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Published : August 19, 2017 | Author : Md. Saleh Akram
Category : Bangladesh Law | Total Views : 392 | Rating :

  
Md. Saleh Akram
Lecturer, Department of Law and Human Rights, University of Asia Pacific, Dhaka, Bangladesh
 

A Study on Dissolution of Muslim Marriage in the Context of Bangladesh: A Critical Analysis

In Islam, marriage involves legal, social and religious matters. Marriage is a contract, which permits wedlock and procreation and gives legal recognition of the parenthood of children. According to a verdict given by Justice Mahmud, "Muslim marriage is not a sacrament; it is absolutely a civil contract". Islam considered divorce as an exception to the status of marriage. Divorce means repudiation. It can simply be defined as releasing a wife or freeing her from the bondage of marriage. The Prophet of Islam pronounced that the “Talaq to be the most detestable before Allah of all permitted things”. Divorce can be effected in any of the following ways: (i) at the will of the husband or without the intervention of a court by mutual consent of the wife and the husband; and (ii) by operation of the court on the lawsuit filed by any of the parties. When Husband made a divorce at his will is called talaq. The Muslim Family Laws Ordinance 1961 delegated the wife to divorce her husband, provided such right is delegated to her in the formal marriage documents.

2. Modes Of Dissolution Of Marriage:

2.1. Death of the parties:
The death of the husband or wife operates in law as dissolution of marriage. When the wife dies the husband may remarry immediately, but the widow has to wait for a certain period.

2.2. The act of the parties:
Among the pre-Islamic Arabs, the power of divorce possessed by the husband was unlimited. They could divorce their wives at any time, for any reason or without any reason. There are varieties of ways in which a marriage becomes terminated in Islamic law either automatically or on the initiative of the husband, the wife or a judge. It is true that the "power" of divorce is in the hands of the husband and not the wife, but this does not mean by any stretch of the imagination that the woman has no ability whatsoever to put an end to the marriage if she is mistreated, unsatisfied or unhappy. Men who convince their wives that they have absolutely no alternative unless they choose to divorce them have deviated in their Islam, misled and oppressed.
A marriage may be terminated by any of the following ways:

a. Husband may divorce in the following manner-
Talaq: According to Asaf A. A. Fyzee,“In law, it signifies the absolute power which the husband possesses.” A sound and adult husband can divorce his wife without showing any cause. Though to give divorce is so hated and a heinous act but recognized by law. By the husband talaq may be of (i) Talaq-e-Sunna and (ii) Talaq-e-Biddat.

(i) Talaq-e-Sunna:
That is a talaq which carries the approval of the Prophet. It may be of two types:

Talaq-e-Ahsan: It is the most approved form by the Prophet. In that form of talaq the husband repudiate his wife by a single pronouncement of talaq in a period of tuhr (purity), during which he has not had intercourse with her, and then leaves her to the observance of iddat. The divorce remains revocable during the iddat, and the parties retain the right of inheritance.

Talaq-e-Hasan: Approved by the Prophet. In the case of talaq-e-hasan, the husband successively pronounces divorce three times during consecutive period of purity. It is called a ‘talaq upon a talaq’, where the first and second pronouncements are revoked and followed by a third, only then talaq becomes irrevocable.

(ii) Talaq-e-Biddat: It is called the triple declaration. When the husband does not follow the approved form of talaq and neither pays any attention neither to the period of purity nor to the abstention from intercourse. It becomes irrevocable at the time of pronouncement.

(iii) Ila: When a husband of sound mind takes a vow that he will abstain from all relationship from his wife.

(iv) Zihar: Where husband sane and adult compares his wife to his mother or any other female within the prohibited degrees.

b. Wife may divorce in the following manner-

Talaq-e-Tafwid (Delegated right to divorce): Talaq-e-Tafwid protects the woman’s rights. In this form of divorce a man, at the time of marriage, can delegate his right to divorce to his wife, and she can exercise it when any of the conditions of the marital contract is violated. However this could not deprive the husband of his own right to divorce his wife under certain circumstances. If a woman has right to divorce delegated to her either before or after marriage, she can separate herself from her husband by divorcing herself. The divorce considered as valid as is the husband himself has given it.

The following conditions were held to be valid and reasonable, and where there was an agreement that the wife would have the power to divorce herself if they were not fulfilled, it was held to be binding on the parties:

(a) The husband should live a respectable life and should earn and his livelihood. He should maintain his wife and should live in a house approved by her.

(b) The husband should not beat or ill-treat his wife and if he oppresses her wrongfully she will be entitled to reside at her father’s house and realize a maintenance charge from him.

(c) The husband should allow his wife to be taken to her father house 4 times a year or that if the wife be in need of going to and coming back from her father’s residence he would send her there and bring her back at his own expense.

(d) The husband would not contract a second marriage without the consent of his wife unless she be either barren or perpetually ill.

(e) The husband should pay her dower on demand and that the husband would not take any remission of dower from the wife except in the presence of her relations.

c. Divorces by Judicial Pronouncement
Lian: Where a husband charges his wife of adultery and the charge is false, the wife is entitled to sue for and obtain divorce. She must file a regular suit for dissolution of her marriage as a mere application to the Court is not the proper procedure. In Zafar Husain v. Ummat-ur-Rahman, the Allahabad High Court recognized the doctrine of lian.

d. By Mutual consent
(i) Khula: Khula or redemption literally means to lay down. In law it means laying down by a husband of his right and authority over his wife. In Mst. Balaquis Ikram v. Najmal Ikram. It was said that under the Muslim Law the wife is entitled to Khula as of right if she satisfies the conscience of the Court that it will otherwise mean forcing her into a hateful union.

(ii) Mubarat: It signifies a mutual discharge from the marriage claims. In mubarat the aversion is mutual and both the sides desire separation. Thus it involves an element of mutual consent. In this mode of divorce, the offer may be either from the side of wife or from the side of husband. When an offer of mubarat is accepted, it becomes an irrevocable divorce.

3. Legal Provisions In The Area of Divorce

3.1.The Dissolution of Muslim Marriages Act 1939


According to Section 2 of the said Act:

A woman married under Muslim law shall be entitled to obtain a decree for divorce for the dissolution of her marriage on any one or more of the following grounds, namely:-

(i) that the whereabouts of the husband have not been known for a period of four years: if the husband is missing for a period of four years the wife may file a petition for the dissolution of her marriage. The husband is deemed to be missing if the wife or any such person, who is expected to have knowledge of the husband, is unable to locate the husband. Where a wife files petition for divorce under this ground, she is required to give the names and addresses of all such persons who would have been the legal heirs of the husband upon his death. The court issues notices to all such persons appear before it and to state if they have any knowledge about the missing husband. If nobody knows then the court passes a decree to this effect which becomes effective only after the expiry of six months. If before the expiry, the husband reappears, the Court shall set aside the decree and the marriage is not dissolved.

(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years: it is a legal obligation of every husband to maintain his wife, and if he fails to do so, the wife may seek divorce on this ground.

In Mst. Amena Khatun Vs. Sheraj-uddin Sardar, the Court held that where the husband has failed to maintain his wife for more than two years in violation of the marriage contract, the wife succeeds in establishing her right to claim a dissolution of marriage. This is so even where the wife is a woman of means and is able to maintain herself.

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards: the wife’s right of judicial divorce on this ground begins from the date on which the sentence becomes final. Therefore, the decree can be passed in her favour only after the expiry of the date for appeal by the husband or after the appeal by the husband has been dismissed by the final court.

(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years: the Act does define ‘marital obligations of the husband’. There are several marital obligations of the husband under Muslim law.

(v) that the husband was impotent at the time of the marriage and continues to be so: for getting a decree of divorce on this ground, the wife has to prove that the husband was impotent at the time of the marriage and continues to be impotent till the filing of the suit. Before passing a decree of divorce of divorce on this ground, the court is bound to give to the husband one year to improve his potency provided he makes an application for it. If the husband does not give such application, the court shall pass the decree without delay. In Md. Ibrahim vs. Altafan Impotency of the husband is a good ground for dissolution of marriage. The court upon application of the husband if any should allow one year time to the husband to show that he has ceased to be impotent. If no application is filed by the husband the court shall decide the suit forthwith.

(vi) if the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease: the husband’s insanity must be for two or more years immediately preceding the presentation of the suit. But this act does not specify that the unsoundness of mind must be curable or incurable. Leprosy may be white or black or cause the skin to wither away. It may be curable or incurable. Venereal disease is a disease of the sex organs. The Act provides that this disease must be of incurable nature. It may be of any duration. Moreover even if this disease has been infected to the husband by the wife herself, she is entitled to get divorce on this ground.

(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years, provided that the marriage has not been consummated;

(viii) that the husband treats her with cruelty, that is to say,-

(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill treatment, or

(b) associates with women of ill-repute or leads an infamous life, or

(c) attempts to force her to lead an immoral life, or

(d) disposes of her property or prevents her exercising her legal rights over it, or

(e) obstructs her in the observance of her religious profession or practice, or

(f) if he has more than one wives, does not treat her equitably in accordance with the injunctions of the Holy Quran.

(ix) on any other ground which is recognized as valid for the dissolution of marriage under Muslim Law.

3.2. The Muslim Family Laws Ordinance, 1961
(a) Talaq: 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.

In the case of Abdul Aziz vs Rezia Khatoon, it was held that the non-compliance with the provisions of section 7(1) makes talaq legally ineffective. However, very recently the Appellate Division of the Supreme Court of Bangladesh in apparent contradiction to Section 7 of the Ordinance held: the petitioner husband divorced his wife by swearing an affidavit before Magistrate and accordingly sent the copy thereof to the Nikah Register in whose office the divorce was registered as required under Section 6 of the Act, 1974 and the marriage tie is in consequence stands dissolved and as such he wife is entitled to the payment of entire, dower, both prompt and deferred. He cannot take the advantage of his own wrong in respect of no service of notice to the Chairman as required under section 7 (1) of the Ordinance l961.

(2) Whoever contravenes the provision of sub-section (i) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to five thousand taka or with both.

(3) Save as in sub-section (5), a talaq unless revoked earlier, expressly or otherwise shall not be effective until the expiration of ninety days form the day on which notice under sub-section (i) is delivered to the chairman.

(4) Within thirty days of the receipt of notice under sub-section (i) the chairman shall constitute an arbitration council for the purpose of bringing about a reconciliation between the parties and the arbitration council shall take all steps necessary to bring about such reconciliation.

(5) If the wife be pregnant at the time of talaq is pronounced, talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy whichever be later ends.

(6) Nothing shall debar a wife who marriage has been terminated by talaq effective under this section from remarry the same husband without an intervening marriage with a third person, unless such termination is for the third time so effective.

Formalities necessary for remarriage: Where the husband has divorced his wife by three pronouncements, remarriage with her is possible only if the following formalities are observed:

(i) After the divorce, the wife should observe iddat;

(ii) When the period of iddat expires, she should marry another person;
(iii) The marriage should be actually consummated.
(iv) The second husband should voluntarily divorce the wife.
(v) Then the wife should observed iddat, after which remarriage with the first husband.
In the case of Editor, Daily Bangla Bazar Patrika and two others vs. District Magistrate, Naogaon, it was held that Section 7 of the Muslim Family Laws Ordinance, 1961 prescribes the procedure of divorce. “Hila’, intervening marriage with third person is not necessary in case of retaking of a divorced wife by former husband. Fatwa is declared illegal and unauthorized.

(b) Dissolution of marriage otherwise than by talaq: According to Section 8, Where the right to divorce has been duly delegated to the wife and she wishes to exercise the right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by talaq, the provisions of section 7 shall, mutatis mutandis (as near as possible), and so far as applicable, apply.

The Muslim Family Laws Ordinance 1961 provides the rules of divorce, that any person who wishes to divorce his wife should, after pronouncing 'talaq', is to inform the chairman (of Union Council) in writing as soon as possible and deliver a copy thereof to the wife. A talaq shall not be effective before the expiry of ninety days from the day of serving the notice to the Chairman. In fact, the Act makes a combination between 'talaq-e-hasan' and 'talaq-e-ahsan'. A wife on whom the right to divorce has been duly delegated and who wishes to exercise the right as per provisions of the Section 8 of the said Ordinance. These sections incorporate the provisions of two forms of Talaq-e-Sunna.

In Sayed Ali Newaz Grdezi vs. Lt. Col.Md Yusuf, the court held that the objection of section 7 is to prevent hasty dissolution of marriage by talaq, pronounced by the husband, unilaterally, without an attempt being made to prevent disruption of the matrimonial status. Sub-section 7(1) required the husband gives notice in writing of his having pronounced talaq but if the husband himself thinks better of the pronouncement of talaq and abstains from given a notice to the chairman, he should perhaps be deemed, in view of section 7, to have revoked the pronouncement that would be to the advantage to the wife. Sub-section (3) of the section precludes the talaq from being effective as such for a certain period and with the period, consequently, I could not be said that the marital status of the parties had in any way been changed.

4. Judicial Pronouncements

In Abdul Aziz vs. Rezia Khatoon case the court held that the petitioner is the present case failed to prove compliance with the provisions sub-section (1) of section 7 of the Family Law Ordinance 1961, with the consequence that the alleged talaq, if it was pronounced by him, was to effective in law, so that in the eye of law the marriage between him and the opposite party subsists. Clause 7(3) says, save as provided in sub-section (5), a talaq unless revoked earlier, express or otherwise, shall not be effective until the expiration of 90 days from the day on which notice under sub-section (1) is delivered to the chairman.

In Ataul Hoque (MD) vs. Anwar A Karim case the court held that as the notice of talaq was given on 2-3-89 to the Administrator, Dhaka City Corporation and also to the petitioner talaq has, on the expiry of days from the date of receipt of notice by the Administrator, taken effect as provided in sub-section (3) of the section of 7 of the Ordinance.

In Syaed Ali Newaz Gardezi vs. Lt. Col. Md yusuf case the court held that to effect a legal divorce, section 7(1)(3) must be complied with- The question arose what are the deed of divorce, even if held be genuine, would operate as a valid divorce under the Shia Law and further in view of the fact that the alleged divorce has been taken place on 16-11-61, whether the marriage of the divorced woman alleged to have been held on 2-12-62 was valid under provision of section 7 of the Ordinance. Clause 7(4) within 30 days of the receipt of the notice under sub-section (1), the Chairman shall constitute an Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.

In Syed Ziauddin vs. Parvez Sultana, Parvez Sultana was a science graduate and she wanted to take admission in a college for medical studies. She needed money for her studies. Syed Ziaudddin promised to give her money provided she married him. She did. Later she filed for divorce for non-fulfillment of promise on the part of the husband. The court granted her divorce on the ground of cruelty. Thus we see the court’s attitude of attributing a wider meaning to the expression cruelty. In Zubaida Begum vs. Sardar Shah, a case from Lahore High Court, the husband sold the ornaments of the wife with her consent. It was submitted that the husband’s conduct does not amount to cruelty.

In Aboobacker vs. Mamu koya, the husband used to compel his wife to put on a sari and see pictures in cinema. The wife refused to do so because according to her beliefs this was against the Islamic way of life. She sought divorce on the ground of mental cruelty. The Kerela High Court held that the conduct of the husband cannot be regarded as cruelty because mere departure from the standards of suffocating orthodoxy does not constitute un-Islamic behaviour.

In Itwari vs. Asghari, the Allahabad High Court observed that Indian Law does not recognize various types of cruelty such as ‘Muslim cruelty’, ‘Hindu cruelty’ and so on, and that the test of cruelty is based on universal and humanitarian standards; that is to say, conduct of the husband which would cause such bodily or mental pain as to endanger the wife’s safety or health.

5. Judicial Actions Against Arbitrary Use of Divorce

The Supreme Court of India through a judgement dated 1st October, 2002 in Shamim Ara vs State of UP, has laid the issue to rest by stating that talaq must be for a reasonable cause, and that it must be proved. A summary of the principles laid down by the judiciary with regard to husband's right to unilateral arbitrary divorce are as follows:

(a) Plea taken in a reply to the maintenance claim filed by the wife does not constitute divorce;

(b) A mere statement in writing or in oral disposition before the court regarding the talaq having been effected in the past is not sufficient to prove the fact of divorce;

(c) An oral talaq, to be effective, has to be pronounced;

(d) It is mandatory to have a pre-divorce conference to arrive at a settlement. This mediation should be in the presence of two mediators, one chosen by the wife & the other by the husband;

(e) If wife disputes the fact of talaq before a court of law, all the stages of conveying the reasons for divorce, appointment of arbitrators, conciliation proceedings for reconciliation between the parties by the arbitrators and failure of such proceedings are required to be proved;

(f) A Muslim husband cannot divorce his wife at his whims and caprice; and

(g) The husband must also prove that there was a valid ground for divorcing the wife.

6. Effect of Divorce

(a) Cohabitation becomes illegal between the couple;
(b) Dower becomes payable to the wife.
(c) The husband and the wife are entitled to inheritance from the other, if either of them dies during iddat following a revocable;
(d) The wife becomes entitled to maintenance during the period of iddat;
(e) Remarriage between the couple is only possible after observing a strict procedure; Remarriage with another man can be contracted by the widow after observing iddat only.

7. Conclusion
Divorce of course, a social evil in itself, but it is a necessary evil. It is better to wreck the unity of the family than to wreck the future happiness of the parties by binding them to a companionship that has become odious. That’s why Quran permits divorce partly because to enable men to get rid of an odious union. It is argued that Islam has given unfettered power to the husband to give divorce to his wife without any cause. But experience shows that greater suffering is endangered by the husband’s withholding divorce than by his irresponsible exercise of this right. There is no doubt that Muslim women have recourse to the courts to challenge arbitrary unilateral talaq, and hence arbitrary talaq becomes a non-issue if recourse to law is taken. However, many women are unable to take recourse to law due to lack of awareness, poverty, illiteracy, financial implications of litigation and community opposition against such a move.

End-Notes
# Abdul Karim vs Salema, 1886, 8, Allahabad, 149
# Asaf A A Fyzee, Outlines of Muhammadan Law, 4th edition Oxford University press, 1974, page.152.
# AIR (1999), All, 182
# 2(1959), WP, 321
# Aqil Ahmed. Mohamadan Law, 21st ed. (Allahbad: Central Law Agency, 2004), pp.184-86.
# Section 2 of the Dissolution of Muslim Marriages Act, 1939
# 17 DLR 687
# AIR 1925(All) 24
# Section 7 & 8 of the Muslim Family Laws Ordinance, 1961
# 21 DLR (1969) 733
# Ibid
# 6 MLR (2001) HC 1
# 15 DLR (SC) 9
# 21 DLR 733
# 4 BLC (AD) 190
# 15 DLR (SC) 9
# 4 BLC (AD) 190
# (1943) 210 IC 587.
# (1971) KLT 663.
# AIR (1960), All, 684.
# AIR(1945), Lah, 51.
# http://bdlaws24.blogspot.com/2012/02/divorce-law-in-bangladesh.html, Available at: 12.01.2017.
# 7(2002), SCC, 518.

 




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