Wednesday, July 10, 2013

Muslim Divorce in Bangladesh

Muslim Divorce in Bangladesh
By
Prof. Gabriel Sawma


Introduction to Bangladesh
Bangladesh lies on the northern coast of the Bay of Bengal; the country is surrounded by India, with a small common border with Myanmar in the southeast. Bangladesh is low-lying riverine land traversed by the many branches and tributaries of the Ganges and Brahmaputra rivers. Tropical monsoons and frequent floods and cyclones cause heavy damage in the delta region.

In ancient times, Bangladesh was a Buddhist country, but by the 10th century, but by the 10th century AD, it was ruled primarily by Hindu. In 1576, Bengal became part of the Mongolian Empire, and the majority of East Bengalis converted to Islam. The country was ruled by British India from 1757 until Britain withdrew in 1947. And Pakistan was founded out of the two predominantly Muslim regions of the Indian subcontinent. And, for almost twenty five years following its independence from the British Empire, Bangladesh history was part of Pakistan’s. The two regions were known as West Pakistan and East Pakistan; they were united by the religion of Islam, but their people were separated by one thousand miles of Indian territory. On March 26, 1971, a Civil war broke out between the two regions that ended in the independence of Bangladesh in 1974.


Islamic Divorce Law of Bangladesh
The law of divorce for Muslims in Bangladesh is regulated by the Muslim Marriages and Divorces (Registration) Act, 1974 and by the Muslim Family Laws Ordinance of Bangladesh 1961).

The law of divorce in Bangladesh is based on Islamic Sharia according to the Hanafi School of Jurisprudence. Under the Muslim Family Laws Ordinance of Bangladesh, men may seek divorce by pronouncing talaq and giving notice to the Chairman of the Union (Parishad) or to other appointed official and a copy to his wife. The Chairman is then appoints an arbitration council, who attempts to reconciliation the conflict between the parties. If such efforts fail to resolve the marital dispute, then the divorce becomes effective after the iddat of three months is expired. If the wife is pregnant at the time of Talaq, the iddat expires when she gives birth to a child.


Divorce by Talaq
This is a right given to the husband by Islamic Sharia, to divorce his wife any time he chooses; with or without cause. Article 7 (1) of the Muslim Family Law of Bangladesh (1961) states that any Muslim man who wishes to divorce his wife, soon after the pronouncement of Talaq in whatever form he chooses, shall give a written notice of talaq to the Chairman of the Union. A copy of such notice is sent to the wife. Failure to do so will subject the husband to imprisonment up to one year or ten thousand taka, or both (Art. 7-2). When Talaq is done according to these provisions, it will take effect after ninety days from the day the notice was delivered to the Chairman.

After the Chairman receives the notice of Talaq, he will establish 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.” (Art.7-4). If the wife is pregnant at the time of the notice, the talaq takes effect at the time she gives birth.

Once a divorce becomes final, the husband must record before the Nikah Registrar.


Dissolution of Marriage by Wife
The mode of divorce initiated by women in Bangladesh differs from the right of divorce granted to Muslim men. In the previous segment we have seen that men can divorce their wives at will without court intervention. But when Muslim women initiate divorce, they have to go to court in order to get divorce decree. Following are the situation under which a Muslim woman in Bangladesh can divorce her husband:

The husband may delegate the right of talaq to his wife in the marriage contract. In the absence of a delegated right of Talaq, the Ordinance provides two grounds upon which women may seek dissolution of their marriage: nonpayment of mahr (dower) or failure to provide maintenance for a period of two years after a demand is made.

According to the 1939 Dissolution of Muslim Marriages Act, the wife is required to get a judicial divorce under the following grounds:

1-that the whereabouts of the husband have not been known for a period of four years;
2-that the husband has neglected or has failed to provide for her maintenance for a period of two years;
3-that he has taken an additional wife in contravention of the provisions of the Muslim Family Laws Ordinance, 1961;
4-that the husband has been sentenced to imprisonment for a period of seven years or more;
5-that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;
6-that the husband was impotent at the time of the marriage and continues to be so;
7-that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;
8-that the wife was given in marriage by her father or other guardian before she attained the age of eighteen then repudiated the marriage before attaining the age of nineteen;
9-that the husband treats his wife with cruelty, such as assaulting her by physical ill-treatment; he associates with women of evil repute; attempt to force her to leads a immoral life; dispose of her property or prevents her from exercising her rights over it; obstruct her from the observance of her religious rights; or if he has more wives than one, and he does not treat her equitably in accordance with the injunctions of the Quran.

The Muslim Marriages and Divorces (Registration) Act provides for a mediation process over a period of three months before a divorce can become effective.


As Expert Consultant on Islamic divorce obtained from the Middle East, Central Asia and other Islamic nations, this author has been privileged to have been able to defend clients, successfully, by submitting legal opinions and affidavits in their support on issues related  to Islamic divorce to State and Federal Courts and to Immigration Boards. Some of these cases have been reported by major U.S. law journals.

Following is a landmark case at New York Supreme Court of Westchester County, in which this author submitted an affidavit on behalf of a client. The honorable Court agreed with our argument and granted the client recognition of a divorce decree obtained in Abu Dhabi, including custody of children and a mahr of $250,000. You may read the judgment of the Supreme Court on the following link:


DISCLAIMER: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific or legal advice on the information provided and related topics, please contact the author.

Gabriel Sawma is a lawyer with Middle East background, and a recognized authority on Islamic law of marriage, divorce and custody of children; Professor of Middle East Constitutional Law and Islamic law; Expert Consultant on Islamic divorce in US Courts and Canada; admitted to the Lebanese Bar Association; former Associate Member of the New York State Bar Association and the American Bar Association.

Prof. Sawma lectured at the American Academy of Matrimonial Lawyers (AAML) in New York State and wrote many affidavits to immigration authorities, Federal Courts, and family State Courts in connection with recognition of Islamic foreign divorces in the U.S. He also travelled to Saudi Arabia and the Arabian Gulf States, and wrote extensively on Islamic divorce in USA and abroad. Interviewed by:


Contact Information:
Tel. (609) 915-2237

Or visit our websites at the following links:

For more information on the author, please see this link:
http://islamicdivorceinusa.com/about-2/

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Shirin Akter said...

Dear Prof. Gabriel Sawma,
In your article you wrote Bangladesh became independent in 1974 but the correct information is we declared independence on 26th of March 1971 and after 9 months long struggle and fighting we achieved independence on 16th December 1971.I hope that you will make correction.

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