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.
My friend got married about fifteen years ago. By her marriage she has
a son who is now fourteen years of age. After two years of marriage
her husband left Bangladesh for a job abroad and he got one. For about
ten years, at a stretch, he lived abroad. Every now and then he sent
money for the maintenance of the child. Several times he promised his
wife that he would take his family and keep them with him, but it never
happened yet. In the year 2001 the husband visited Bangladesh and stayed
with his family, once again, promising them to take them with him. He
did not do so, with some lame excuses he declined. The wife, being young,
is frustrated and since the maintenance is stopped she is in some difficulty.
It was alleged, he married a resident of the country
where he is settled, more or less, without the consent of his wife.
He got married as a different person by changing his identity. Under
the above circumstances, my questions are:-
- Would it mean or can be taken as the couple are separated?
- If the wife wishes to marry someone can she do so?
- Does she require any document of any kind?
- As the couple has not stayed together for more than two years would
that mean that the husband has exhausted his legal right over his wife?
- Supposing that the wife wants to marry someone else what difficulties,
if any, she might face?
- It seems to me that they are separated, can she claim her alimony
or for that matter can she claim for her sufferings?
I shall be much obliged if you could give her some helpful
advice. Many in Bangladesh are this kind of problem because of social
and culture taboo they do not wish to publicise their troubles.
Iftikhar Rasul
Adel Corner, Dhanmondi R/A
Dhaka 1209
Your
Advocate: It is not difficult to understand how disquieting
time your friend is passing through. Nonetheless, this is the reality
of life and we as human have hardly anything to do except trying to
shape and reshape it in an attempt to make it worth living.
In the background of your friend's life you have asked
me several questions. By the first question you have possibly meant
whether the couple may be treated as divorced in view of their long
living in separation. No, mere living in separation does not bring about
any legal separation between the parties. It may serve as a ground of
divorce in some cases but does not by itself constitute divorce. For
divorce on this ground the wife may sue the husband in the family court
or alternatively she may address a notice to the Chairman, local UP/Paurashava
or Mayor, local City Corporation as per Section 8 read with Section
7 of the Muslim Family Laws Ordinace,1961, provided she has power of
divorce delegated by her husband. Answers to your second and third questions
lie in the reply to the first question. A married woman who is not legally
divorced cannot contract a second marriage during her husband's life
time and, therefore, a document, namely, a decree of the court or a
decision of the Arbitration Council constituted as per the provisions
of the aforesaid Ordinance whichever is applicable would be necessary.
The fourth question also stood addressed in generality
in the reply of the first question. So far as the specific length of
time is concerned law does not disentitle a husband to his rights or
absolve of his liabilities by reason merely of absence for a specific
length of time. But law says, amongst other things, that a woman is
entitled to decree for the dissolution of marriage if the husband a)
neglected or failed to provide for her maintenance for a period of two
years b) has taken additional wife without the consent of the subsisting
wife c) failed to perform his marital obligations for a period of three
years d) treats her with habitual cruelty physical or mental. If a wife
encounters any one or more of these situations she may sue for dissolution
of marriage. And until a decree of dissolution of marriage is there
nothing will exhaust the husband's rights over the wife.
The fifth question appears to have sprung from a bit
of desperation. Nothing should be done in desperation. It is more often
counterproductive. Particularly in matrimonial matters it should be
carefully avoided. She continues to be wife of her husband until there
is divorce effected as per law. Any step to contract a second marriage
or for that matter contracting a second marriage at this stage, will
not only put her to social disgrace but also relegate her to the status
of a person committing adultery punishable under law.
The last question is more realistic. The alimony is
usually meant as the money that a court of law orders someone to pay
regularly to the wife or the husband after they are separated. That
is there. But a wife is entitled to maintenance and arguably portion
of her dower during subsistence of marriage. She can very well claim
her maintenance and dower due to her from her husband and go for legal
separation according to the procedure prescribed by law and not otherwise.
