Star Law Analysis
Executing Family Court's decree
Zahidul Islam
In the first part of this write-up, the focus was on the confusion as to determination of executing court. It was discussed that for executing the money decree of the Family Courts, the executing court should begin working as a civil court so that the decreed money can be realised; and when the assets of the judgment debtor cannot cover the decretal amount, only then the executing court may sentence the judgment-debtor to imprisonment.
However, our present focus is on another important aspect relating to execution of family courts' money decree. Some lawyers and judges think that though the present law keeps provision for sentencing judgment-debtor to imprisonment for a maximum term of three months for unpaid decretal amount, this provision does not serve the purpose of a decree, as many judgment-debtors prefer to suffer this three months civil imprisonment than to pay decreed money. This in other way expresses that (1) judgment debtor can choose whether to pay the decree-money or to suffer imprisonment; and (2) that the penalty for non-payment of decreed money is civil imprisonment for maximum three months.
No doubt, there is a gross misunderstanding in this respect that will be removed just now. Subsection (5) of section 16 provides that the court may, if it so deems fit, direct that any money to be paid under a decree passed by it be paid in such instalments as it deems fit. And subsection 3B provides that:
For the purpose of execution of a decree under subsection 3(B), the Judge of the Family Court shall be deemed to be, Magistrate first class,...., and he may issue a warrant for levying the decretal amount due in the manner provided in that Code for levying fines, and may sentence the judgment debtor, for the whole or any part of the decretal amount remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to three months or until payment if sooner made.
From the underlined part of the above provisions it is clear that court may sentence judgment debtor for whole or any part of the decretal amount. Thus when a judgment debtor has not paid the total of 5,000 taka decretal money, he may be sentenced up to three months imprisonment, again when judgment debtor has paid 4,000 taka out of 5,000 taka decretal money, the court may award sentence of three months for this 1,000 unpaid decretal amount.
For the cases of decretal money to be paid in instalments, the legal position was clarified in the case of Maksuda Akhter vs Md Serajul Islam 51 (199) DLR (HCD) 554. The fact of the case, if brief, was that Maksuda Akhter was married to Md Serajul Islam and thereafter they were divorced. Subsequent thereto, Makshuda Akhter filed a suit for realisation of dower money and maintenance. The suit was ultimately decreed and the decree-holder, Maksuda Akhter, put the decree into execution. On the prayer of the judgment debtor 40 instalments were granted by the court, each instalment being taka 13,875.02 only to be paid by the month. The first instalment was not paid. Consequently the judgment holder filed an application for executing the first instalment and sending the judgment debtor to suffer imprisonment for three months. The judgment debtor suffered the imprisonment but did not pay the amount of the first installment. The judgment debtor did not also pay any instalment which was subsequently due. Then the decree-holder filed another application to direct the judgment debtor to suffer civil imprisonment for further three months for the failure to pay the instalment of August, 1998. The application was rejected as the court understood that as the judgment-debtor once has suffered imprisonment for three months, he shall not have to suffer imprisonment any more and he shall have not to pay the decretal money at all.
Against this judgment and order, the decree-holder filed a petition for revision in the High Court Division. The learned judge of the High Court Division held that:
A fresh and separate cause of action will arise for failure to pay money of each and every instalment for the purpose of sending the judgment-debtor to imprisonment for his failure to pay the money under each instalment.
Against this High Court Division decision the judgment debtor appealed in the Appellate Division of the Supreme Court, which also confirmed the decision. The Appellate Division comprising of four judges, observed that suffering imprisonment of three months was an execution for one instalment only in respect of Taka 13,000.00 and odd whereas the total decree was for Taka three lac and odd to be paid in 40 instalments. As a matter of fact, the execution was for one installment, and there is no legal bar to proceeding with the execution under section 16(3) of the Family Court Ordinance for the unpaid amount.
So, the math is simple in that if a judgment-debtor is allowed to pay decretal money in instalments, he will be liable to suffer imprisonment for up to three months for failure to pay each and every installment.
The author is a law and governance researcher, currently working for Bangladesh Legal Aid and Services Trust.
