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February 15, 2004 

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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: A person married 2nd time without the consent of his 1st wife. The man continued living in Chittagong town with his 2nd wife until his death. After his death both the wives claimed for family pension. However, the 2nd wife claimed the pension solely claiming that the first wife was divorced by her husband and requested not to give any share of the family pension to the second wife. She enclosed a letter to the authority to consider it as a deed of divorce which was given to her by her husband during his lifetime. We examined it & saw that this letter was addressed to his 1st wife stating that he is divorcing her & she will not be entitled to any property owned by him. We also observed that, that employee did not show any reason or fault committed by his 1st wife, which could automatically lead to divorce lawfully. The individual gave a copy of that letter to the UP Chairperson of his village & 2 people signed that letter as witnesses. We referred the case to Chittagong G.P. for his legal opinion along with the letter. The G.P. opined that the divorce was legal & the 2nd wife is entitled to get all the financial benefits. It can be mentioned here that they did not go for mutual separation & UP Chairperson did not take any initiative for reconciliation. Please advice lawful position of the above matter.

Abdul Kader,
Halishahar, Chittagong.

Your Advocate: You have expressed your grief and concern over, in your view, an unjust deprivation of a woman claimed to have been divorced by her husband. You have seriously doubted the validity of the divorce itself in view of the absence of any reason given and the procedure adopted in doing so. As you have mentioned, the matter was once referred to the local GP who by examining the papers have found the divorce valid in the eye of law. The deprivation of the woman appears to you so exceedingly unjust and arbitrary that the opinion could not satisfy your troubled mind and you felt impelled to look beyond. Thank you for your lingering anxiety for a woman who is seemingly denied justice.

I share your anxiety but, I am afraid, I cannot give you a better opinion than that of the GP precisely because the GP had the privilege of examining the relevant papers. The opinion given on the basis of papers is likely to be more dependable than one given on mere words of a lay questioner. I can at best give you the legal position from which you may get the insight for judging for yourself the validity of things you questioned about.

The basic law of dissolution of Muslim marriage is governed by our personal law and the procedure of divorce applicable to Muslims are laid down in Section 7 of the Muslim Family Laws Ordinance, 1961 and the Rules framed thereunder. Section 7 of the Ordinance says, amongst others, -

(1).Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any from whatsoever, give the Chairman notice in writing of his having done so, and shall supply a copy thereof to the wife.

(2)Whoever contravenes the provisions of sub section (1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to ten thousand taka or with both.

(3).Save as provided in sub-section (5), a talaq, unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of ninety days from the day on which notice under sub-section (I) is delivered to the Chairman.

(4)Within thirty days of the receipt of notice under sub-section (1) the chairman shall constitute an Arbitration Council for the purposes of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.

(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in sub-section (3) or the pregnancy, whichever be later, ends.

Under our personal law any Mohammedan of sound mind who has attained puberty may divorce his wife whenever he desires without assigning any cause. The section of the Ordinance also does not mention any specific mode of pronouncement of talak nor is there any mention as to assigning any cause. But notice of talak pronounced must be given to the Chairman with a copy to the wife. Absence of notice will render the talak ineffective. The Arbitration Council in fact has no function except to take steps for bringing about reconciliation between the parties. Once written notice of pronouncement of talak is delivered to the chairman and the Arbitration Council was not constituted for any reason or it was constituted but reconciliation efforts failed, talak takes effect after the expiry of 90 days or if the wife be pregnant at the time of pronouncement of talak, after the pregnancy ends.

I hope the discussion made above will be of some help to you in judging for yourself whether the talak you have complained against is legally valid. Here the notice to the chairman is crucial. If it could be shown to have been given talak takes effect by operation of law. None of us really can help it.


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