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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 76
July 12 , 2008

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Laws For everyday life

When a woman wants to divorce

Shah Md. Mushfiqur Rahman

Muslim law gives a male almost unqualified right to divorce. A Muslim male can repudiate his marriage at any time without assigning any reason whatsoever. Can a Muslim female do the same? No, there are qualifications and contingencies.

The authority to give divorce is primarily vested to husband. The husband can delegate this power to his wife by virtue of which the wife can divorce herself from her husband. This form of divorce is called talak-e-tawfeez. The delegation of such power would be on certain conditions and the conditions must be reasonable in nature and not opposed to the policy of the Muslim law. A stipulation that the wife would be at liberty to get her divorced in the event of husband's failure to maintain her for a long time is good in law.

This delegation of getting divorced can be made before or after the marriage. In most of the occasions this is done in the marriage contract. The form of registration for Muslim marriages as prescribed by the Muslim Marriages and Divorces Rules, 1975 provides for such a scope of delegation. In 18th column of this form there is an option whereby delegation can be made upon some condition/s. The power so delegated by the husband is not revocable and the wife can exercise it whenever stipulated event takes place. But mere happening of the stipulated event would not per se result in divorce rather she must actually exercise her right of doing so.

Suppose such delegation is not made during the registration of marriage or afterwards. What will happen then? Is there any other resort the wife can take to break it off? This kind of situation will necessitate the intervention of court to make the dissolution happen. Before the court can deliver a decree effecting the dissolution, the wife must satisfy it of such decision's justifiability. She must show good reason to convince the court that dissolution is the right solution.

According to the Dissolution of Muslim Marriages Act, 1939 any one or more of the following grounds will entitle a Muslim woman to obtain a decree for the dissolution of her marriage:
1. That the whereabouts of the husband have not been known for a period of four years;
2. That the husband neglected or has failed to provide for her maintenance for a period of two years;
3. That the husband 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 upwards;
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 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 she, having been given in marriage by her father or other guardian before she attained the age of eighteen years, repudiated the marriage before attaining the age of 19 years; provided that the marriage has not been consummated;
9. That the husband treats her with cruelty.
10. On any other ground which is recognized as valid for the dissolution of marriages under Muslim law.

Say, a woman has duly convinced the court to obtain a decree of dissolution. Will such decree immediately result in dissolution of marriage in question? No. In such a case the Court shall send a certified copy of the decree to the concerned Chairman within seven days. This shall be sent by registered post.

Upon receipt of such copy, the Chairman shall proceed as if he had received a notice of talaq given under the Muslim Family Laws Ordinance, 1961. That means he will be arranging Arbitration Council which will try to reconcile between the parties. A decree of dissolution thus shall not be effective until the expiry of ninety days from the day on which a copy of the decree has been received by the Chairman. If the efforts of such Arbitration Council fail, the dissolution will take place upon expiry of ninety days. Above are the ways a Muslim woman can get divorce by way of delegation or through decree of a court.

The writer is advocate, member of Dhaka Bar Association.


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