. Effectively, the Arbitration Act 1440 gifted a number of modem steps to be taken to agree disputes between the parties: the parties appoint arbitrators court may also appoint arbitrators if the parties fail to do so; decide the disputes informally, make an award, or settle the dispute by mediation, compromise or any other mama; court pass a decree in tams of the award d found the decision was made properly, and Arbitration Tribunal shall be competent m appoint expert or legal advisor to submit report to at an specified question or assessor for assisting it on technical matters.
Later in Arbitration Act 1950, there was a consolidation of the Arbitration Aces 1889 and 1934. It included the power of a court to stay actions where there was an applicable arbitration agreement. In addition the Arbitration An 1975 gave effect to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
In 1976 Professor frank Sander said in his book Varieties of Dispute Processing’, in future, not simply a courthouse but a dispute resolution centre or a multi-door courthouse where disputants would be screened and channeled m a variety of dispute resolution processes such an mediation, arbitration, fact-finding malpractice screening panel, superior court, or an ombudsman.
In 1976 in Bangladesh, Gram Adalat law was passed under the auspices of Union Parishad to settle minor criminal and civil law suits. The law house bestowed an UP Chairman or Gram Adalat Chairman with power of a third claw magistrate. The court is comprised of 5 members including the Chairman, 2 General members and 2 members selected by the complainant and defender. The judgment of the court will be validated with unanimous support or by majority of 4:1. No one cam, raise any question regarding the legality o the verdict.
The Arbitration Act 1979 dealt principally with regulating the courts’ powers to review arbitration awards and to determine any question of law arising in the course of arbitration.
In 1980, the then Government of Bangladesh had passed a bill for introducing the office of an ombudsman to meet a constitutional binding; following the same last year, the Government has adopted a policy of introducing ombudsman sector-wise and has already set up a Tax Ombudsman.
In 1981, considering expenses and delays in disposal of cases through the legal system of India. a judgment was made by the Supreme Court of India in the case ‘Guru Nanak Foundation vs. We Rattan Singh & Sons, AIR 1481 SC 2075? saying, Interminable, time-consuming, complex and expensive court procedures impelled jurists to search for an alternative forum, leas formal, more effective and seedy for resolution of disputes avoiding procedural claptrap and this led them to …’
In 1982, Richard Abel summarizes the political ambiguity that imbues the history of ADR in The Politics of Informal Justice’: Yet if the goals of informal justice arc contradictory, and if it is incapable of realizing them because of contradictions inherent in advanced capitalism, in formalism should not simplistically be repudiated as merely an evil to be resisted, or be dismissed as a marginal phenomenon that can safely be ignored. It is advocated by reformers and embraced by disputants precisely because it expresses values that deservedly elicit broad allegiance: the preference for harmony over conflict, for mechanisms that offer equal access to the many rather than unequal privilege to the few, that operate quickly and cheaply, that permit all citizens to participate in decision making rather than limiting authority to “Professionals; that are familiar rather than esoteric, and that strive for and achieve substantive justice rather than frustrating it in the name of form.
In 1982, Former Chief Justice W. Burger of the United States Supreme Court asked, Is not there a Better Way? In the annual report on the stale of the judiciary to the American Bar Association. Chief Justice Burger’s plea to the legal profession to consider their traditional role as healers of human conflict and utilize more fully the negotiation and arbitration processes followed on the heels of various initiatives in the United States examining alternatives to court adjudication.
The Characteristics of ADR Approaches9:
Although the characteristics of negotiated settlement, conciliation, mediation, arbitration, and other forms of community justice vary, all share a few common elements of distinction from the formal judicial structure. Them elements permit them to address development objectives in a manner different from judicial system;
Most fundamentally, ADR processes are less formal than judicial processes. In most cases, the rules of procedure are, flexible, without formal pleadings, extensive written documentation, or rules of evidence. This informality is appealing and important for increasing access to dispute resolution for parts of the population who may be intimidated by or unable to participate in more formal systems It is also important for reducing the delay and cost of dispute resolution. Most systems operate without formal representation.
2) Application of Equity
Equally important ADR programs are instruments for the application of equity rather than the rule of law. Each caw is decided by a third party, Or negotiated between disputants themselves, based on principles and terms that seem equitable in the particular case, rather than on uniformly applied legal standards. ADR systems cannot be expected to establish legal precedent or implement changes in legal and social norms. ADR systems tend to achieve efficient settlements at the expense of consistent mid uniform justice.
In societies where large pails of the population do not receive any real measure of justice under the formal legal system, the drawbacks of an informal approach to justice may not cause significant concern. Furthermore, the overall system of justice can mitigate the problems by ensuring that disputants have recourse to formal legal protections if the result of the informal system is unfair, and by monitoring the outcomes of the informal system to test for consistency and fairness.
3) Direct Participation and Communication between Disputants
Other characteristics of ADR systems include mote direct participation by the disputants in the process and in designing settlements, mom direct dialogue and opportunity for reconciliation between disputants, potentially higher levels of confidentiality since public records are not typically kept, more flexibility in designing creative settlements, less power to subpoena information, and leas direct power of enforcement.
The impact of these characteristics is not clear, even in the United States where ADR systems have been used and studied mom extensively than in most developing countries, many argue, however, that compliance and satisfaction with negotiated and mediated settlements exceed those measures for court-ordered decisions. The participation of disputants in the settlement decision, the opportunity for reconciliation, and the flexibility in settlement design went to be important factors in the higher reported rates of compliance and satisfaction.
Mechanisms of ADR
Negotiation, mediation and arbitration arc the most common features of ADR techniques in Bangladesh. Let discuss the three important ways of dispute resolution.
Negotiation is the process whereby the parties within the dispute Beck to settle or resolve the dispute. The negotiation process provides the parties or disputants and opportunity to exchange ideas, identity the irritant points of differences, find a solution, and get commitment from each other to reach an agreement. Bargaining is a common feature of the negotiation process. This feature makes it different from mediation and arbitration.
In negotiation, a third part may or may not be involved. When a third party u not involved in the negotiation process, someone usually breaks the ice and brings the parties to the negotiation table and then withdraws from the negotiation process.
Webster’s Dictionary defines negotiation as “mutual decision and arrangement of the terms of a transaction or agreement”. Fisher et al., in Getting to Yea (1991), define negotiation as: “a basic meant of getting what you want from others. It is back and forth communication designed to teach an agreement when you and the other side have some interest that are shared and others that are opposed.”
Goldberg et al., in Dispute Resolution (1992), define negotiation as: communication for the purpose of persuasion.They are many more ways of defining negotiation, but the last definition is a very broad me and is wide in scope: two or more parties communicate for the purpose of influencing the others decision.
Negotiation is possible
where parties must cooperate to meet goals
parties can influence each other to act in ways that provide mutual benefit or avoidance of harm
parties ate affected by time constraints
parties can identify and agree on issues
interests not entirely incompatible
external constraints (repute, cost, risk of adversarial decision encourage ADR)
The Negotiation works when:
a) The parties are willing to cooperate and communicate to meet their goals
b) The parties can mutually benefit or avoid harm by influencing each other
c) The parties know that they have time constrain
d) The parties’ realize that any other procedure will not produce desired outcome
e) The parties ran identify on what issues require to be sorted out
f) The parties also agree that their interest am not incompatible to each other
g) The patties knew that it is preferable to participate in private cooperative process rather than go through severe external constraints like loss of reputation, excessive cost, and possibility of adversarial decision
Mediation is in simply anextension of the negotiation process. Mediation involves an independent third party helping disputing parties to resolve their dispute. The disgusts not the mediator decide the terms of the agreement. Mediators me individuals experienced in the negotiation process who bring disputing parties together and make attempts to work out a settlement or agreement that both parties can accept or reject. Mediation is used for a wide gamut of case types, including interpersonal, local business and national issues.
Mediation in generally understood as a third party intervention, between conflicting parties to promote reconciliation, settlement or compromise.
Positive Results of Mediation
The positive aspects of mediation are:
It helps to identify the true issues of the dispute.
It resolves some or all of the issues.
Agreement can be reached on all or part of the issues of the disputes.
The needs and interests of the parties are met.
The parties reach an understanding of the true cause of the dispute.
The parties reach an understanding of each other’s needs and interest.
It provides the possibility of preserving the relationship.
An improved relationship may result.
Next to mediation and negotiation, arbitration is another dispute resolution tool. In arbitration systems, the court authorizes a neutral person or it third party to resolve the dispute at the place of occurrence.
In arbitration an independent, impartial thud party hears both sides in a dispute and makes a decision to resolve it. In most came, the arbitrator’s decision is legally binding on both sides, so it is not possible to go to court if you are unhappy with the decision.
Arbitration is in many ways an alternative form of court with procedural rules which govern issues such sit disclosure of documents and evidence. But arbitration is private rather than public. Hearings am less formal than court hearings, and mine forms of arbitration do not involve hearings but are decided on the basis of documents only.
Adjudication involves an independent third party considering the claims of both sides and making a decision. The adjudicator is usually an expert in the subject matter in dispute. Adjudicators ate not bound by the rules of litigation or arbitration. Their decisions an often interim ones, they can be finalized using arbitration or another process. Adjudication decisions are usually binding on both parties by prior agreement.
Adjudication is also sometimes used to describe a non-specific alternative dispute resolution process in which a third party makes a decision as to the beat way resolve the dispute. In this sense, ombudsmen, arbitrators and judge are all types of adjudicators.
Necessity of Alternative Dispute Resolution (ADR)13:
The ADR system is yet to be familiarized among the judges and lawyers and in particular among the disputants and litigants in Bangladesh. The reasons, why disputants should consider ADR, are described by Dr Belal Hussain Joy in his book. Law Management Skills (2005)’as:
gives a wider range of settlement solution comparing with formal litigations;
Makes substantial contribution to a mom efficient use of judicial resources;
Saves time arid money both, of both the parties,
Saves judicial time, accelerating the disposal of and reducing the backlog of Cases;
Preserves the trial court’s statutory Authority and jurisdiction to try the case should ADR fail
ADR is non-binding, the arbitrators or mediators take on the rate of investigator as well as impartial judge;
ADR proceedings are confidential, and not Admissible At the litigation.
ADR procedure can support not only the legal objectives, but also support other development objectives, such as economic and social objectives, by facilitating the resolution of disputes that are impeding progress of these objectives.
Cost effective or no cost at all
Requires less time
Creates social binding
Reconciliation between disputants
Positive outcome helps build confidence in the community
Positive outcome encourage others to resolve disputes in the community
Practice of ADR in Bangladesh14:
Societies world-over have long used non-judicial, indigenous methods to resolve disputes, in Bangladesh, dispute resolution outside of courts us not new. What is new is the extensive promotion and proliferation of ADR models and its increased uses.
In the traditional system, disputes are resolved within the village. However depending on the intensity of the dispute or gravity of the situation, neighboring villages are also sometimes involved.
During the British period, in 1870, the Panchayat system was introduced to manage and rule the area for its collection of revenue, The Panchayat system was used to resolve minor disputes within their area, and the major disputes were. Forwarded for legal procedures, in 1919, the Bengal Villages Self Government Act was introduced and Union Courts were set up to resolve disputes locally.
Later, the government established the Rin Shaliahi Board to keep peasants free from the Mahazons and the moneylenders and aim to avoid clashes .Later the Family Court Ordinance of 1 961 and the Village Court Act of 1976 were introduced and authority was vested on the Chairman of Union Parishad to try petty local case and small crimes committed in their areas and take consensual decisions. These were later strengthened in 1985 with additional power to cover women and children’s rights. The village court consists of U.P. chairman, members and representatives from concerned parties. Under the Village Court Act of 1976, the village court has try disputes over property valued not exceeding taka 5,000. The village court has also power to summon a person to stand as a witness and can impose a fine of up to taka 500 on contempt charges. The village court provides easy access to the local people without any obstacle and allows them to defend their position without any outside assistance of Lawyer.
The Family Court Ordinance 1985 had given jurisdiction to the trial Judge to effect reconciliation between the parties both before and after trial. And the ordinance dealt with divorce, restitution of conjugal rights, dower, maintenance and custody of children. The Ordinance deals the concerning issues like (I) when the written statement in filed, the family court shall fix a date ordinarily of not more than thirty days for a pre-trial hearing of the suit (ii) after the close of evidence of all parties, the family court shall make another effort to effect a compromise or reconciliation between the parties and (iii) where a dispute is settled by compromise or conciliation, the Court shall paw a decree or give decision in the suit in terms of the compromise or conciliation agreed to between the parties. Section 10 and 13 of the Family Court Ordinance are notable provisions that call for mediation and arbitration by the court. Section 6, 7 and 9 of the Muslim Family Law Ordinance also talk about Arbitration Council in Union Parishad.
The Salish Ain 2001 or the Arbitration Act 2001, a new Law provides for International Commercial Arbitration between: a citizen of Bangladesh or an organization of Bangladesh versus a foreigner, foreign resident, foreign company, foreign controlled company or firm and a government of foreign state. This provision is proved in provided to the arbitration between the citizens or organizations of Bangladesh and for of an award of arbitration as a decree of the court.
The law also extends for execution of a foreign arbitration award subject to certain conditions by a court under the provisions of the Code of Civil Procedure for execution of a decree. The parties concern will appoint their arbitrators. In case, the party tail to appoint his arbitrator for the International commercial arbitration, the Chief Justice or on his behalf any other Judge of the Supreme Court nominated by the Chief Justice shall appoint such arbitrator. Effectively, The Arbitration Act 2001 opened up the door for Bangladesh as a place for settlement of international commercial and investment disputes by arbitration.
Mr. Justice K M Hasan, formerly the Chief Justice of Bangladesh said in his speech Introducing ADR in Bangladesh: Practical Mode, National Workshop on “Alternative Dispute Resolution: In Quest of a New Dimension in Civil Justice Delivery System in Bangladesh on 31 October 2002 ‘ADR is not meant to be a replacement for adjudication but a complementary mechanism to reduce the work load or pressure on the courts”
The Code of Civil Procedure (Amendment Act 2003 was introduced through sections 8lA and 89B, especially mediation or arbitration more effective in all kinds of non-family litigations At any time after a written statement is filed, if all the contesting parties are in attendance in the court in person or by their respective lawyers, (a) the court may mediate the dispute (b) or refer the dispute to the engaged lawyers of the parties (c) or to the patties themselves where no lawyer has been engaged (d) or to a mediator from a panel prepared by the District Judge in consultation with the President of the District Bar Association…..the civil courts started mediation in non-family disputes since the 1st July,2003. As of 31st July 2004, 3,432 non-family litigations have been disposed of by mediation-Also the Code of Civil procedure (Amendment) Act 2006 was introduced through sections 89C that mediation in the appeal.
In 2003, Chief Justice Mainur Reza Chowdhury confirmed that some 1. 50,000 cases were than pending in both divisions of the Supreme Court for disposal. Only 2600 of the case were disposed of in Match and 3000 new cases have already been filed. As the Chief Justice he called on all to practice ADR mechanism for settlement of case outside the court to mitigate the sufferings of the people and reduce the number of pending cases.
The Bangladesh Parliament also passed a law under the title The Conciliation of Disputes (Municipal Areas) Board Act 2004? to make sure that disputants will have opportunity of resolving their disputes, differences and conflicts with the help of their municipal representatives without going to the formal courts.
In June 2005, to comply with the Article 77 of the Constitution of the People’s Republic of Bangladesh, Mr. Saifur Rahmain, Finance Minister of the Govt.of Bangladesh, in his budget for the year 2005 -2006 announced the decision to establish the office of the Tax Ombudsman in Bangladesh. Ombudsman is also a system of ADR, and the Tax Ombudsmen will investigate citizen’s (taxpayer) complaints against government services.
In August 2005, to help materialize the Arbitration Act 2001, the ‘Bangladesh Council of Arbitration (BCA)’ formulated new Rules of Arbitration under the auspices of the FBCCI, and set up a modern and efficient Arbitration Centre, Mr. Abdul Awal Mintoo, the Chairperson of the Bangladesh Council of Arbitration hoped that BCA would have the best possible interest of both the national and international business community in settling their commercial disputes.
Apart form the: legal swathes, rural Bangladesh has a long tradition of doing shalish in family matters or in minor disputes. Local leaders provide an opportunity for resolving local disputes. Women and the poor particularly, favor this option of conciliation through shalish. They feel comfortable about easy access to the resolution process and are not required to pay money for it. Since the local Shalish is in a relatively better portion m know the real nature of the conflict, the chances of exaggeration of issues are significantly less. Shalish is used in settling as to 60 to 70% of local disputes. Shalish is still the most effective procedure for quick and useful legal redress. Shalish provides a win-win situation for both the parties and entails less suffering and cost. Shalish as an informal mode should not be perceived as graits.
Model of Mediation: (Madaripur Legal aid Association)15
Let us consider the experiment with accessible justice undertaken in Bangladesh by the Madaripur Legal Aid Association (MLM) for over a decade. The successes of the Madaripur Model of Mediation (MMW developed by the MLAA has led many legal aid NGO in Bangladesh to adapt the Madaripur model or apply its principles in work with the poor.
In common with many other around the world, the legal system of Bangladesh is extremely formal, complex, urban band, time consuming and financially draining. Consequently, for many Bangladeshis, particularly the poor, illiterate and disadvantaged living in rural areas, the inability m enforce their own rights through the formal justice system has ensured that many suffer injustice in silence. Conversely, the level of community awareness of legal right and how they might be enforced is extremely limited particularly in rural areas. However, an auxiliary to the formal system exists in some countries in the South Asia region including Bangladesh.
Shalish is an age-old, traditionally based system of mediation and dispute resolution in rural Bangladesh in which disputants. Community members, and village elders gather locally m mediate a conflict and arrive at a resolution agreeable to all involved parties. Historically, village elders and elites along with men of high standing in the community were voluntary thud-party mediators of local disputes. Over time, the authority to conduct shaliah was transferred to local government bodies such as the Union Council or Union Parishad.
Originally, shalish was an effective means of resolving local disputes in an amicable, cost-effective manner whereby fractured relationships were restored.
However, gradually the shalish system was subject m exploitation at the hands of the powerful elite who used their positions to enforce discriminatory practice & to maintain the status quo and local patronage system. Shalish mediators or Shalishkars imposed decisions rather than negotiated agreements between disputants and local communities lost confidence in the Shalish system and declined to take their grievance to the body.
People were subsequently left with two options using the expensive and lime-consuming courts or m putting up with their grievance.
While the ideal was still being able to take their cases to court when they would be assured equality before the law, the challenge was to develop non – formal locally accessible mechanisms in support of the courts where international principles of equality, fairness and non-discrimination would be upheld
Finding a solution16:
The Madaripur Legal Aid Association was established by a group of volunteers from Madaripur in 1978 to provide legal aid to the rural poor and disadvantaged people who were otherwise unable to access the formal System of justice to enforce their rights for reasons of lack of resources and legal representation. While providing legal aid, the organization, became aware that provision of such service had a limited impact in ensuring Justice for the poor. In seeking a more sustainable and cost-effective approach. the organization shifted focus from legal assistance to the development of ADR mechanisms that would assist the poor and those most vulnerable to abuse and exploitation to secure justice for themselves, Rather than import and impose a new model, the volunteers agreed to revitalize, develop and reform the traditional mechanism of shalish based on the principles of fairness, equality and reform the traditional mechanism of shalish based on the principles of fairness, equality and non- discrimination in accordance with international human rights standards and voluntary service.
Implementing the Solution17:
In order to make shalish a success, rural people had to be convinced of the value and effectiveness of a revitalized shallish model. To work in a concentrated and intensive manner with local communities, Madaripur and Shariatpur Districts as well as a pert of Gopalganj District were selected focus areas. In utilizing local people, MLM gained the confidence of Communities by encouraging local contact persons to disseminate information on mediation and a viable auxiliary to the court system and through the gradual formation of locally based mediation committees whom members attended courses on human tights and the law. Given the reality that women were subject to greater social and economic injustice in rural areas than men, the selection of the traditionally male-dominated shalish changed over time with the preferred selection of women taking on a heightened importance.
All members of local mediation committees are volunteers. They are net paid by the organization for their services as mediators. Mediation committees exist at the two lowest local levels of local government administration:
All village level, there are 450 Mediation Committees. Each committee is made up of seven to ten members with a total of 1,164 women village-level members and 3,281 male village-level timbers. At the second level of union (in which one union comprises up to twenty villages), there are nine meditation committees each with a membership of between eight to fifteen members each. A representative of each union committee is a member of a central or apex union committee. There are 50 apex union committees with a total membership of 658 persons including Mediation Workers.
An MLAA appointed Mediation Worker provides the necessary administrative and technical Support to the union mediation committees. They are responsible to:
Receive applications for mediation
Send letters to the involved parties
arrange mediation sessions
Supervise mediation sessions
Follow-up and monitor the solution agreed at and report to head office.
At the Thana level (representing between five to fifteen unions), it thana Mediation Supervisor is responsible to support and supervise all union Mediation Workers. Thana-level Mediation Supervisors work with the head office-based Mediation Coordinator to ensure consistency in application of mediation support. An MLAA monitoring, evaluation and research cell maintains updated information on mediation procedures and data on sessions and outcomes. To date, approximately 50,000 disputes have been resolved successfully through local level mediation in these three districts since 1978.
Women disputants approached the MIAA for assistance to resolve conflict of which:
45 % were about dowry
28 % were about family matters such as marriage and divorce, household maintenance or spousal disagreement
10 % dealt with minor assault
5 % revolved around land ownership and rights claims
5 % involved dispute over finances
3 %focused on community-level disputes
2% focused on a second marriage of husbands
With a view to ensuring the transparency, accountability and efficiency of mediation activists, the MLAA devised a system of supervision, monitoring and evaluation under a monitoring and evaluation cell. The cell operates at two specific levels.
-Monitoring through random sample review of mediation workers and supervisors monthly activity reports.
-Specific monitoring and evaluation of committees recognized an requiring additional support and assistance. The cell is required to produce a report to management on the performance of the committee for further action.
The whole procedure works like this:
Mediation Workers send monthly reports on there respective mediation committee to Thana-level Supervisors.
Thana-level Supervisors review and evaluate the reports of all Mediation Workers and submit a report to the Mediation Coordinator.
The Mediation Coordinator monitors the activities of all mediation committees through the Supervisors reports and sends a compilation report and sends a compilation report to the Chief Coordinator.
The Chief Coordinator in responsible to identify any problems or weakness in the work of the mediation committees and when support provided by Mediation Workers or thana-level Supervisor is net adequate, requests the Monitoring and Evaluation Call to conduct an assessment of the committee or procedure in question with recommendations for action or follow-up.
Each year, up to 5,000 local level disputes Are resolved through mediation. Most of the disputes focus on around family issues of scare resources particularly land. In 2001-2002, 4,711 disputants were mediated of which:
36% were about family matters such as marriage and divorce, household maintenance or spousal disagreement
26% involved discord over the giving and receiving of dowry or bride price
13% focused on community-level disputes
11% were revolved around lend ownership And sights claims
10.5% were financial disputes involving geode and services High attendance Rate.
In 2001-2002, the MLAA dealt with 7,175 applications for mediation. Of these, 4,711 or 66% were resolved amicably through mediation, 562 (or 8%) were referred for litigation and in 1,902 (26%) cases, and applications were dropped due to the Absence of the disputing party or remained pending at the end of the year:
The high number of applications and indeed high rate of resolution demonstrates the acceptability, credibility and popularity of the model within its operation areas.
Recourse to the Courts
In rural Bangladesh, people can choose to lake their dispute to a local-level mediation committee or to the courts Parties me free to institute litigation at any time during and after the mediation process if they are not satisfied with the process or the mediated outcomes- Mediation does not replace the courts and can never be considered as a substitute to the formal system. As the objective is to secure equal access to the rule of law, mediation must serve as an auxiliary to the formal justice system and should not be promoted as a substitute system for the pour and marginalized who haw an equal right to access the formal system.
In some case a mediation committee will refer their case to the courts. While there is no specific legislation to enable the family courts to refer cases to the mediation committees, initiatives have been taken to introduce mediation in the family courts. In Bangladesh, as in many countries in South Asia, some family court judges are now directed by the Chief Justice to mediate family disputes.
While striving to ensure that everyone gains equal access to the courts and indeed equality before the courts, initiatives such as the MMM provide the poor and marginalized with a viable cost-effective opportunity to access Justice.
Although ADR programs can play an important role in many development efforts, they are ineffective, and perhaps even counterproductive, in serving some goals related to rule of law initiatives. In particular, ADR is not effective means to:
Define, refine, establish and promote a legal framework.
Redress pervasive injustice, discrimination, or human rights problems.
Resolve disputes between parties who possess greatly different levels of power or authority.
Resolve cases that require public sanction.
Resolve disputes involving disputants or interested parties who refuse to participate, or cannot participate, in the ADR process.
Making ADR more effective19:
To make ADR effective mid popular in Bangladesh, it is important to install an efficient justice delivery, system free from corruption, infliction of injustice and unreasonable interruption, An awareness scheme must be initiated for the disputants, lawyers and members of the judiciary, which may be undertaken by the LJCBP, BCA, NGO’s, professional bodies and legal skills training institutions. Reformation may also be initiated incorporating ADR as a priority subject in the education curriculum and training programs emphasizing Trainers Training’ to encourage interested lawyers to concentrate ADR to be specialists.
To make ADR more effective, extensive, and pro-active, co-ordination is needed among different agencies. Other initiatives are given below:
Creating awareness about ADR
Spreading the success story of ADR
Encouraging NGO’s to become involved in ADR.
Involving the Bar associations in ADR
Providing training for mediators
Matching Government and NGO efforts.
Train more lawyers on mediation technique for greater success
Goal and Possible Uses of ADR20:
ADR systems may be designed to meet a wide variety of different goals. Some of these goals are directly related to improving the administration of justice and the settlement of particular disputes. Some, however, are related to other development objectives, such as economic restructuring, or the management of tensions and conflicts in communities.
Within the context of rule of law initiatives, ADR programs can:
Support and complement court reform –
By-pass ineffective and discredited courts –
Increase popular satisfaction with dispute resolution.
Increase access to justice for disadvantaged groups.
Reduce delay in the resolution of disputes
Reduce the cost of resolving disputes.
In Bangladesh several Non-Government organization e.g. Madaripur legal Aid Association, Action Aid, BLAST, Ain o Salish Kendro, Assistant Slum Dwellers and Family Court of Bangladesh bring a relief of the parties.
Alternative Dispute Resolution in the Mechanism Muslim Family Laws Ordinance, 1961
An ordinance to give effect to certain recommendations to the commission on Marriage and Family Laws. Where as it is expedient to give to certain recommendations of the commission on the Marriage and Family Laws. This Ordinance may be called the Muslim Family Laws Ordinance; 1961.It extends to the whole of Bangladesh, and applies to all Muslim citizens of Bangladesh, wherever they may be.
According to Section 2 of the Muslim Family Law Ordinance, 1961.”Arbitration Council” means a body consisting of the Chairman and a representative of each of the parties to a matter dealt with in the Ordinance.21″
Provided that, where any party fails to nominate a representative within the prescribed shall be the Arbitration Council;
Establishment of the Arbitration Council and its Procedure22:
Under the Muslim Family Law Ordinance,1961 expedient the any types of the dispute resolution, the Chairman of the Arbitration Council establish the council for the resolved the dispute between the aggrieved parties. The Chairman established the Arbitration Council on be half of the representative of the husband and wife. When the Chairman get the allegation of the parties within the Seven days he would be recommendations of the representative on be half of the husband and wife. If the any parties default to recommendations of the representative than the Arbitration council may take the legal procedure in their prescribed manner.
If any recommended party are not attain the dispute resolution in the prescribed time of their any types of illness otherwise any of the matter or any of lose of the good faith than the Chairman will be given the extra time. In this condition this condition the predecessor representative were not attain in the Arbitration Council, than the Chairman establish of the new council and procedure will running of the same ways. Only here keep the exception, the Chairman can take the Denovo another legal procedure.
According to section 3 of the Muslim Family Law Ordinance, 1961 to ever ride other laws,
The provisions of this Ordinance shall have effect notwithstanding any law, or custom or usage. For the removal of it is doubt it is here by declared that the provisions of the Arbitration Act 2001, the Code, of the Civil Procedure of courts shall not apply to any Arbitration Council.
Polygamy in Islamic law is a qualified right by which a Muslim man is permitted to marry up to four wives. Recently there has been lively debate about whether the right was allowed as a general rule or as an exception for natural calamities. It has been argued already that the permission to have polygamous marriages abuses women and their rights.
In Bangladesh, too, in accordance with the Muslim Family law ordinance, 1961, before a man marries for a second or subsequent time, he must obtain the permission of the chairman of the local administrative body, i.e. Chairman of the union Parishad, Pourashava or administrator of the Municipal Corporation. The Arbitration council, comprising such chairman of the local administrative body and representatives of both parties, can only allow the husband to remarry if the members are satisfied that the marriage is just and necessary, the Arbitration Council is bound by the rules of the Ordinance and the provision of the Muslim Family Law Rules,1961.
According to section 6 of the Muslim Family Law Ordinance, 1961;
No man during the substance of an existing marriage shall, except with the previous permission is writing of the Arbitration Council, contract another marriage, nor, shall any such marriage contracted without such permission be registered under the Muslim Marriage and Divorce (Registration) Act, 1974.
An application for permission under subsection (1) shall be submitted to the chairman in the prescribed manner, together with the prescribed fee, and shall state the reasons for the proposed marriage, and whether the consent of the existing wife or wives has been obtained there to.24 be submission a application in before to the Union Council Chairman and also described his first wife or another wives are lives with him in the same place.
On receipt of the application under sub-section (2), the Chairman shall ask and his existing wife or wives each to nominate a representative, and the Arbitration Council so constituted may, if satisfied that the proposed marriage is necessary and just, grant, subject to such conditions, if any, as may be deemed to fit, the permission applied for.
In deciding the application the Arbitration Council shall its reason for the decision, and any party may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision of the Assistant Judge concerned and his decision shall be final and shall not be question in any court.
If any person has presented the first wife he could not the second marriage without the permission of the first wife and also without the permission of the written permission of the Arbitration Council.
If the any person want to second marriage or another marriage he must In the above circumstances the Arbitration Council can given the permission of the another marriage, provided that the Council must be scrutinized the present are barren, or infirmity, or any other dispute between of the restitution of the conjugal rights aware of the any decree by the court.
If any parties aggrieved of any decision of the Arbitration Council, than they can also revision in the jurisdiction of the Assistant Judge in the court within the thirty days.
After revision in before of the Assistant Judge where as he given the any types of the decision, the parties can not any other complain in the decision. But if this court is not maintain his jurisdiction than the High court division can also taken the any other steps in the prescribed manner.
If the any person contract with the woman for the marriage ceremony than the Arbitration Council can complain of the Judicial Magistrate in the jurisdiction.
Any man who contracts another marriage without the permission of the Arbitration Council shall-
Pay immediately the entire amount of the dower, whether prompt or deferred, due to the existing wife or wives, which amount, if not so paid, shall recoverable as arrears of land revenue; and
On conviction upon complaint be punishable with simple imprisonment which may extend to one year, or with fine which may extend to ten thousand taka or with both.
In Makbul Ali vs. Munwara Begum,25 it was noted by the court that the Ordinance did not prohibit polygamy but allowed it under certain circumstances. The court enumerated the grounds as referred to in the to in the Rul;es of ordinance. Among these ground, physical and mental infirmity of the existing wife or wives are the primary ones which allowe a Muslim husband to a remarry. It remains a fact that the husband has to justify his claim through the permission of the Arbitration council. However, sometimes the procedural impediment of taking permission from the Arbitration Council itself is becoming the principal obstacle in reducing polygamy. In Tahera Begum vs. Farukh Miah, the Supreme Court did not punished the accused for contracting a second marriage without permission of the legislative authority in the misconception that there was no authority from which he could have obtained such permission. This is show the lack of link between legislature and judiciary.
According to section 7 of the Muslim Family Law Ordinance, 1961;
Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any from whatsoever, give the, Chairman notice in writing of his having done so, and shall supply of thereof to the wife.
Under the sub-section (1) receiving of the notice by the Council, than the Chairman will re-conciliation of the parties and established the Arbitration Council. This Council will be taken the all steps of the re-conciliation.
If the Talaq will be given the prescribed law than the both parties will stay in the ninety days and all prescribed which are taken, than it must be given a notice by the Union Council Chairman. He will also given the another notice of his wife. The ninety days will count after she received a those notice.
According to the Muslim Family Court Ordinance,1985, the court can give the decree where the parties are dissolution their marriage. Where as the court are give the any condition of the decree than the court will send certified copy of the divorce in before of the Union Council Chairman. When the Chairman taken the certified copy of the Talaq than he will take the procedure. The Talaq will effective after ninety days.
Dissolution of the marriage otherwise than by talaqWhere the right to divorce has been delegated to the wife and wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by talaq, the provision of section 7 shall mutandis mutatis and so far as applicable, apply.27
The consequences of the Arbitration Council is not Established:
According to section 7(4) of the Muslim Family Law of Ordinance, 1961:
With thirty days of the receipt of notice under subsection (1), the Chairman shall constitute an Arbitration Council for the of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring such reconciliation.
According to section 7 of the Muslim Family Law Ordinance, 1961;
If any husband fails to maintain his wife adequately, or where there are more wives than one, fails to maintain them equitably, the wife, or all any other wives, may, in addition to seeking any other legal remedy available apply to the Chairman who shall constitute an Arbitration Council to determine the matter, and the Arbitration Council may issue a certificate specifying the amount which shall be paid as maintenance by the husband.28
A husband or wife may, in the prescribed manner, within the prescribed period, and on payment of the prescribed fee, prefer an application for revision of the certificate to the Assistant Judge concerned and his decision shall be final and shall not be called in question in any court.
Maintenance is the lawful right of the wife to be provided at the husband’s expense food, clothing, and accommodation and customarily extends to other necessaries of life. In Bangladesh these problems are not articulated yet, although the judiciary has taken encouraging steps to provide for post-Divorce maintenance. In Hifzur Rahman vs. Shamsur Nahar Begum29 it was held that a person after divorcing his wife is bound to maintain her on a reasonable scale beyond the period of iddat for an indefinite period till she loses the status of a divorcee by remarrying another person. /however, the Appellate Division of the Supreme Court of Bangladesh has recently rejected the decision.
The statutory law regarding the issue is found under Section 9 of the Muslim Family ordinance of 1961. Thus the Arbitration Council could issue a certificate specifying the amount which the quantum of maintenance could be determined. The amount of maintenance to be paid as determined by the Arbitration Council. If not paid in due time, it could be recovered under section 9(3) of the Muslim Family ordinance as arrears of land revenue.
According to section 10 of the Muslim Family Law of Ordinance, 196130:
Where no details about the mode of payment of dower are specified in the nikah nama, or the marriage contract, the entire amount of the dower shall be pressed to be payable on demand.
The legal position as regard the issue of dower remains the same in Bangladesh as it was after independence from Pakistan. It has been argued before that the division of dower into prompt and deferred creates anomalies and sometimes reduces the amount of dower if the husband can falsely prove that the prompt dower has been paid.
The examination of Bangladeshi cases clearly shows that the right has been curtailed by reducing the amount to be paid by the customary concept of usool i.e. by jewellary or other items given to the women in the ceremony of marriage. It is significant to point out that this concept of usool in Bangladesh is different from the concept usool or customary practice under Islamic law. The indigenous concept of usool in Bangladesh means that at the time of marriage the bridegroom’s party asserts that a portion of dower has been paid by jewellary or other valuable goods.
The case reveals that whether any portion of dower is actually paid or not, if it is mentioned in the registered Kabinnama, the courts tend to reduce the amount of dower by the alleged usool. Thus, in the Mst. Razia Akhter vs. Abul Kalam Azad31, the Family court gave performance to documentary evidence. In the Kabinnama, it was mentioned that apart of the dower had been paid as usool at the time of marriage. The Court did not further inquire whether it had actually been paid.
In Monwara Begum vs. Hannan Howlader32 the court orthodoxy decided that the wife was no longer entitled dower is the jewellery given by the husband constituted her dower. This concept of usool as substituting dower with jewellery and other valuable is actually reducing the right of dower of women. However it is admitted that the Quran does not stipulated that dower should be in cash. The problem in Bangladesh is that outwardly it is shown that the dower is paid in kind, whereas actually it may not have been paid It is rarely inquired whether the valuables are actually paid or whether it tallies with the amount reduced from the dower.
Power to Make Rules33
According to section 5 of the Muslim Family Law Rules, 1961:
The Chairman shall conduct the proceedings of an Arbitration Council as expeditiously as possible.
Such proceedings shall not be vitiated by reason of a vacancy in the Arbitration Council, whether on account of failure of any person to nominate a representative or otherwise.
Where a vacancy arises otherwise than though failure to make a nomination the Chairman shall require a fresh nomination.
No party to proceedings before an Arbitration Council shall be a member of the Arbitration Council.
All decisions of The Arbitration Council Shall be taken by majority, and the where no decision of the Chairman shall be the decision of the Arbitration Council.
The subject matter the polygamy and Arbitration Council 34
In consideration whether another Proposed marriage is just and necessary during the continuance of an existing marriage, the Arbitration Council may, without prejudice to its general powers to consider what is just and necessary have regard to such circumstances , as the following amongst other:
Sterility, physical infirmity, physical unfitness for the conjugal relation, willful avoidance of a decree for restitution conjugal rights, or insanity, on the part of an existing wife.
Alternative Dispute Resolution in the Mechanism Muslim Family Court Ordinance, 1985
Background of the Establishment of the Family Courts35:
` The establishment of the Family courts in Bangladesh under this ordinance is a landmark decision of the government, which the long felt demand of the people. Before of the Family Courts, all litigations relating to family matters and other issues were adjudicated by the same courts. As a result, it would be impossible to dispose of cases expeditiously and it would take much time to set the cases and even sometimes plaintiff or defendant or both would die before the delivery of judgment. Naturally delay in disposal of suits frustrates the very purpose of establishment of courts. Many would have been deprived from justice due to delay, illiteracy, and ignorance of law.
Family Courts and Mediation
The great consequence of the family dispute is dissolved by the mediation focused by the Justice K.M. Hassan in the “Introducing ADR in Bangladesh: Practical Model”36
“In a conservative country like Bangladesh mediation provides a great opportunity for an aggrieved person who is a woman, to directly participate in the dispute resolution process and voice her grievance. Given the traditional mindset, the female aggrieved parties, in the society, are not prone to expose themselves to public eye by going to Court. Mediation by Family Court removes the risk of such exposure and allows them to participate in their affairs and to participate in their affairs and to settle dispute without being condemned by critical eyes. Direct participation of the female parties to the dispute has thus, to a great extent, facilitated and contributed the success of the program.”
He further said that,
“An immediate achievement of mediation in the Family Courts is that the success of mediation by a skilled mediation as judge reconciles the parties concerned in a shortest possible time. It restructures a family which was on the verge of breaking up. It removes bitterness and replaces peace, harmony and happiness in then family environment and thus avoids ill effects on the other members of the family, specially the children.”
Position of Family Law and women in Bangladesh:
The name of this above content is to assess comprehensively to what extent the legislative enactments in family law, especially or marriage laws and marriage-related issues, have contributed to giving women in Bangladesh better protection from economic deprivation and violence. The law concerning registration of marriage and divorce, restitution of conjugal rights, polygamy, and dissolution of marriage, dower, maintenance, custody and guardianship are analyzed in this above content.37
This chapter also focuses on the question whether women in Bangladesh stand to benefit from judicial activism. Along with the trend for more modern legislation in Bangladesh, this indicates a clear manifestation of a new sensitivity in issues involving the welfare of women, particularly protecting them from abuse. One example of such recent judicial activism would certainly be the provocative judgment delivered by Justice S.M.Hussain in NellyZaman vs Giasuddin Khan 38, where he held that the concept of forceful restitution of conjugal rights by the husband against an unwilling wife has become outmoded and does not fit in with the public principle and policy of equality of all men and women. This might be a consequence of social changes in Bangladeshi society, as women contribution to the national economy is now being better valued and recognized. However this out look of the judiciary is not only indicated in a few family laws cases and is not a general tendency.
Although in Islam marriage is a civil contract and not a sacrament, it is a religious and a sacred covenant. Marriage in South Asia requires many rituals and involves not only the parties or their families but also the communities are also indispensable. In this context, marriage can be regarded as a social contract.
There are no prohibitive sanctions against registration of marriage also. Thus registration is not a constituent condition to be fulfilled for the validity of the marriage under Islamic law. The requirements of registration are considered to be legal restrictions for various kinds of protection, including prevention of denial of the marriage and establishment of paternity. Compulsory registration of marriages appears to be an attempt to check not only child marriages and polygamy but also to confirm whether the parties have capacity to marry and have proper consent to the marriage. This may prevent the chance of fraud and abuse of the relationship.
Restitution of Conjugal Rights
It was argued that although this remedy is allowed to both husband and wife, its Anglo- Indian development has strengthened the already strong position of a Muslim husband. However, there are grounds of defence which can be used by the wife t6o refused the forced restoration of her conjugal life. Payment of prompt dower is one such defence, which acts as a condition precedent to the husband’s claim for restitution of conjugal rights. The courts before the independence of Bangladesh seemed to be not very these defences. The shift in the attitude of the judiciary can be gathered if we consider the cases reported after the emergence of Bangladesh.1
The leading example here is Justice S.M. Hussain’s point pronouncement in Nelly Zaman vs.Giasuddin Khan2 .He commenced:
“A reference to article 28(ii) of the constitution of Bangladesh guaranteeing equal rights of women and men in all spheres of t6he state and public life would clearly indicate that any unilateral plea of a husband for forcible restitution of conjugal rights as against a wife unwilling to live with her husband is violate of the accepted state public principle and policy.”
The prayer for restitution of conjugal rights was not allowed by the court, in the above case on the ground that the marriage had already been dissolved by the exercise of the right of delegated divorce by the wife.
In recent decision by the High Court Division of the Supreme Court in Hosne Ara Begum vs. Rzaul Karim3 it was rightly observed that the wife has under Islamic law a right to refuse the conjugal rights of the husband if she is treated 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 women to refuse restitution of conjugal rights to the husband.
In Khondaker Shafiqul Huq Masud vs. Farida Begum and others4, the same lady judge did not grant the plaintiff the claim for restitution of conjugal rights on the same constitutional reasoning. The Family Court held that it is out of question to allow the plea if the wife fears death. Further on, the court ascertained that the marriage itself had been legally dissolved by the exercise of delegated divorce by the wife.
Finally, in Ajuman Ara vs. Md. Abdur Rashid5, the argument of Nelly Zaman’s case was upheld by the family Court when the lady judge, did not allow the plaintiff to restore her conjugal life. It was held in this case that the marriage between the parties subsisted as the talaq had not been given in accordance with section 7(1) of the Muslim Family Law Ordinance, 1961. The court granted the claim of prompt dower and maintenance to the plaintiff.
Dowry and Cruelty to Women6
This above content extends the examination of the issues of family law and women in Bangladesh by focusing mainly on disputes concerning dowry and cruelty to women. The violence against women has reached the stage of a national problem in Bangladesh. In the sphere of domestic violence, cruelty to women for dowry and other causes has become a grave issue.
Dowry is new phenomenon for the Muslim communities in Bangladesh, with enlarged effects after independence. For the Hindu community also, its impact was not so widespread before liberation. It is significant to note that after independence a nouveau rich class who formerly belonged to the lower strata came into power. This spectrum of people willingly gave dowry to the prospective grooms from higher classes of the society to become a part of that class. Nevertheless hyper gamy was only one variable for the causation of the dowry system. This seems to be more prominent in the caste system of Hindu society as there is a tendency towards hyper gamy by dowry has also spread to the Muslim community in Bangladesh. Although there is supposed to be no class system in the Muslim society of Bangladesh, even in the supposedly homogenous peasant community significant distinctions of wealth, status and power exist. The recent emergence of dowry among Bangladeshi Muslims is more due to simple greed and commercialization of marriage than the impact of traditional culture, the urge of hyper gamy and the undermining of the at or before or after the marriage as consideration of the marriage.
Some years ago, it was reported by a weekly Bengali magazine that there were nearly women’s productive role. To the author, the present dimensions of the dowry evil are the result of increasing industrial culture and the fascination for material prosperity, i.e. to get rich overnight to posses the latest gadgets of comfort and luxury and the display of wealth. The impact of coming into contract with a wider cash economy by going abroad has also been shown to be a significant variable for their raised exceptions in marriage.
Section 2 of the Dowry Prohibition Act of 1980 of Bangladesh prohibits the giving or taking or demanding of dowry one lacks cases pending in Bangladeshi courts. It has also many women in Bangladesh are filing divorce petitions to escape torture at the hands in laws for failing to meet the exception of dowry. The validity of these reports is not beyond doubt; there are a huge number of cases of dowry. It is difficult to give a full survey of cases on dowry from the whole of Bangladesh; there are not many reported cases from the higher courts. The unreported cases contain a large volume of cases of different Magistrate courts, as each administrative area has such a court. However, it is possible to give an overview of the problem through reported and some unreported cases to reflect the application of the provisions of the Dowry Prohibition Act of 1980.
The first published cases in Bangladesh are that of Mihirlal Poddar VS. Zhunu Rani Shah7, where the High Court in Dhaka held that the demand for dowry was not a consideration for the marriage and hence it was not a demand for dowry. However, the High Court in Barisal, on almost identical facts, preferred the opposite conclusion three years later in the case of Reazul Karim vs. Mst. Taslima Begum8, It has been suggested that these conflicting decisions on dowry need to be resolved by the Supreme Court of the country. Thus as the court:
“Demanding money or other valuable security from the wife or her relations by the husband after she is married for giving her the status of a wife namely, maintaining her as a wife, protecting her as a wife and giving her a shelter would amount to demanding money in consideration of the marriage.”
After the whole discursions of the Alternative Dispute Resolution in Contemporary of Bangladesh in the Sense of Muslim Family Dispute in Matter of The Legal Conflict, now I Discuss About the whose organizations are deals in the legal conflict of the Family matters one by one:
From the fact finding when the incident turn into a legal case than under supervision from Network link up the case with local legal aid provider organization i.e., BLAST, Stop Violence Against Women Network(SVAW) CITY Corporation Mayor, Ward commissioner. Network also provides help to the supervisors to get legal and social support from relevant area like police station, doctor and influential community people.
Here is some example of cases where Stop Violence against Women Network was in storng supervision.
Marzina Begum Case9
It is 15 years Marzina Begum got married. She had three children. It was a daily life story of her to be tortured by husband and in laws. Two years ago when physical torture and abuse were beyond tolerance she came to her father’s house. June 2006 her husband came back to get her. Again her husband brutal and torture her for dowry of taka 30000. Marzina sought legal Aid to SVAW network. Network place the disputes to respective ward commissioner. City Corporation of Chittagong organized several Shalish. Now a dispute is resolved by commissioner and her husband promise not to demand dowry and beat her.
Single Mother Fight for Her Child10
Rahima was 22 years old. She lives in village Choto Jodobpur under Bamna Upazilla. She had an affair with Mr. A Huq who lives in a same village. Virtually Mr. A offers her first and she response. Gradually the advanced with physical relation.At first Rahima was not willing to engage with physical relation but A Huq assured her to get marry. Latter on her became pregnant. When villager came to know the news Rahima open up on the issue. Rahima started to force him to get her marry. But Huq denied the relationship with Rahima. At one stage the matters run to the Union Parishad. Member of UP Marzina Begum with consultation UP Chairman investigate the matter and talk to Rahima and A Huq and his family to recognize Rahima and upcoming baby as wife and child. On 9th November 06 in the afternoon through Shalish A. Huq confess the relationship and recognized Rahima as wife. At that sitting marriage was registered and upcoming baby will be considered as legitimate child.
Shahinur Begum Case11
Shahinur Begum lives with her husband Mr. Rafiq Miah in a village name Baufall. Mr. Rafiq has dispute with his brother about land position. Man times Mr. Rafiq and his brother Azhar Ali Clash on the issues. While Shahinur is pregnant, took position on land that was his brother possession and demand his won. One day when Rafiq was out side for work Mr. Azhar Ali and his wife started to humiliate her verbally. Latter, clash turns into serious and Azhar Ali intentionally starte to beat Shahinur severely with bamboo remarkably at her lower part of bally. With a verry bad pain she got abortion. Azhar Ali took her in hospital as her husband was not at home. One of the members of organizations of SVAW Network Krissnochura Maila Songstha dealt the case. They visited hospital and facts find the case. Shahinur was provided medicine and the case is linked up with BLAST for legalAid. Now Shahinur is out of danger and living at home. One of the member organizations of SVAW Network Krisnochura Mahila Songstha dealt the case. They visited hospital and facts find the case. Shahinur was provided medicine and the case is linked up with BLAST for legal Aid. Now Shahinur is out of danger and living at home.
Struggle of Shiuly and her Child12
Shiuly is the daughter of Mansur Ali, who lives in a village named Manikpur of Jibon Nagar Upazilla in Chuadanga district. Mansur Ali is very poor man and lives on hand to mouth. As result, Shiuly did not get any chance to goto school, where as she is a very simple, innocent girl and quite ignorant about complexity of human life of this earth. Shiuly and her family had to suffer a lot as her father is not a responsible person to run his family. Most of the days he stays away from his family. Within such poor and marginal condition she grew up.
When Shiuly become 18 years old her father chose a man named Razib of Hatgopalpur village as her husband. But curse of dowry did not let her to continue peaceful family life with Razib. Her in- law family members started to torturing her physically and mentally to pay dowry money which was quite impossible to pay her father. As a result Shiuly was firced and compelled to come back her father’s house. So, Shiuly could not back to her in-laws house again.
Shiuly started second episode of her life at her father’s house in miserable condition. She becomes another burden to apoverty stricken family. Habibur is the next door neighbors of Shiuly family. A good relationship built up between Habibur and Shiuly for frequent visit of two families. The relation turned in to affair. Habibur offered and assured Shiuly to marry her. Innocent Shiuly trusted Habibur which caused a deep relationship between them and it continued for ayear. Once Shiuly become pregnant, immediately she informed Habibur about her pregnancy and also requested him to marry her. On this point Habibur was assuring her that he will soon marry her besides, he told her not to inform her pregnancy to anybody else. As a result, she did not let anything know about her pregnancy to any of her family members or anybody else. When her pregnancy turned into eight months then it was very difficult for her to hide her physical changes from her family members and also others. With the family pressure she was compelled to spell out the name of her expected child’s father. When her family members become informed about the identity of expected child’s father, immediately Shiuly mother rushed to Habibur’s mother and informed the whole situation. She requested Habibur’s mother to arrange a marriage ceremony for them, as because socio cultural problem it would be difficult to give identity to the child and there by the mother. But Habibur’s parents did not listen to Shiuly family rather they advised them to abort the child.
Accordingly, they took Shiuly to a clicnin of Jibon Nagar Upazilla. Authorities of the clinic refused to arrange the abortion as the baby in eight months and it would be risky for Shiuly also. Gradiually villager came to know the matter and different kinds of gossips and whispering moving around. At one night members of two families sat for a solution of the matter through Shalish a famous dispute resolution process in village. Habibur’s father offered 1lakh cash to get rid of child responsibilities but shiuly’s uncle Roice uddin refused the offer saying rather they kept pressurizing Habibur’s family to give identity of the upcoming child of Shiuly.Finally on 15 May, 2006 Shiuly has become the mother of a beautiful baby boy.
Shalish solved Rokhsana’s Problems13
Rokhsana’s in laws member used to torture her. One day her mother in law and wife of brother in law out her from home. Her husband kept himself mute on the issues. She came to father’s house with two children. Rokhsana’s father is very poor and could not afford her children. After two months not getting any maintenance from husband she complains to Manikgonj Stop Violence against Women Network on 18th November 2006. Manikgonj linked up the case with BRAC Mr.Alamgir Mian, officer in law and Shalish department took the case and send a legal notice and organized a Shalish on 6th December 2006. A dispute was solved in Shalish. It was decided that Rokhsana’s in laws member will not beat her and give maintenance to her and children.
Rumana Get Her Dowry Money14
Parties Name: Anamul Hauqe and RumanaOccurrence of Place: ChuadangaFact and Decision:
When the marriage between of the Anamul Hauqe and Rumana, than their conjugal life is fine. But after the one year of passing of marriage between their conjugal lives is become in violence. The husband Anamul always rebuke his wife Rumana and also beat him.The reason that consequences, Anamul was making a relation with neighbors lady. For that he did not like her wife wife Rumana. Rumana hurt and soul tries the came back in the good path. But Anamul never changed his nature. Once upon day Rumana to visits her father house than he was never to investigate how she was. To make know that, Anamul marry those lady. At that time the father of Rumana a came back to him. But he did not get any proper justice. At that time, he inform that BRAVE circle members. They are mediated their problem and they also make a decision take the solution. Both parties and other standing proper persons are mutual that Anamul must be given his wife to dower money which was fixed upon the KabinNama.
Madaripur Family Court15
Case Study — 01
Family Court, MadaripurFamily Suit No –44/ 2006
Mrs. Nurjhan Parveen———Plaintiff
Shawkot Habib Santo
———-DeffendentNature of the suit:
The suit is based on the Dower and Maintenance.
Summary of the fact:
Defendant was claim dowry from the plaintiff. Defendant always rebukes the plaintiff and also beat her for him given the dowry, but her family is too much poor. He departs his wife from his house and gives her ultimatum on the reason of if she did not collect the dowry money. Then the defendant of her husband was given the talaq. Defendant also did not give his wife the maintenance and dower money at all. As a result, plaintiff filed the suit against the defendant for taken of the dower money and maintenance.
Types of resolution:
The suits dissolved by the mediation and negotiation of the both parties appointed lawyers and parties lawyers and parties lawyers.
Defendant Shawkat Habib Santo gives the plaintiff dower money and maintenance which is fixed upon their marriage ceremony.
Plaintiff Mrs. Nurjahan Parveen and defendant Shaekat Habib Santo both are not claim any demand.
As a result, the suit is dismissed by their negotiation.
Case Study — 02
Family Court, MadaripurFamily Suit No –10/ 2008
Mr. Rfique Hawlader———Plaintiff
Mrs. Shamima Akhter (Shuma)
Nature of the suit:
Restoration of Restitution of the conjugal Rights.
Summary of the fact:
The plaintiff and defendant are the couple by the agreement of the marriage. After passing of few years their conjugal life is become on the fatal. Some evil people they are advised the defendant to curtailed down the relation. A part from without the consent defendant was going away from his husband and come back her father house. Than the plaintiff filed in a suit of the restoration of the restitution of the conjugal rights.
Types of resolution:
When the suit is filed in court, the learned justice presumed that this suit is the petty case. The court is the mediated of the dissolution of the suit. The suit is dissolved by the negotiation of their both parties learned lawyers and local pourashava chairman.
Plaintiff Rafique Hawlader to pay back the dower money tk.200000 of the defendant Mst. Shamima Akhter (Shuma).
The plaintiff who was gifts her wife a piece of land by the registered document than she will transfer those pieces of land by the registered document.
After the resolution both they are not any demand of each others.
Every one has right to access formal state justice. Equal access to justice is one of our most basic rights. However, many people are denied or cannot access the formal system on an equal level with others for some reasons. Dispute resolution is a process that implies the causes of conflict as well as the resolution of such conflicts. Conflict is a regular and continuous process in our day-lo-day life. Conflict can be resolved or settled, but once resolved, new, conflicts may arise. It is also a continuous process – one is resolved and another one emerges. Conflict cannot be eliminated forever from our lives, but it can be minimized.