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:
Email:
gabrielsawma@yahoo.com
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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