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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: 174
June 19, 2010

This week's issue:
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Your Advocate
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Your Advocaten

Access to justice for the poor

This week your advocate is Barrister Omar Khan Joy of the Supreme Court of Bangladesh and Head of 'The Legal Counsel'. His professional interests include commercial law, corporate law, family law, land law, constitutional law, banking law, arbitration and intellectual property laws. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.

Reader's query
I have been separated from my wife for more than a year now. I would like to get a divorce as she clearly does not want to adjust with my family. Under the circumstances I cannot leave my family and live with her abroad. I would really like a divorce on mutual grounds but she threatens to file case on me if I divorce her. this really scares me. I do not know what to do. Is there any way I can prevent her from filing a case against me? Please clarify if possible how a woman can file a case after the divorce when her 'denmahr' and conditions in the 'nikah nama' have been fulfilled? It just does not seem fair to me.
Shamsuddin, Wari

Thank you very much for your query to the Daily Star's Your Advocate column. Yes, I have fully understood your situation and I must say that this is a very generic problem for many married men now-a-days.

So far as the divorce is concerned, you have every right to divorce your wife. Under the Muslim law, the husband has the inherent right to divorce. In case of a mutually agreed divorce, it is actually a very easy administrative process that can be commenced by both of you by going to a Quazi office. In case when your wife is not willing to divorce you, you may unilaterally initiate the process of divorce by serving her a notice through the Quazi. Once the process is started it will take around 100 days to complete the total process and get the divorce registered as per law. I have on several other occasions, explained the detailed process so far as the divorce is concerned.

However, I am mostly concerned with the second part of your query. This is now very unfortunate that several legal provisions that we enacted to protect legitimate protection to women have been misused to cause illegitimate oppression to men! For example, Nari-O-Shishu Nirjatan Daman Ain is one of them. The provisions relating to nari nirjatan are relatively stronger and it is not very difficult that the accused may have to go to custody. Though bail may be obtained from the court, but going to custody sometimes hampers the reputation and going through the criminal proceedings in the court is definitely not very pleasant for anyone. Taking the advantage of these laws, sometimes the wife or her family uses the same to threaten the husband and his family and make unwarranted demands. I must say that no one can compel you to continue with a marriage that you are not willing to continue. Of course, if you have properly paid the den mohor and give maintenance to your wife after the divorce as per law, then there cannot be any lawful claim against you arising out of the divorce. It is, however, sad but true that allegations of nari nirjatan can be brought against you; though in a false and fabricated manner only with an ulterior motive of harassing you. There is neither any legal way in which you can protect yourself from such malicious prosecution nor can you take any protective measure. At best, while affecting your divorce, say after serving the notice of divorce to your wife, you may lodge a General Diary (G.D.) before the concerned police station stating the fact of threats of false prosecution by your wife. Since the provisions under the Nari- O- Shishu Nirjaton Daman Ain are considerably harsh against the accused, to protect malicious prosecution, section 17 provides for rigorous imprisonment for a term not exceeding seven years and fine in case if someone lodges a false complain or files a false case with intent to cause harm to other person. If you see that your wife is really serious in materializing her threats, you may mention the aforesaid provision to her with a view to convince her not to do anything imprudent and put herself into jeopardy of prosecution as well.

The family matters are best suited to be discussed inside the families! That's why, going beyond the pure legality, I would like to take this opportunity to advice you and other readers having the similar problems, to talk with an open mind with their spouses and try to settle the same internally. If, you cannot mutually reach a decision, invite a common friend or a mutually trusted person, who can give some positive inputs to facilitate your discussion. If nothing helps or where one of the partners is determined to get out of the relationship or when it is impossible to continue the relationship, then again discussion will help. The couple should understand what their best interest is. If their best interest lies in divorce, then each partner shall help the other in completing the process. Since life is one, there is no point of continuing with something which causes pain everyday and cannot do any good. Filing malicious and false case against the partner? Let's not even think about it! I wish you will have a nice life. Take care.

For detailed query contact omar@legalcounselbd.com.


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