Your
Advocate
This
week your advocate is M. Moazzam Husain of the Supreme Court of Bangladesh.
His professional interests include civil law, criminal law and constitutional
law.
Q:
Almost a year and a half ago, we secretly got married. I was still a
teenager, but legally eligible to be married; he was much older and
more matured than me. Then, I went to my parent's house and he went
to his. There were no reasons for us to take the drastic step because
there were no immediate pressures from our families. But, unfortunately,
we took the step and now we are bound. We never shared a conjugal life,
all there was between us was a signed document but that is enough to
turn life hell. I still don't feel married, but legally, I am. As days
went by, we realised our mistake. The only thing to do now is rectify
it legally. Our families now know, but they have left the decision on
our hands, they are not trying to pressurise us in any way. We both
want a legal remedy that does not involve too much chaos, legal representation
or explicitness. In one word we want absolute discretion. Can you please
help us in this regard? As witness, only one of my female friend was
present from my side and another male friend was the 'ukil baap'. None
of the other witnesses were from my side. Will that make the marriage
illegal? If it will, what procedures need to be followed to have it
legally declared as illegal? Alternatively, what are procedures to be
followed for a mutual divorce? I don't have any claims on the 'kaabin',
all I want is a discrete closure. I would also like to know if the bride
can ask for a divorce, in case the groom for some ulterior motive refuse
to easily come to a mutual divorce agreement? How can she do that? Please
help us and please try to answer as soon as possible.
Rabeya, Dhaka.
Your
Advocate: Your sudden secret marriage, on mutually living apart
from the start, never to live like husband and wife, absence of negative
pressure from the respective families and finally calling it a mistake
and taking decision to walk out of the wedlock do not conform the ordinary
course of conduct. This is, however, a matter of somebody's inner cry
and disquiets not something to be guessed or speculated from outside.
Be that as it may, you want to clear yourself off from matrimonial bondage
as quickly and easily as possible without taking much of trouble and
run-around. You have at the same time doubted the validity of your marriage
as there was some technical omission in the Nikahnama. Mere absence
of one of the two witnesses required to sign the document does not invalidate
the marriage, which is otherwise valid. As to the question of divorce
you have indicated that your husband is agreeable to mutual separation.
You do not also claim the dower money and the whole concern is to get
rid of the bondage.
Yes, there is provision
for dissolution of Muslim marriage by mutual consent without intervention
of court. This is called Mubara'at. But in view of the Muslim Family
Laws Ordinance, 1961, intervention by an Arbitration Council to be constituted
by the local Chairman, UP/Paurasabha or Mayor, City corporation as the
case may be, is mandatory. Since you both are agreeable to a mutual
separation it is more advisable in your case to ask your husband to
exercise his right of divorce as per Section 7 of the aforesaid Ordinance.
He is required under law to give notice to the Chairman/Mayor with a
copy to you, i.e., his wife informing that he has divorced his wife.
The Chairman or Mayor as the case may be will then constitute an Arbitration
Council and go through the formalities of law towards bringing about
a reconciliation between the parties. As this is in fact a case of mutual
separation reconciliation will virtually fail and divorce will take
effect on the expiry of 90 days from the date of notice received by
the office of the Chairman/Mayor. And you will be free once for all
from the day on. Remember that you will have to take this much trouble
of taking recourse to the Chairman/Mayor as it is the mandatory requirement
of law. Any attempt at making short-cut would leave scope for future
complications.
Now to the second
limb of your question. A Muslim woman can divorce herself from her husband
if she has such power delegated to her by her husband. Nowadays it has
become customary with the bridegroom to delegate such power to his wife.
Non-delegation is an exception. Please check through column No.18 of
your Nikahnama. This is the column that contains the stipulation about
delegation of such power. If there is delegation of power mentioned
in your Nikahnama you can also exercise the power in accordance with
the provisions of Section 8 of the same Ordinance by giving notice to
the local Chairman/Mayor in the similar way with some changes in technical
language. In any case you should take advice of lawyers. Should all
the devices fail you will have no choice but to go to court for dissolution
of marriage. And this will unavoidably entail some trouble and fussing
you wanted so anxiously to avoid.
Corresponding
Law Desk
Please send your mails, queries, and opinions to: Law Desk,
The Daily Star 19 Karwan Bazar, Dhaka-1215;
telephone 8124944, 8124955, 8124966; fax 8125155, 8126154; email <dslawdesk@yahoo.co.uk>
