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  <%-- Page Title--%> Issue No 132 <%-- End Page Title--%>  

March 14, 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: My father died three years ago, Before his death, he didn't distribute his property. We are 4 brothers and my mother is also alive. It may be mentioned that my father married my mother divorcing his first wife. But she claims that the divorce was not invalid.. Now, after my father's death, she has filed a case against us and claiming share of my father's property as his legal wife. My question is, is her demand lawful? Please, give me a solution about that as soon as possible.
Sultan Wohid,
On E-mail.

Your Advocate: Reply to your question lies in the question of validity or invalidity of divorce of your father's first wife. It appears from your words that your father divorced her in a way not permitted by law. Law says- "(1)Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talak in any form 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." The provisions of law is mandatory and violation of the same renders the talak ineffective in the eye of law. You have possibly got the reply of all your queries. Law is said to be blind. If law favours her we have hardly anything to do about it. I give my opinion merely on the basis of your words. I do not know the case on records. Engage a good civil lawyer in your case. The engaged lawyer would be in a position to find out good points, if any, for your defence.

Q: My daughter is now around 20 months of age. My husband passed away on the 89th day of our marriage. Is it possible for my in-laws to legally lay claim for upbringing their grand daughter? I have no intention to get married again. So, what is my status according to guardianship of my daughter?
Rokeya Kasim Putool,
Firozshah, Chittagong.

Your Advocate: Your status with regard to the custody of your child is very well footed in law. Under the Muslim law the mother is entitled to the custody of her male child until he has completed the age of seven years and of her female child until she has attained puberty. As for 'puberty' it is said to be attained within the age- range of 14-15 years. Therefore, until that age of your baby you can safely continue as her custodian. Generally mother loses her right to custody under three circumstances, namely, a) if she marries a person not related to the child within the prohibited degree, i.e., a stranger b) if she goes and resides during the subsistence of her marriage, at a distance from the father's place of residence or d) if she neglects to take proper care of her child.
In the circumstances peculiar to you I do not find any potential claimant of custody of your daughter at any point of time unless her welfare slides into stake in your custody.

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