Divorce Law in Bangladesh Dissolution of Muslim Marriage: On the Judicial Responses to Curb the Arbitrary Exercise of Divorce ( source ; internare)
Divorce Law in Bangladesh
Dissolution
of Muslim Marriage:
On the Judicial Responses to Curb the Arbitrary Exercise of Divorce
( source ; internare)
Introduction
“With Allah, the most detestable of all things permitted is divorce”
Prophet Mohammed (PBUH)
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.[1]
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.[2]
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.[3] Prophet (PBUH) dislike it most
because it prevented conjugal happiness and interfered with the proper brining
up the children.
Classification of Dissolution of Marriage
2.1
Modes of Divorce
A
husband may divorce his wife by repudiating the marriage without giving any
reason. Pronouncement of such words which signify his intention to disown the
wife is sufficient. Generally this done by talaaq. But he may also divorce by
Ila, and Zihar which differ from talaaq only in form, not in substance. A wife
cannot divorce her husband of her own accord. She can divorce the husband only
when the husband has delegated such a right to her or under an agreement. Under
an agreement the wife may divorce her husband either by Khula or Mubarat.
Before 1939, a Muslim wife had no right to seek divorce except on the ground of
false charges of adultery, insanity or impotency of the husband. But the
Dissolution of Muslim Marriages Act 1939 lays down several other grounds on the
basis of which a Muslim wife may get her divorce decree passed by the order of
the court.
There
are two categories of divorce under the Muslim law:
1) Extra judicial divorce,
1) Extra judicial divorce,
2)
Judicial divorce
The category of extra judicial divorce can
be further subdivided into three types, namely,
•
By husband- talaaq, ila, and zihar.
•
By wife- talaaq-i-tafweez, lian.
•
By mutual agreement- khula and mubarat.
The second category is the right of the
wife to give divorce under the Dissolution of Muslim Marriages Act 1939.
2.2 Divorce Given by the Husband
2.2.1 Definition of talak
Under Muslim
law ‘talak’ means ‘freedom’. The right of giving freedom by her husband from
marriage to wife is called ‘talak, According to Heyadaya[4] it means relinquishment. The right
of enforceable by the husband only.[5] Asaf A. A. Fyzee said, “In law, it signifies the absolute power which
the husband possesses.” A husband who is sound mind and adult can divorce his
wife without showing any cause .Though to give divorce is so hated and a
heinous act but recognized by law. Talak is an act of repudiation of marriage
by the husband in exercise of his power which has been conferred on him .The
term divorce includes all separation originating from the husband and
repudiation for the talak in the limited sense ,namely of separation effected
by use of appropriate word.[6] A separation occurs when a married couple decides they no longer want to
live together, but decide to live apart for a while.
2.2.2 Talaq Ahsan
Talaq ahsan
is effected when the husband pronounces one divorce during a tuhr in which
cohabitation has no taken place between the parties, and then abstains from
cohabitation during the iddat. The talaq becomes irrevocable at the end of the
period of iddat.[7] But during that period the husband
can take back his wife at any time. When the woman is not subject to courses
the talaq can be pronounced even after cohabitation. The divorce becomes
irrevocable only on the completion of iddat which is three periods, and when
the woman is not subject to periods it is three months. When the woman is
pregnant the iddat comes to an end on the delivery of the child or three
months, whichever is later.
2.2.3 Talaq-i-hasan
Talaq-i-hasan
is effected when the husband repudiates his wife during a thur in which he has
not had carnal connection with her, and then repeats the repudiation during the
next two thurs. The third repudiation or pronouncement makes the divorce final
and irrevocable; Imam Malik does not consider it a talaq-us-sunna.
2.2.4 Talaq-i-biddat
Talaq-i-biddat
is effected by pronouncing talaq thrice during the some thur, or in pronouncing
the formula of talaq once with the condition that it should be considered to
have been said thrice. As when the husband say “I divorce thee thrice.” It is
immediately effective and irrevocable.
Talaq-i-bidaat is the most common and prevalent mode
of divorce in Inida and Pakistan. It is not prohibited even during the woman’s
courses. This form of talaq is not recognized by Shia law.
2.2.5 Ila
IIa is
effected when the husband swears that he would not have intercourse with his
wife for a period not less than four months. If he does not have intercourse
for that period the marriage is dissolved without legal proceedings. If the
husband returns to the wife within the period specified in the ila, the ila
would come to an end but he would be liable to expiation.
According to ithna Ashari and Sahfei School, the wife
is entitled to apply to the Court for passing a decree dissolving the marriage.
In Sunni Law, legal proceedings are not required.
In Bibi Rehana v. Iqtidar-uddin[8] after the marriage ceremony was
over, the parents of the boy pushed him into a room where his wife was waiting
for him. It appears from the facts of the case that the husband was not
interested in the marriage. Immediately after entering into the room he took a
vow in the presence of his wife that he would never have sexual intercourse
with her. Soon after living this statement he came out of the room and repeated
the vow in the presence of his mother and his mother’s sister. His father then
came out of another room and he once more repeated that vow. The Court refused
to accept the version of the husband. The Court said that the husband has
failed to establish that there had been a divorce in the ila form.
2.2.6 Zihar
(injurious assimilation)
“If the
husband (who is sane and adult) compares his wife to his mother or any
other female within a prohibited degree, the wife has a right to refuse herself
to him until he has performed penance. In default of expiation by the penance,
the wife has a right to apply for a judicial divorce (Mulla).
2.3 Divorce
by Mutual Agreement
2.3.1 Khula (divorce at the request of wife)
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.[9] 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. [10]
Khula has been aptly defined by Their Lordships of the
Judicial Committee in Moonshee-Buzlu-ul-Raheem v. Lateefutoonissa. A divorce by khula is a divorce
with the consent and at the instance of the wife, in which she gives or agrees
to give a consideration to the husband for her release from the marriage tie.
It signifies an arrangement entered into for the purpose of dissolving a
connubial connection in liu of compensation paid by the wife to her husband out
of her property. Khula in fact is thus a right of divorce purchased by the wife
from her husband.
It should be noted that there was no Khula in
pre-islamic legislation. The basis for Khula is an injunction in Quran which
reads as under:
“Then if you
fear that hey cannot keep within the limits of Allah. There is no blame on them
for what she gives to become free thereby”.
In connection with the validity of Khula, the case of
Jamila the wife of Thabit-b. Qays-b. Shams form the basis of legislation. This
incident, as the basis of the validity of Khula, has been referred to by most
of the traditionalist Hazrat Imam Bukhari has reported through Hazrat Ibn Abbas
that one day the wife of Thabit b. Qays appeared before the Prophet and
Presented her complaint in the followings words:
‘O’ messenger of Allah nothing can ever unite his (Thabit)
head with mine (Thabit) head with mine (Jameela). When I raised my veil I saw
him coming in the company of a few men. I saw that he was blackest, the
shortest and the worst appearance of them all. By Allah I do not dislike him
because of defects in his faith or morality. I just hate his ugly looks. By God
if I did not fear Allah, I would have spit on his face when he came near me.
‘O’ Messenger of Allah’ you can see how beautiful I am while Thabit is an ugly
man”. I do not blame him for any depravity in his religious practice or
morality, but I fear that I may be guilty to transgression of injunctions of
Islam.
The messenger of Allah heard her complaint and
observed:
“Will she
return him the garden which Thabit had given to her.” She replied. “O yes,
Messenger of Allah, I shall give him even more if he demands more. The
Messenger of Allah (PBUH) observed: “No not more, just return him his garden.
He (Holy Prphet) then ordered: “Thabit, take back the garden and divorce her
which he did.”
Once a case of husband and a wife was brought before
Hazrat Umar. he admonished the woman and advised her to stay with her husband
but she refused. Thereupon he shut her in a room full of rubbish. She was taken
out after three days and Hazarat Umar asked her how she was. She replied. By
Allah, “She had real comfort in these nights”. Hearing this, Umar ordered her
husband to give her Khula even though it might be in the exchange of her
earrings”.
Under the Shia Law the parties can dissolve their
marriage by way of mubarat if it is impossible for them to continue marriage
tie.
2.3.2 Mubarat (divorce by mutual agreement)
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:
2.4 Divorce
given by Wife
2.4.1 Talaaq-i-tafweez
Talaaq-i-tafweez
or delegated divorce is recognized among both, the Shias and the Sunnis. 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. The power of talaaq may be delegated to his
wife and as Faizee observes, “this form of delegated divorce is perhaps the
most potent weapon in the hands of a Muslim wife to obtain freedom without the
intervention of any court and is now beginning to be fairly common in India”.
This form of delegated divorce is usually stipulated in prenuptial agreements.
In Md. Khan v. Shahmali [11], under a prenuptial
agreement, a husband, who was a Khana Damad, undertook to pay certain amount of
marriage expenses incurred by the father-in-law in the event of his leaving the
house and conferred a power to pronounce divorce on his wife. The husband left
his father-in-law’s house without paying the amount. The wife exercised the
right and divorced herself. It was held that it was a valid divorce in the
exercise of the power delegated to her. Delegation of power may be made even in
the post marriage agreements. Thus where under an agreement it is stipulated
that in the event of the husband failing to pay her maintenance or taking a
second wife, the will have a right of pronouncing divorce on herself, such an
agreement is valid, and such conditions are reasonable and not against public
policy . 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.
2.5 Divorces
by Judicial Pronouncement
2.5.1 Lian (fales charge of adultery)
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[12], the Allahabad High Court
recognized the doctrine of lian. In this case the wife of the plaintiff alleged
that her husband had stated before several persons that she had illicit
intercourse with her brother and imputed fornication to her. It was argued that
the law of lian had no lace in Anglo Mohammedan Law and must be considered
obsolete. This argument was rejected. It was held that Qazi of the Muslim Law
was replaced by the Court. It was held that a Muslim wife is entitled to bring
a suit for divorce against her husband and obtain a decree on the ground that
the latter falsely charged her with adultery. [13] Mere charge levied by the husband
will not automatically dissolve the marriage. The wife has to apply to the
Court for the dissolution of her marriage.
In Jauri Beebee v. Sheikh Moonshee Beparee[14], it was said that the charge
of adultery of the wife made by the husband could not be the ground of divorce
by the wife.
It has been argued that in India the doctrine of lian has
become obsolete. But this is not true. In Nurjahan Bibi v. Mohd. Kazim Ali[15], it was said by Bhattacharya, J. that the doctrine of
lian or jaan has not become obsolete. A Muslim wife can bring a suit for
divorce against her husband on the ground that her husband has charged her with
adultery falsely. According to Muslim Law the wife is entitled to a divorce if
the husband makes false charge of adultery against the wife. [16]
Legislative Reforms in the
Area of Divorce
3.1 Dissolution of Muslim Marriages Act
1939
Qazi
Mohammad Ahmad Kazmi had introduced a bill in the Legislature regarding the
issue on 17th April 1936. It however became law on 17th March 1939 and thus
stood the 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 disentitles 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. 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.
• 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. But for the purpose of
this clause husband’s failure to perform only those conjugal obligations may be
taken into account which is 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 application, the court
shall pass the decree without delay. In Gul Mohd. Khan v. Hasina the wife filed
a suit for dissolution of marriage on the ground of impotency. The husband made
an application before the court seeking an order for proving his potency. The
court allowed him to prove his potency.
• 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.
• 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;
•
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.
(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.
3.2 Divorce
under Muslim Family Laws Ordinance, 1961
From a comparison
of forms of talaq it appears that under S. 7 the Ordinance has enforced in
Pakistan a kind of talaq which is in consonance with talaq-i-ahasn and
talaq-i-hasan. In the case of Talaq-i-ahsan the divorce becomes irrevocable
after the period of iddat, and in case of talaq-i-hasan it becomes irrevocable
on pronouncement for the third time in the third tuhr after the first
pronouncement. Thus the least period after which a talaq becomes irrevocable
according to Talaq-us-Sunna, i.e. approved form of divorce, is approximately 90
days. In this sense there has been no change in Muslim Law. On the other hand
it has been consolidated and enforced by the Ordinance. The only form affected
by the Ordinance is the Bedai form which becomes effective immediately after it
is either uttered orally or written down on a price of paper of on something
else from which it can be deciphered. Now even a talaq in that form win become
effective after the expiry of 90 days.
As per the provisions of sec-7 of the Muslim Family
law Ordinance:
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.
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.
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.
Delegated Power of Divorce by
the Wife
4.1 Talaq-e-tafweez
The doctrine
of ‘tafweez’ or delegation of power is an important topic of the Muslim Law of
divorce. A husband may, either himself, repudiate his wife or delegate this
power of repudiating her to a third party, or even to his wife. Such a
delegation of power is called tafweez. [17] An agreement made either before or after the marriage providing that the
wife would be at liberty to divorce herself from her husband under certain
specified conditions such as in case the husband marries a second wife or fails
to maintain her for a specified period, is valid, provided first, that the
option is not absolute and unconditional and secondly, that the conditions are
reasonable and not opposed to public policy.
In Mohd. Khan v. Mst. Shahmali[18] there was pre nuptial agreement
according to which the defendant agreed to live in the plaintiff’s parental
house and if he would leave that house, he would pay certain specified sum to
the plaintiff in default of which the condition would operate as divorce. It
was held that the condition was not unconscionable and opposed to public
policy, violation of such term would operate as divorce between the husband and
wife.
The wife exercising her power under the agreement must
establish that the conditions entitling her to exercise the power have been
fulfilled. In such cases, the mere happening of the contingency is not
sufficient, the wife must clearly establish first that events entitling her to
exercise her option have occurred, and secondly, that she actually exercised
her option.
It is noteworthy that in case of talaq-e-tafweez, the
wife does not divorce her husband and this she cannot do under Muslim Law but
divorce herself on behalf of the husband under his power delegated to her by
him. Under the Muslim Law, when under the contract the wife is empowered to
divorce herself in specific contingencies which she exercises at the happening
to any of them, the divorce will take effect to the same extent, as if it has
been pronounced by the husband. It does not require any declaration from a
Court of law.
The Court held that the power to give divorce which
primarily belongs to the husband may be delegated to his wife either absolutely
or conditionally. Since this is not prohibited by the personal law of the
parties therefore it is quite open to her to divorce herself. The Court further
held that the wife in the instant case was very much a divorced woman when she
dissolved her marriage by virtue of authority delegated to her and executed a
divorce deed before the Muslim Marriage Registrar and Kazi and it cannot be
said that the marriage was still subsisting as no specified contingencies had
taken place.
4.2 Valid
and reasonable conditions
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:- [19]
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 fathers 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.
4.3
Talaq-i-tafwid and stipulations in a Muslim marriage contract
In order to
come within this exception, the contract must be in writing and registered.
Given the possibility that the contract may be liable to impeachment on the
grounds of lack of consideration, it is obviously advisable that any contract
between the spouses executed some time after the marriage be registered under
the Registration Act. Such a course would have the affect of avoiding altogether
or at least greatly simplifying litigation should the husband attempt to avoid
the contract subsequently.
In this case, however, the Court held that the
agreement between the spouses had been executed as a means of compromising a
suit for restitution of conjugal rights and the wife’s surrender of her
defenses in that suit constituted sufficient consideration to validate the
contract. Second wife in the presence of the first. But since such a contract
can neither prevent the husband from marrying another wife nor render such a
subsequent marriage invalid, the High Courts have refused to hold that the
contract was one in restraint of marriage. The importance of such a contract is
in defining the rights of the first wife should the husband break the agreement
and marry again. “Public policy” -- which undoubtedly covers a broad and vague
legal terrain – is probably the most important of these three concepts in the
context of litigation on marriage contracts and contracts between husband and
wife, simply because it continues to live on while the other two have been more
or less securely laid to rest by the case-law accumulated to date. Courts of
the subcontinent are, however, no more anxious to decide cases on the basis of
“public policy” than are the English Courts.12 Repelling a “contrary to public
policy” argument in 1929, the Lahore High Court,
In Muhammad Ali Akbar v. Fatima Begum[20] quoted Lord Davey’s remarks in Janson v. Driefontein Consolidated
Mines, Ltd[21] as “Public policy is always an
unsafe and treacherous ground for legal decision.”Four years later the same
Court considered an agreement between a husband and his wife whereby the
husband agreed that should he take a second wife, the first wife would be
entitled either to exercise the delegated power oftalaq or to reside separately and receive
a monthly allowance of Rs.75. The Lahore High Court upheld the
contract and observed: An agreement such as… that signed by the
husband is permitted by Mohammedan law and it certainly cannot be said to be
opposed to public policy. I am unable to see anything “monstrous” or mad
in the deed which, in
my opinion,
was a reasonable one for a husband to execute in favour of a wife who looks for
treatment such as emancipated Indian women naturally consider they have a right
to insist upon. (Mst. Sadiqa Begum v. Ata Ullah)[22]
In the result, and in spite of the sophistry of legal
argument not infrequently advanced on behalf of litigants, the basic criterion
for ascertaining the legal validity of contracts of the nature under discussion
is “reasonableness,” and the Courts of the subcontinent have demonstrated a
marked reluctance to hold Muslim marriage contracts or contracts between Muslim
husband and wife “unreasonable.”
4.4
Revocability
A delegation
of authority to pronounce talaq, as mentioned previously, is not revocable. The
question here is of the power of the husband to revoke the talaq pronounced by the recipient of that
authority. It is probably not without significance that the examples found in
the Hanafi texts of delegations of authority to pronounce talaqmade at the time of marriage (i.e.,
in the actual exchange of consents) and in pre- and post-nuptial contracts
generally appear to involve the use of an” ambiguous” expression, which (as
translated) refers to placing the business of the wife in her hands. The
significance of this is that the talaq renounced under such authority is
irrevocable. Interestingly, Maliki texts explicitly declare that talaq-i-tafwid, pronounced by a wife
empowered so to act by her marriage contract andwhose marriage has been
consummated, results in an irrevocable talaq.
4.5
Ambiguous and express delegations
As might be
expected, the Hanafi texts discuss a variety of ways in which the delegation of authority to
pronounce talaq may be made and the effects of the different
formulations. As a general proposition, if thewords of delegation do not employ
the word “talaq” (or one of its grammatical variations), the
pronouncement by the wife (or other recipient of the delegation) results
in an irrevocable talaq, if talaq were what the husband intended in using
the words he did. On the other hand, if the word “talaq” (or one
of its grammaticalvariations) were used in making the delegation, the talaq
pronounced under the delegated authority is revocable (by the
husband) -- unless the husband in making the delegation had
authorized the pronouncement of a talaq bain (irrevocable) or a triple talaq, and
the pronouncement were made in these terms. (The person empowered by the
delegation may make a pronouncement of lesser impact than allowed by
the terms of the delegation, but may not exceed the authority
delegated.
There are also in the Hanafi texts, illustrations of
four distinct situations in which a delegation of the right to pronounce talaq
may be made.
4.5.1 Casual delegations
Most of the
examples in the texts are of what might be termed “contemporaneous” or “casual” (as
opposed to “contractual”) delegations. The delegation is made in the course of a
conversation between the spouses or in a discussion at which they
and others are present (e.g., possibly a discussion concerning the
couple’s maritalproblems and involving relatives of the spouses). In the “contemporaneous” delegation, the
authority delegated (although irrevocable like any other
delegation) will expire very quickly if not acted upon immediately, unless the words
used in making the delegation indicate otherwise. The delegation
may be so worded as to conveyauthority that will endure for days, months, or
permanently. It may also be so worded as to confer authority exercisable only
should a particular set of circumstances arise.
4.5.2 Post-nuptial contracts
A second
situation involves a post-nuptial agreement in which the husband’s undertaking is sanctioned
by a delegation of the right to pronounce talaq which the wife may
exercise should the husband default on his promise. Such post-nuptial
agreements may be executed some time after the marriage. Equally,
they may be made immediately after the exchange of consents and as part
of the marriage rites themselves. There is no reason (from the
perspective of Muslim law) why a blanket delegation may not be made in a
post-nuptial agreement or by means of a unilateral post-nuptial grant. [23]
4.5.3 Delegation as part of marriage consents
The third
situation involves a delegation made at the time of the marriage and incorporated in the
actual exchange of consents. E.g.: When the proposal comes from the
woman… and she says, “I have given myself in marriage to thee… on
condition that the authority (in the matter of divorce) is in my hands, so that I
may divorce myself whenever I choose,” and the man then says, “I have
accepted,” then… the marriage is valid and… the authority (in the matter of divorce)
will be in her hands. Note that the terms used in this example confer upon
the wife a permanent and completely unrestricted right to
pronounce talaq at her pleasure.
Judicial Pronouncements for
Divorce
5.1 Court’s
approach for maintaining Divorce
In Syed Ziauddin v. Parvez Sultana [24], 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 v. Sardar Shah ,[25] 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 v. Mamu koya [26], 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 v. Asghari [27], 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.
Divorce on the basis of irretrievable breakdown of
marriage has come into existence in Muslim Law through the judicial
interpretation of certain provisions of Muslim law. In 1945 in Umar Bibi v. Md. Din [28], it was argued that the wife hated
her husband so much that she could not possibly live with him and there was
total incompatibility of temperaments. On these grounds the court refused to
grant a decree of divorce. But twenty five years later in Neorbibi v. Pir Bux , again an attempt was made to grant
divorce on the ground of irretrievable breakdown of marriage. This time the
court granted the divorce. Thus in Muslim law of modern India, there are two
breakdown grounds for divorce: (a) non-payment of maintenance by the
husband even if the failure has resulted due to the conduct of the wife, (b)
where there is total irreconcilability between the spouses.
5.2 Judicial
movements against arbitrary use of divorce
The Supreme
Court of India through a judgement dated 1 October 2002 in Shamim Ara vs State of U.P [29]., 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:
· Plea taken in a reply to the
maintenance claim filed by the wife does not constitute divorce;
· 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;
· An oral talaq, to be effective, has
to be pronounced;
· 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;
· 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;
· A Muslim husband cannot divorce his
wife at his whims and caprice; and
· The husband must also prove that
there was a valid ground for divorcing the wife.
5.3 Case
references on post Divorce Maintenance
In the case of Safura khatun v. Osman Gani Mollah[30] the wife-plaintiff has instituted
her suit for maintenance for the period of Iddat claiming Rs.105/-.Her case in
short is as follows,
During the Iddat period she was not maintained by the
defendant, that is the plaintiff in the other suit, and as such, she has been
compelled to bring the suit. The defendant of the defendant is that were was no
valid divorce by the plaintiff in the money suit and as such, she is not
entitled to get any decree for maintenance for the period of Iddat. Both the
court below have decreed the suit of the husband-plaintiff and dismissed the
suit of the wife plaintiff. Hence the present appeals at the instance of the
wife. Mr. Syed Amjad Hussain, the learned Advocate for the Appellant, contends
that in view of the fact that the husband left the wife without her previous
consent and in view of the fact that the husband did not maintained the wife
for two years, she was under the kabinnama entitled the exercise the right of tawfiz
talak. It has been found by both the courts below that the husband did not sent
money regularly to the wife but only Rs.46/- was sent in all through out the
two years and, in the opinion of both the court below that was sufficient
compliance with the previous of the kabinnama. I am sorry I cannot agree with
the finding. Rs.46/- for two years cannot he by any imagination Sufficient to
meet the maintenance expenses and such as, it cannot be said that there was a
sufficient compliance of the term of the kabinnama.
The decision
of this Suit was given by; J. Hasan, in March 5 of 1957 : That was Appeal no.
392/1952 is allowed and the judgments and decree of the both Courts below are
set aside., and her suit for Rs.45/- is decreed.
In the Shah Banu Case[31] the interveners on behalf of the husband in Shah Bano could not refute the words of the
Quran, all they could do was to contend that Yusuf Ali’s translation of mataa as “maintenance” was incorrect and
to point out that other translations employed the word “provision.” This the
Supreme Court termed “a distinction without a difference” -- as indeed it was
on the facts of the case before it: whether mataawas rendered “maintenance” or
“provision,” there was no pretence that the husband in Shah Bano had provided anything at all by way
of mataa to his divorced wife. In the Lok
Sabha debates after the judgment, Ibrahim Sulaiman Sait (speaking in support of
overruling the Shah Bano decision by statute), while
apparently conceding that a divorced Muslim woman was entitled to mataa, argued that mataa “is a single or one time
transaction. It does not mean payment of maintenance continuously at all.” This
concession supports the argument that the word “provision” in section 3(1)(a)
of the Muslim Women Act incorporates mataa as a right of the divorced Muslim
woman distinct from and in addition to mahr and maintenance for the period of iddah. Thus, even assuming (without
conceding) that the “maintenance” referred to in section 3(1)(a) is confined to
maintenance for the period of iddah, there still remains the question of “provision.”
This “provision” (mataa) is neither defined by the Act nor subjected to
a statutory maximum. The determination of what constitutes, on the facts of any
given case, “a reasonable and fair provision” rests completely in the
discretion of the magistrate. Section 3(3) of the Act instructs the magistrate
to determine what would constitute “reasonable and fair provision and
maintenance” with reference to the needs of the divorced woman, the means of
the husband, and the standard of life the woman enjoyed during the marriage.
There is no reason why “reasonable and fair provision” could not take the form
of the regular payment of alimony to the divorced woman.
But the Decision of Shah Banu case was reversed by Hefzur Rahman v. Shamsun Nahar Bagum
and Others[32] where it says that a Muslim divorced woman is entitled
to have maintenance till the period of iddat and no further.
Conclusion
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.[33] 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 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 judgements 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.[34] ***
some ore information ( from internate )
some ore information ( from internate )
Bangladesh: Procedure and time involved in obtaining a divorce via the Muslim Marriage Registrar, a registrar and a "qadi" [qazi, kadi, kazi, Islamic judge] in Dhaka; the meaning of a divorce certificate compared to a divorce notice
| Publisher | Canada: Immigration and Refugee Board of Canada |
| Author | Research Directorate, Immigration and Refugee Board, Canada |
| Publication Date | 25 November 1999 |
| Citation / Document Symbol | BGD33257.E |
| Reference | 1 |
| Cite as | Canada: Immigration and Refugee Board of Canada, Bangladesh: Procedure and time involved in obtaining a divorce via the Muslim Marriage Registrar, a registrar and a "qadi" [qazi, kadi, kazi, Islamic judge] in Dhaka; the meaning of a divorce certificate compared to a divorce notice, 25 November 1999, BGD33257.E, available at: http://www.refworld.org/docid/3ae6ad4120.html [accessed 6 May 2016] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
(who is also a practising lawyer at the Supreme Court of Bangladesh and an Associate at the Chambers of Dr. Kamal Hossain and Associates) of Ain-O-Salish Kendra (
the divorce notice is the initial notice from one party (the divorcing spouse) intimating the Chairman of his/her intention to divorce. A copy of this notice is given to the other party (spouse). Once all the procedures of Sections 7 and 8 have been fulfilled and the divorce is effectuated, the City Corporation grants a divorce certificate which is then provided to the Registrar to be registered (28 Nov. 1999).
The Coordinator of the Dhaka-based women's development organization, Naripokkho, added that
A divorce certificate is a certificate of divorce. A notice is given when either party wishes to divorce. If there are no interventions for reconciliation, the divorce will be effective after the iddat period–which is from the date of the notice or the date the notice was received (iddat is usually 3 menstrual cycles) (25 Nov. 1999).
The Coordinator of Naripokkho stated that the procedure and time involved to obtain a divorce
depends on who is seeking the divorce. Men can do it fairly easily by issuing a notice and three month "iddat" period is required during which time reconciliation efforts maybe undertaken by the family or qadi or if in municipal area, by municipal corporation - in rural area - by the Union Chairman. During the "iddat period" husband is liable for maintenance.
Women can divorce similarly if they were given the power of divorce at the time of marriage. If she does not have that, then it becomes fairly long and complex--If the marriage is not registered, this becomes complex - one has to get a certificate that they were married, who the witnesses were and the amount of mahr fixed (25 Nov. 1999).
The Advocacy Coordinator of ASK provided the following detailed information on divorce procedures:
First of all, the law of divorce (talaq) of Muslim marriages in Bangladesh is governed by the Muslim Family Laws Ordinance 1961 (MFLO). The execution of the divorce proceedings is governed by the Family Courts Ordinance 1985.
There are different forms of dissolution of Muslim marriages (such as by the husband, or the wife or through mutual consent, or through Court decree). Section 7 of the MFLO states:
(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 done so and shall supply a copy thereof to the wife.
(2) Whoever contravenes the provisions of the sub-section (1), shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to ten thousand taka or both.
(3) Save as provided in sub-section (5), a talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration ninety days from the day on which the notice under sub-section (1) is delivered to the Chairman.
(4) Within thirty days of the receipt of the notice under sub-section (1), the Chairman shall constitute an Arbitration Council for the purposes 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 [is] pregnant at the time the talaq is pronounced , the talaq shall not be effective until the period mentioned in sub-section (3), or the pregnancy, whichever is later, ends.
(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section, from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.
Section 8 of the MFLO states: Where the right to divorce has been duly delegated to the wife and she wishes to exercise that 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, and so far as applicable, apply.
Please note that it is not for the Qadi to bring about the divorce. All the Qadi (who is a licenced registrar of marriages and divorces, empowered by the Muslim Marriages and Divorces Registration Act, 1974) does is maintain registers of marriages and divorces and provides an attested copy of the entry to the parties.
Thus, in regular circumstances, the time frame in which a dissolution of a Muslim marriage would take place is 90 days. The Chairman mentioned in the Sections above is the Chairman of the Dhaka City Corporation. Usually, due to social prejudice, when the divorce proceeding is brought by the wife, the authorities are very reluctant to expedite the case. Women are usually harrassed during the proceedings, which result in unduly long delays in getting the divorce; a loss of face in society due to social stigma attached to divorced women, and economic hardship as well. Sometimes this amounts to also physical threats. Cases where a woman initiates divorce proceedings frequently result in her having to give up her right to her dower, the custody of her children, and a forfeiture of her claims to marital property ( a concept yet evolving here). In classical Muslim law, the right to divorce lies exclusively with the husband. A woman has a limited right to divorce in that she has to be delegated this right at the time of the marriage by the husband. This limited scope can be limited further if the husband at the time of delegation stipulates the conditions upon which the wife would be able to exercise her right to divorce (for example, if he remarries without her consent, or physically assaults her, or fails to pay her maintenance) (28 Nov. 1999).
According to Section 7(1) of the Muslim Family Law Ordinance 1961, a husband must send to his local (Union Parishad) chairman a written notice soon after the divorce (or pronouncement of talaq, in whatever form) and must also give a copy of this notice to his wife (News Network n.d.; The Independent 10 Sept. 1999; The Daily Star 30 Aug. 1998). Within 30 days of receiving the notice, the chairman forms an arbitration committee with representatives from the husband and the wife in an attempt to reconcile the couple (ibid.; News Network n.d.). If within 90 days the committee is unable to reconcile the couple and the husband does not withdraw the divorce notice, then the divorce takes effect (ibid.; The Daily Star 30 Aug. 1998) and the chairman issues both parties a divorce certificate, according to the law (ibid.). During these 90 days the husband and wife are still considered married (ibid.).
A woman can initiate divorce proceedings if her husband delegated her that power at the time they got married (The Daily Star 30 Aug. 1998). This form of divorce, called talaq-i-tafweez (ibid.), "enables married women to dissolve their marriage without the consent of the husband or the intervention of the court or another external agency" (Mahmood 1995, 256), and is contained in clause 18 of the nikah namah (marriage contract) (The Daily Star 30 Aug. 1998; The Independent 10 Sept. 1999). If the woman exercises this right, the same provisions of divorce apply, and she must also send a written notice of divorce to the local chairman as well as to her husband (The Daily Star 30 Aug. 1998).
The Independent article states that several forms of divorce are valid without the intervention of the court, including thetalaq, ila or zihar by the husband, talaq-i-tafwid/tafweez (must be written in the marriage contract) by the wife, and khul'(available under the law and need not be included in the marriage contract) or mubar'arat ("mutual freeing, divorce by mutual consent) by muturla agreement between both parties (10 Sept. 1999).
However, The Daily Star article states that the right to claim divorce in the khul' and muba'arat forms of divorce is available through the courts (10 Sept. 1999). In these two forms of divorce, as well as the talaq-i-tafwid form, the divorce must be registered within 90 days of the divorce notice. The article adds that "the Nikah registrar enters the registration on the basis of applications for such registration within his own specified jurisdiction" (ibid.).
According to one source, "laws provide some protection for women against arbitrary divorce…, but the protections generally apply only to registered marriages. Marriages in the countryside are often not registered because of ignorance of the law" (US Mission 23 Sept. 1997).
The following section of a 30 August 1998 article from the Dhaka daily newspaper, The Daily Star, entitled "When Women Seek Divorce" by advocate Ila Chanda illustrates the problems faced by one woman as she attempted to obtain a divorce:
Ranu was given the right to initiate divorce proceedings as per Clause 18 of her nikahnama [marriage contract]. On her having extreme difficulty in living with her husband, she sent a divorce notice to the Chairman with a copy to her husband, as per the law (The Muslim Family Laws Ordinance, 1961; The Family Courts Ordinance, 1985). On receiving notice from the Chairman of the Arbitration Council, Ranu went to the Chairman's office and personally informed him that it is impossible for her to live with her husband and that she needs to have a divorce. Upon completion of ninety days after serving the divorce notice, Ranu did not receive a certificate informing her of the divorce taking effect, as is the provision under the law. When she sought this certificate from the Chairman, he informed her that the divorce did not take effect as the husband did not receive any notice of divorce and that both parties had not met for reconciliation. He claimed that Ranu and her husband had always come to him individually rather than together. He stated that he would reissue a notice to both sides to attend a reconciliation session. When Ranu again requested him to provide her a certificate, the Chairman stated that it would take a long time to do so.
In this way the matter had been pending for nearly five months, beyond the ninety-day period. She was informed that her divorce notice was not made in a "proper" manner. According to the Chairman, the "proper" way is to complete the notice according to the format provided by the Kazi [Qadi, Islamic judge] Office, after which ninety days are to lapse before the divorce becomes effective. This means that seven or eight months would lapse before Ranu can get a divorce.
The general situation is such that even when women receive their divorce certificates after ninety days of the notice, the Kazis refuse to register the divorce on the ground that the divorce notice had not been sent through them (the Kazis). In situations like this, women have to start the procedure all over again and wait uncertainly for their divorce to come through. In other words, women are denied divorce on certain grounds which are absolutely made up on the whim of the Chairmen and the Kazis. Some of these false grounds include, insisting that the women have the divorce notice written out in the format provided by the Kazi's office, and insisting that there are witnesses present at the time of issuing the notice.
As just stated, none of these grounds [are] sanctioned by law. In other words, the law does not require a woman seeking divorce to have the notice sent by the Kazi or in the notice format of the Kazi office. These grounds are simply the vagaries of the Chairmen of the Arbitration Council and the Kazis. To make matters worse, women fall victim to bribery within the Dhaka City Corporation to secure their divorce certificates. The government has set a fee of Tk 100 for registering divorces. However, until today none of our clients have been able to register their divorces under Tk. 400.
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum. Please find below the list of additional sources consulted in researching this Information Request.
Ain-O-Salish Kendra (ASK), Dhaka. 28 November 1999. Correspondence from Advocacy Coordinator. NGO and human rights organization in Bangladesh specialising in legal aid and mediation services through ten core units (legal aid, training, advocacy, media, popular theatre, field support and liaison, research, child rights unit).
The Daily Star [Dhaka]. 30 August 1998. Ila Chanda. "When Women Seek Divorce." Translated from Bangla by Faustina Pereira. < http://www.dailystarnews.com/ 199808/30/n8083009.htm#BODY2> [Accessed 24 Nov. 99]
The Independent [Dhaka]. 10 September 1999. K. Rahman. "Divorce in Our Society." [Accessed 24 Nov. 1999]
Mahmood, Tahir. 1995. 2nd revised edition. Statutes of Personal Law in Islamic Countries–History, Texts and Analysis.New Delhi: India and Islam Research Council.
Naripokkho, Dhaka. 25 November 1999. Correspondence from the Coordinator. (Information on Naripokkho can be obtained in BGD23825.E of 6 May 1996).
News Network. n.d. Sajedul Islam Fatemi. "Law Does Not Permit Hilla Nikah or Interim Marriage. But It Also Has Failed to Eliminate the Practice." [Accessed 24 Nov. 1999]
US Mission, Dhaka. 23 September 1997. Bangladesh. [Accessed 24 Nov. 1999]
Additional Sources Consulted
Women Living Under Muslim Law (WLUML). 1996. Talaq-i-Tafwid: The Muslim Woman's Contractual Access to Divorce: An Information Kit. Edited by Lucy Carroll and Harsh Kapoor. Grabels: WLUML.
Electronic sources: various Internet sites, IRB Databases, REFWORLD.
Non-documentary sources
Unsuccessful attempts to contact:
- Associate professor of law, Dhaka University.
- Lawyer and human rights activist, Dhaka.
REFERENCES
***
Books
1.
Aqil Ahmed. Text book of Mohamadan Law. 21st ed. (Allahbad: Central Law Agency,
2004).
2.
Md. Altaf
Hossain. Islamic Jurisprudence and Muslim Ain Sohaika.( In Bangali), (Dhaka: City Law Book, 2003).
3.
Shaukat
Mahmood, Principles and Digest of Muslim Law, 6th ed. (Lahore: Legal Research Centre,
2002).
4.
Asaf A. A.
Fyzee, Outlines of Muhammadan Law, 4th ed. (Oxford: Oxford University
Press, 1993).
Statutes
1.
Muslim Family Law Ordinance, 1961.
2.
Dissolution of Muslim Marriage Act, 1939.
Cases
1. Bibi Rehana v. Iqtidar-uddin, (1943), ALL, 295.
2. Mst. Balaquis Ikram v. Najmal Ikram, 2(1959), WP, 321.
3. Md. Khan v. Shahmali, AIR (1977), Cal,
90.
4. Zafar Husain v. Ummat-ur-Rahman, AIR (1999), All,
182.
5. Jauri Beebee v. Sheikh Moonshee
Beparee, 3 (1865),
WR, 93.
6. Nurjahan Bibi v. Mohd. Kazim Ali, AIR(1977), Cal, 90.
7. Mohd. Khan v. Mst. Shahmali, AIR(1972), J.&K., 8.
8. Muhammad Ali Akbar v. Fatima Begum, AIR(1929), 660.
9. Mst. Sadiqa Begum v. Ata Ullah, AIR (1933), 885.
10. Janson v. Driefontein Consolidated
Mines, Ltd,(1902)
Appeal Cases 484.
11. Syed Ziauddin v. Parvez Sultana, (1943) 210
IC 587.
12. Zubaida Begum v. Sardar Shah, [1] (1971) KLT 663.
13. Aboobacker v. Mamu koya, AIR (1960), All,
684.
14. Itwari v. Asghari, AIR(1945), Lah, 51.
15. Umar Bibi v. Md. Din, AI.R (1971), Ker, 261.
16. Safura khatun v. Osman Gani Mollah, 9 (1957), DLR, 455.
17. Shah Banu Case, AIR(1985), SC, 945.
18. Hefzur Rahman v. Shamsun Nahar Bagum
and Others, 59(1999),
DLR, AD, 172.
19. Shamim Ara vs State of U.P, 7(2002), SCC, 527.
Web Pages
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last visited on 30 December 2009].
2.[http://www.legalaid.qld.gov.au/Legal+Information/Relationships+and+children/Relationships/Separation+-+what+it+means.htm ,last visited 13 October 2009].
3.
[http://www.wluml.org/english/pubs/pdf/misc/talaq-i-tawfid-eng.pdf last visited 13 October
2009].
4.
[http://www.lawyersclubindia.com/articles/-Divorce-by-wife-IN-MUSLIM-LAW/1632/
last visited on 21 December 2009].
[1] Asaf A. A. Fyzee, Outlines of Muhammadan Law, 4th ed. (Oxford: Oxford University
Press, 1993), p.147.
[2][http://www.google.com.bd/#hl=bn&q=Triple+talaq%2C+women%27s+rights+and+Indian+judicial+responses&meta=&aq=&oq=Triple+talaq%2C+women%27s+rights+and+Indian+judicial+responses&fp=ed0bd4d3e01e7a66,
last visited on 30 December 2009].
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