Divorce Under Muslim Laws in Bangladesh by Shawline Hossain LL.B
In Islamic law, marriage is a legal and social contract between a man and woman. Marriage is an act of Sunnah in Islam and is strongly recommended; the age of marriage being whenever the individuals feel ready, financially and emotionally.
Muslim law is based on the idea of saving marriage rather than ending it. But in some occasions this evil becomes a necessity, because when it is impossible for the parties to the marriage to carry on their union with mutual affection and love then it is better to allow them to get separated than compel them to live together in an atmosphere of hatred and disaffection. One of the ways to end marriage tie is Divorce. The basis of divorce in Islamic law is the inability of the spouses to live together rather than any specific cause or guilt of a party on account of which the parties cannot live together.
Dissolution of Marriage Under Muslim Law:
Under the Muslim Law a marriage is dissolved either by the death of the husband or wife, or by divorce. After the death of a wife, the husband may remarry immediately. O the other hand, if husband dies, Wife cannot remarry before a certain specified period called Iddat (90 days) expires.
Extra Judicial Divorce
Extra judicial divorce is when it is depend upon the will of husband or wife or when it is by mutual agreement. There are different rights provided to wife and husband. Generally rights to give divorce are given to husband only, wife are at very lower pedestal regarding right to divorce, but under Dissolution of Muslim Marriage Act, 1939, wife has also been provided with some rights. Extra- judicial divorce is divided into several parts:
By Husband- Talaq, Ila and Zihar.
By Wife- Talaq-i-tafweez, Lian.
By Mutual Agreement- Khula and Mubarak.
In Muslim Law it means freedom from the bondage of marriage and not from any other bondage. In legal sense it means dissolution of marriage by husband using appropriate words. In other words talaq is repudiation of marriage by the husband in accordance with the procedure laid down by the law.
The absolute power of a Muslim husband of divorcing his wife unilaterally, without assigning any reason, literally at his whim, even in a jest or in a state of intoxication, and without recourse to the court, and even in the absence of the wife, is recognized in modern India. All that is necessary is that the husband should pronounce talaq; how he does it, when he does it, or in what he does it is not very essential.
No specific formula or use of any particular word is required to constitute a valid talaq. Any expression which clearly indicates the husband’s desire to break the marriage is sufficient. It need not be made in the presence of the witnesses.
1. Talaq-i-sunnat: It is considered to be in accordance with the dictator of prophet Mohammad. It has two forms:
Ahasan: It consists of a single pronouncement of divorce made in the period of tuhr (purity, between two menstruations), or at any time, if the wife is free from menstruation. Husband must abstain himself from intercourse for the period of iddat. Resumption of sexual intercourse before the completion of period of iddat also results in the revocation of divorce.
Hasan: In this the husband is required to pronounce the formula of talaq three time during three successive tuhrs. When the last pronouncement is made, the talaq, becomes final and irrevocable
2. Talaq-i-biddat: Instantaneous divorce, or triple talaq, that was struck down by Supreme Court.
ILA: In Ila, the husband takes an oath not to have sexual intercourse with his wife. Followed by this oath, there is no consummation for a period of four months. After the expiry of the fourth months, the marriage dissolves irrevocably. But if the husband resumes cohabitation within four months, Ila is canceled and the marriage does not dissolve.
ZIHAR: In this mode the husband compares his wife with a woman within his prohibited relationship e.g. mother or sister etc. The husband would say that from today the wife is like his mother or sister. After such a comparison the husband does not cohabit with his wife for a period of four months. Upon the expiry of the said period Zihar is complete. After the expiry of fourth month the wife has following rights:
• She may go to the court to get a decree of judicial divorce.
• She may ask the court to grant the decree of restitution of conjugal rights.
Under traditional Sharia Law, a Muslim woman cannot dissolve her marriage without the consent of the husband. The Muslim husband is free to delegate his power of pronouncing divorce to his wife or any other person. He may delegate the power absolutely or conditionally, temporarily or permanently. A permanent delegation of power is revocable but a temporary delegation of power is not. This delegation must be made distinctly in favour of the person to whom the power is delegated, and the purpose of delegation must be clearly stated.
It should be noted that even in the event of contingency, whether or not the power is to be exercised, depend upon the wife she may choose to exercise it or she may not. The happening of the event of contingency does not result in automatic divorce.
If the husband levels false charges of un-chastity or adultery against his wife, then this amounts to character assassination and the wife has got the right to ask for divorce on these grounds. Such a mode of divorce is called Lian.
=>By Mutual Agreement
A Muslim women has a right to ask for divorce if she does not desire to live with her husband even where he is not at fault. Once a Khula has been accepted by the husband and affected, the husband has no power to cancel it on the ground that the consideration has not been paid and his remedy is to sue the wife for it.
Mubarat is also a form of dissolution of marriage contract. 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 mubarat is accepted, it becomes an irrevocable divorce ( talaq-ul-bain) and iddat is necessary.
Dissolution of Muslim Marriages Act 1939:
Section 2 of the Act runs there under:
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:-
• 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. Section 3 provides that 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.
• 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. A husband may not maintain his wife either because he neglects her or because he has no means to provide her maintenance. In both the cases the result would be the same. The husband’s obligation to maintain his wife is subject to wife’s own performance of matrimonial obligations. Therefore, if the wife lives separately without any reasonable excuse, she is not entitled to get a judicial divorce on the ground of husband’s failure to maintain her because her own conduct dis-entitles her from maintenance under Muslim law.
• 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.
• 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’. But for the purpose of this clause husband’s failure to perform only those conjugal obligations may be taken into account which are not included in any of the clauses of Section 2 of this Act.
• 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 an application, the court shall pass the decree without delay.
• 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 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.
• That she, having been given in marriage by her father or another 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;
• That the husband treats her with cruelty i.e; habitually assaults her or makes her life miserable, leads an infamous life, or attempts to force her to lead an immoral life, or disposes of her property or prevents her from exercising her legal rights over it, or obstructs her in the observance of her religious profession or practice, or if he has more than one wives, does not treat her equitably in accordance with the injunctions of the Holy Quran.
•On any other ground which is recognized as valid for the dissolution of marriage under Muslim law:
Divorce under Muslim Family Laws Ordinance, 1961
As per the provisions of sec-7 of the Muslim Family law Ordinance:
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. Within 30 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. But, if the wife is pregnant at the time talaq is pronounced, talaq shall not be effective until the period of 90 days or the pregnancy, whichever is later.
It is to be added further that 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. In addition, as per section 8, when a talaq is effected not by the husband but by the wife in the exercise of the right delegated to her by her husband, it is known as talaq by tafweez and such talaq is applicable in the same manner prescribed in section 7 of such Act.
Registration of Divorce:
A Marriage Registrar may register a divorce effected under Muslim Law within his jurisdiction on the application being made to him for such registration. An application for registration of divorce shall be made orally by the person or persons who have or have effected the divorce.
Moreover, The Marriage Registrar shall not register a divorce of the kind known as Talaq-i-tafweez except on the production of a document registered under the Registration Act, 1908 (XVI of 1908), by which the husband delegated the power of divorce to the wife or of an attested copy of an entry in the register of marriages showing that such delegation has been made. Registration is being mandatory rules nowadays in Bangladesh.
Maintenance of Wife:
Usually, assuming her husband demands a divorce, the divorced wife keeps her dower (mahr), both the original gift and any supplementary property specified in the marriage contract. She is also given child support until the age of weaning, at which point the child’s custody will be settled by the couple or by the courts.
Muslim personal law recognizes wives’ right to maintenance during marriage, but upon divorce, maintenance is provided for only 90 days from the date of official notice, or if the wife was pregnant at the time of divorce, until the birth of the child. Spousal maintenance can be paid for a fixed term (which might need to be extended) e.g. until the youngest child reaches 18 or for life e.g. until one or the other dies. It can even extend beyond the death of the payer if that maintenance has been secured.
Legal Divorce in Bangladesh:
For those that have few alternatives to seeking a divorce or dissolution of a marriage, it is important to hire a lawyer to help with these procedures. A legal representative may find an Act or other law that could apply to the situation to seek a legal divorce and ensure the marriage is dissolved without violating the law.