Laws For everyday life
When it's a question of divorce
Shah Md. Mushfiqur Rahman
Razib is an angry young fellow. He works hard but cannot stay hungry for long. One day upon returning home Razib asked his wife, young Rihana, to serve food. She was busy taming their little kid that was crying heart and soul. So, it took her a while to serve food and that was enough to trigger eruption of Razib's violent anger. He declared triple divorce and to make things more dramatic somebody amongst the neighbours arrived there to hear the declaration. In due course of progress the news was transmitted all around the village and finally reached the bigwigs of the community. They arranged arbitration and declared the divorce effective from the moment of pronouncement of divorce though done on the spur of the moment. They also ruled that Rihana would have to undergo a hilla (intermediary) marriage before she can remarry Razib. Razib and Rihana found the ruling to be inhuman and contrary to their understanding of justice. Therefore they did not cease to live like husband and wife and got excommunicated by the community leaders. Do you find this incident quite unfamiliar? You should not.
As you might already have understood, issue for today's discussion is divorce, more particularly Muslim divorce. It is one of the most undesirable events in our social life but things could get worse had there been no provision for divorce. Divorce of Muslims is supposed to be regulated by Muslim personal law. There are lots of ways a Muslim marriage can be terminated under orthodox religious law. But statutory law interfered with this particular area of personal law and made a uniform procedure only through which a divorce can become lawfully effective. All other forms of divorce though might have approval of social practice or religious sanction are thereby discarded. So what is the position of Razib's marriage under the divorce regime of the land?
The law responsible to regulate Muslim divorce in Bangladesh is the Muslim Family Laws Ordinance 1961. It is very elaborate and at the same time precise in laying down the procedure to be undergone to effect a divorce. Below is the procedure:
Any man divorcing his wife must give the concerned Chairman a notice in writing of his having done so. Here the term Chairman connotes the Chairman of the Union Parishad in which the wife is residing at the time of such pronouncement. In case of Paurashava or Municipal Corporation the notice is to be served to the Chairman of Paurashava or the Mayor of the Municipal Corporation respectively. A copy of the same is to be supplied to the wife receiving divorce. If this requirement of notice service is contravened by the husband, he will be liable for maximum one year simple imprisonment or fine of maximum ten thousand taka or both.
Upon receiving such notice the Chairman is required by law to constitute an Arbitration Council for reconciliation between the parties. The Chairman would head the Council that includes one representative from both the parties. The divorce would be effective upon the expiration of ninety days from the day on which notice was delivered to the Chairman. So it is not relevant when the pronouncement was made. But if the wife is pregnant at the time of divorce, it shall not be effective until the pregnancy or ninety days, whichever is later.
The Husband pronouncing divorce shall have the opportunity to revoke his pronouncement before the time of ninety days from the service of notice to the Chairman expires or pregnancy ends, as the case may be.
A wife whose marriage has been terminated by divorce in abovementioned fashion shall retain the right to re-marry her former husband. In such a case an intervening marriage (hilla) will not be required to perform. Such intervening marriage would be necessary only if the divorce is effected between the couple for the third time.
This provision is not made to make the wife undergo a humiliating process before she can marry her former husband. This rather gives her an opportunity to make a practical comparison between the guys she lived with. And it would not be legitimate to marry a person just for the purpose of validating subsequent marriage with former husband. The marriage with another person would have to be a proper marriage in every sense of the term and must be done to hang on to it. She can initiate the termination if she finds the relationship more miserable than the former one. Then she can make a choice in favour of returning to her ex-husband.
If we have a good look into the provisions on divorce on the part of the husband, it transpires that lawmakers just preferred the best practice from amongst the available options offered by Muslim law.
The writer is advocate, member of Dhaka Bar Association.
