Marriage is the very foundation of civil society and no part of the laws and institutions of a country can be more vital importance to its subjects than those which regulate the manner and conditions of forming and, if necessary, of dissolving, the marriage contract.
Firm union of the husband and wife is a necessary condition for a happy family life. Islam therefore, insists upon the subsistence of a marriage and prescribes that breach of marriage contract should be avoided. Initially no marriage is contracted to be dissolved but in unfortunate circumstances the matrimonial contract is broken. One of the ways of such dissolution is by way of divorce. Under Muslim law the divorce may take place by the act of the parties themselves or by a decree of the court of law.
However in whatever manner the divorce is effected it has not been regarded as a rule of life. In Islam, divorce is considered as an exception to the status of marriage. The Prophet declared that among the things which have been permitted by law, divorce is the worst. Divorce being an evil, it must be avoided as far as possible. 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. 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.
It is sometimes suggested that the greatest defect of the Islamic system is the absolute power given to the husband to divorce his wife without cause. The reforms of Mohammed marked a new departure in the history of Eastern legislation. He restrained the power of divorce possessed by the husband; he gave to the women the right of obtaining a separation on reasonable grounds; and towards the end of his life he went so far as practically to forbid its exercise by the men without the intervention of arbiters or a judge. Prophet dislikes it most because it prevented conjugal happiness and interfered with the proper brining up the children.
In Bangladesh at a present days the Divorce has become an issue dealing with all legal attempts at all its three stage; before Divorce Notice, at the statutory period of 90 days and after expiry of statutory period.
Divorce is the only legal way for terminating a Marriage other than act of God having its wide impact for a long sometimes even for life of not only the concern parties but the peoples connected with the immediate-past family. Simply divorce gives birth of many issues mostly legal issues consequently legal proceedings in different courts and the divorce lawyers/ divorce attorneys are the faithful and confident friend to the peoples for safe way out from such complications. In Bangladesh at the present days divorce has its non-comparable proposition for either side of the separating couples which is not an outcome of the law or rules for Divorce itself but for some irrelevant issues.
The law and provisions for divorce as stated in the Muslim Family Law Ordinance, 1961 is the only codified law in Bangladesh dealing with the Muslims only. For the peoples of other religion like Christian and Buddhists there are different rules and laws but for the Hindus still there is no codified law in Bangladesh. The rules for marriage and divorce has been regulated by the legislative enactment proclaimed on considering as well as taking the personal laws on account for the Muslims called Shariah Ain. In the western world for divorce or separation the parties need lawyers or attorneys but so far in Bangladesh the parties do not always want to hire lawyers for divorce. Considering the economical and social aspect of Bangladesh it is still a long way far from the mutual separation or divorce like the first world though there is already law for mutual divorce.
Naturally when one party wants to separate from his/her partner in a very few cases the other party accepts the same which turns into a relation obviously not anything positive and then the party having passive part in divorce tried to stop the separation. In Bangladesh the Divorce Lawyers have been asked a very common question before starting divorce process is whether his partner can file a criminal case against him or not. Giving divorce to his partner is a statutory right of the husband recognized in laws and the same is an unconstrained right.
As a matter of fact in 90% cases where the husband served notice for divorce his partner/wife after being informed about the Divorce Notice initiated a criminal case against the notice sender and in all cases they didn’t admit about the Notice by showing a date of occurrence before the date of notice. Most of the time the criminal cases have been filed before the learned Magistrate who sends major portion of cases to the concerned Police Stations with a direction for taking legal steps after inquiry or to record the same as First Information Report (FIR). The sufferers who are implicated such false cases under some common sections of Acts 1980 and 2000 for example section 3 / 4 of Act 1980 and section 11 of Act 2000 a single allegation of demanding dowry by the Notice sender Husband.
The process of divorce is very simple in Bangladesh just in three steps to divorce for both Husband and Wife (When power of giving Divorce has been delegated in the Kabin) wanting separation:
i. Give Notice in writing;
ii. Face the Arbitration Board (Appeared or not don’t matter); and
iii. After expiry of 90 days take a registration certificate from a registered Nikah Registrar (Kaji).
Giving notice for divorce is itself a presumption that the Dower Money (Mohrana) has been paid in full but the fact is different as in most of the cases it has been revealed that portion or entire Den-mohr is unpaid and then it is the duty of the divorce lawyers to ensure payment of dower before completion of Divorce. One thing is also important at the time of initiating divorce process that is to inform the client about paying three months maintenance (Iddat) to the wife and other maintenance for the children, in this regard to avoid court proceedings the lawyer should have to communicate with the notice receiver side and all through try for negotiate all these monetary issues. For the wife above said three steps are applicable for divorce but practically and legally she is not in a position to pay any Dower Money to her Notice receiver Husband though she will be responsible for maintenance of her minor children.
Finally it is to be said that the process of divorce is merely an official process guided by the Ordinance, 1961 but for smooth and safe ending of divorce process the person should have been advised to contact with your lawyer or an experienced Kaji but before starting such process make yourself sure that Divorce is the only and last way available for you to get rid.
On the other hand, A Muslim man can marry of a Christian Woman; But a Muslim woman cannot do that. She cannot marry without a Muslim legally. Under the Muslim Family Laws Ordinance 1961, a man can marry more than one by the permission of the Arbitrary Council. But a Woman cannot do this. It is not only illegal But also serious offence.
The same procedure for divorce has also been made applicable to 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 talak-us- sunnat viz. talak Ahsan and talak Hasan.
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. Under such conditions the power to release herself is the surest safeguard for the wife. No system of law can produce material happiness, but humane laws may at least alleviate sufferings. And when marital life is wrecked, the home utterly broken up by misunderstanding, jealousy, cruelty, infidelity, what greater boon can a spouse have to secure his/her liberty.
Divorce of course, a social evil in itself, but it is a necessary evil. It is better to destroy the unity of the family than to destroy 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 has shown in the dissertation that the judiciary has taken efforts to curb the practice of arbitrary, unilateral pronouncement of divorce by Muslim husbands, and affirmed the right of the woman to challenge such a divorce. 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. How can the judgments impact women’s lives, when women themselves, and the communities they live in, believe that they have been legally divorced? The challenge then is to educate women living in communities about the legal position and enable their access to law, as well as to promote community awareness and acceptance of the law as stated through judgments.
Writer : P.M. SERAJUL ISLAM
(The writer is a publisher and editor of law related daily ‘Shomoyer Digonto’ and is PhD researcher, columnist and human rights activist, lawyer in Bangladesh supreme court, & District Court of Kushtia.)
E-mail: email@example.com, Mobile: 01716-856728.