Assignment

On

“Short Notes on ADR Appling in

The Muslim Family Law Ordinance, 1961:
The Artha Rin Adalat Ain, 2003
The Village Court Act, 2006

Course Code: Law 406

Course Title: Alternative Dispute Resolution (ADR).

Submitted By: Submitted To:

Md. Shahria Mondal
Khandker Dider us Salam
ID: 141-26-546
Section: A Assistant Professor
Department of Law Department of Law
Daffodil International Daffodil International
University University

Date of Submission:08-08-2017
Abstract:
Now a day the popularity of Alternative Dispute Resolution (ADR) system is
increasing day by day in Bangladesh. All types of courts whether these are
lower or higher are burdened with the litigations. These problems have been
arisen due to the defects of adversarial system. The justice seekers of
Bangladesh are frequently harassed in the area of courts. In this respect,
ADR comes to make them harassment free. Most of the statutory laws
including the main procedural law for civil matters follow this system. The
ADR system is developing in the statutory laws of Bangladesh. There are
about ten statutes of Bangladesh in which this popular system has been
inserted. The ADR system should be developed more and more in other main
statutes including the Code of Criminal procedure.

Introduction:
Conflict or dispute is a natural and inevitable part of all human social relationships. Conflict
occurs at all levels of society – from interpersonal, family, tribes to national and international
levels. In other words, conflict is ubiquitous. By conflict or dispute, we mean conflict of
interests between two or more parties about resources, differences of opinion within the
group, power, prestige and others. Parties in conflict/disputes believe that they have
incompatible goals and here the desire to gain advantage over, win over, injure, or defeat one
another. Alternative Dispute Resolution or ADR is an umbrella term used to describe a
variety of methods for resolving disputes outside of traditional methods such as litigation.
Sometimes the "A" in ADR is defined as "appropriate" rather than "alternative" as a way of
indicating that ADR relates to finding the most fitting way to resolve disputes. Sometimes
there is no "A" used and simply the phrase "dispute resolution" is used, as a way to indicate
that all approaches to dispute resolution are potentially considered1. Whichever way the
acronym is spelled out - alternative, appropriate, or just dispute resolution - the concept of
ADR is based on expanding the tools available for resolving disputes.2

Definition of ADR:
The term "Alternative Dispute Resolution" or "ADR" is often used to describe a wide variety
of dispute resolution mechanisms that are short of, or alternative to, full-scale court
processes. The term can refer to everything from facilitated settlement negotiations in which
disputants are encouraged to negotiate directly with each other prior to some other legal
process, to arbitration systems that look and feel very much like a courtroom process.
Processes designed to manage community tension or facilitate community development
issues can also be included within the rubric of ADR. According to GLOSSARY Law
Dictionary- “The term ‘ADR’ describes a number of methods used to resolve disputes out of
court, including negotiation, conciliation, mediation and the many types of arbitration. The
common denominator of all ADR methods is that they are faster, less formalistic, cheaper and
often less adversarial than a court trial.”3 According to the case referred to Hilmond
Investments v CIBC 1996 135 DLR 4th 471 (ONT Court of Appeal) 887574- 'ADR' is the
method by which legal conflicts and disputes are resolved privately and other than through

1
http://courtadr.org/pocketguide/ (accessed on 26.06.2011)
2
Ibid
3
www.en.wikipedia.org/wiki/Alternative_dispute_resolution (accessed on 26.06.2011)
litigation in the public courts, usually through one of two forms: mediation or arbitration.4 So,
from the above discussion it can be said that Alternative Dispute Resolution refers to the
means of settling 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.

ADR in Statutory Laws of Bangladesh

Alternative Dispute Resolution (ADR) has attracted a great deal of attention as a method of
reducing both the financial and emotional costs of litigation. It appears that simply moving
cases from the courts, and away from the adversarial process, allows some cases to be
resolved quicker and to the greater satisfaction of the parties. For this reason the Alternative
Dispute Resolution has been inserted in different statutes and laws in Bangladesh. The
legislations which provide for ADR are given below:

The Muslim Family Law Ordinance, 1961:

Muslim Family Laws Ordinance of 1961 provides some restricted facilities for women. The
husband must give notice of talaq to the wife through proper channel for breakdown of a
marriage. He must take permission of the wife before a second marriage. Polygamy is
curtailed by this Ordinance. This law is available to Muslims only, though polygamy is a
concern for other communities also. Any dispute under the Muslim Family Law ordinance,
1961 will be solved by the arbitration council. According to section 6 of the Muslim Family
Law Ordinance, 1961 no man, during the subsistence of an existing marriage, shall, except
with the previous permission in writing of the Arbitration Council, contract another marriage,
nor shall any such marriage contracted without such permission be registered under the
Muslim Marriages and Divorces (Registration) Act, 1974 (LII of 1974)].5 An application for
permission under sub-section (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 thereto. 6
On receipt of the application under sub-section (2), the Chairman shall ask the applicant 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 fit, the permission applied for.7 In deciding the
application the Arbitration Council shall record its reasons 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 to the Assistant Judge concerned and his
decision shall be final and shall not be called in question in any Court.8 Any man who
contracts another marriage without the permission of the Arbitration Council shall- (a) 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 be recoverable as arrears of land revenue;
and (b) 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.9
According to section 7 of the Muslim Family Law Ordinance, 1961 when any man wishes to
4
www.asapcollect.com/Resources--Links.../index.html (accessed on 26.06.2011)
5
Section 6(1) of the Muslim Family Law Ordinance, 1961
6
Section 6(2) of the Muslim Family Law Ordinance, 1961
7
Section 6(3) of the Muslim Family Law Ordinance, 1961
8
Section 6(4) of the Muslim Family Law Ordinance, 1961
9
Section 6(5) of the Muslim Family Law Ordinance, 1961
divorce his wife, at first ha has to pronounce talaq in any means. According to section 7(1)
any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of
talaq in any form whatsoever, give the Chairman notice in writing of his having done so, and
shall supply a copy thereof to the wife. According to section 7(2) whoever contravenes the
provisions of sub-section (1) shall be punishable with simple imprisonment for term which
may extend to one year or with fine which may extend to ten thousand taka or with both.
According to section 7(3) a talaq unless revoked earlier, expressly or otherwise, shall not be
effective until the expiration of ninety days from the day on which notice under sub-section
(1) is delivered to the Chairman. According to section 7(4) within thirty days of the receipt of
notice under sub-section (1), the Chairman shall constitute an Arbitration Council for the
purpose of bringing about reconciliation between the parties, and the Arbitration Council
shall take all steps necessary to bring about such reconciliation. According to section 7(5) if
the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the
period mentioned in sub-section (3) or the pregnancy, whichever be later, ends. According to
section 7(6) nothing shall debar a wife whose marriage has been terminated by talaq effective
under this section from re-marrying the same husband, without an intervening marriage with
a third-person, unless such termination is for the third time so effective. The Muslim Family
Laws Ordinance, 1961 prescribes an excellent system of Alternative Dispute Resolution.

The Artha Rin Adalat Ain, 2003:

Artha Rin Adalat or Money Loan Court was established under a law in 1990 to adjudicate the
cases relating to the recovery of loans of financial institutions. Earlier, the cases for loan
recovery were the jurisdiction of the general civil courts. To strengthen the Artha Rin Adalat
(Money Loan Court), the law a new Artha Rin Adalat Ain was enacted in 2003. Under the
law specialized courts for the settlement of disputes between the borrowers and the lenders
were established in the premises of the District Judge's Court. The Courts of Joint District
Judge established under the new law have overriding powers on other laws of the land. This
means, in case of conflict with any other law in force, the provisions of the new law relating
to money loan shall prevail. Under the provisions of the Act, subordinate judges are
appointed judges of the money loan courts in consultation with the Supreme Court. The law
requires filing of all suits for realization of the loan of the financial institutions, banks,
Investment Corporation, house building Finance Corporation, leasing companies and non-
banking financial institutions, constituted under the provisions of Financial Institutions Act
1993, with the money loan courts for trial. A civil court, the money loan court has all the
powers of the civil court.

The Village Court Act, 2006

To solve the disputes and wrongful activities in the village areas of Bangladesh the Village
Court Act,2006 has been passed in 2006. from that time it works properly and contributes
more and more to develop the ADR system in Bangladesh. Section 2(c) of the Village Court
act, 2006 says about the definition of “Union Parishad”. According to section 2(d) of the
Village Court act, 2006 “Assistant Judge within jurisdiction” means the assistant judge in
whose jurisdictional area the union is situated and in cases it will be the junior most judges
where there is more than one such assistant judge. Section 2(k) of the Act gives the definition
of “Party” as any such person whose presence is to be considered necessary for the correct
mediation and such other person who is attached by the Village Court for such purpose.
Section 3 of the Village Court Act, 2006 says about the cases which may be judged in Village
Court. There are a lot of civil and criminal offences which may be tried in the Village Court
under the Village Court Act. But here the value of the subject matters to which the offence is
related will not be more than 25,000tk. Where any case falls under the jurisdiction of the of
the Village Court, any party of the case may apply to the Chairman of the Union Parishad
with due process of law to establish the Village Court to try the case. 10 Any aggrieved person
for disallowing application under sub-section (1), may apply for revision against to the
assistant judge.11 Section 5 of the Village Court Act, 2006 says about the establishment of
Village court. Viillage Court consists of one chairman and four members nominated by both
parties (two from the each). Provided that one member between the two nominated persons
by each party, will be the member of concerning Union Parishad. 12 The Union where the
crime takes place and cause of action arises, if the parties of the dispute are the residents of
that Union, the Village Court will be established there, and in accordance with sub-section (2)
and the concerning Village Court will have the jurisdiction to try that case. 13 The Village
Court may order any person to compensate not more than 25,000 tk. in crimes mentioned in
1st part of the schedule.14 The Village Court, in any cases of crimes mentioned in the 2nd part
of the schedule, may order to pay such amount of money mentioned for such crime or may
order to transfer property to real owner or may order to return possession of the property.15

Conclusion:
However, there are also some arguments against and in fovor of the concept of ADR. It is
said that moving dispute resolution from the public to the private sphere, will prevent the law
from developing to meet changing circumstances. Keeping information about the details of
settlements out of the public domain prevents its use as a comparator and may lead to an
increase in the number of claims, which are disputed. It is also possible that private
settlements may not take into account the wider implications of the dispute. Critics believe
that ADR encourages compromise. Compromise can be good way to settle some dispute, but
it is not appropriate for others. In serious justice conflicts and cases of intolerable moral
difference, compromise is simply not an option because the issues mean too much to the
disputes. Another concern is that ADR settlements are private and are not in the public record
or exposed to public scrutiny.

References:

01. Muslim Family Laws Ordinance,1961

 Polygamy u/s 6
 Divorce u/s 7
 Maintenance u/s 9
02. Artha Rin Adalat Ain, 2003
 Settlement Conference u/s 21
 Mediation u/s 22
10
Section-4(1) of the Village Court Act, 2006
11
Section-4(2) of the Village Court Act, 2006
12
Section-5(1) of the Village Court Act, 2006
13
Section-6(1) of the Village Court Act, 2006
14
Section-7(1) of the Village Court Act, 2006
15
Section-7(2) of the Village Court Act, 2006